Common Errors, Hindrances & Remedies in the Conduct of Departmental Proceedings
While conducting enquiry into a Departmental Proceedings, the principles of natural justice and the theory of preponderance of probabilities must be kept in mind along with other relevant procedures, rules, and regulations for ensuring that no injustice is meted out to the delinquent officer. The following common errors and hindrances are normally found during enquiry of a Departmental Proceedings:

1. Disciplinary action taken by Incompetent Person
   If disciplinary action is taken by an authority, who has no jurisdiction under the rules, the defect would not be cured because of the said disciplinary action was confirmed by the appellate authority. The proceedings cannot also become valid because of the enquiry was held in conformity with the principles of natural justice.Simply adhering to the tenets of natural justice will not rectify the absolute absence of jurisdiction held by the entity that initiated the proceedings. Ananthakrishnan v. Oriental Fire & Genl. Insurance Co., Ltd., 1988 II LLJ 526 (531, 33) (Ker-DB)
   
2. Starting Departmental Proceedings without holding Preliminary Enquiry
   Departmental Proceedings should not be started without first getting the complaint of misconduct/insubordination etc against the delinquent enquired into by a competent officer. After getting the report of preliminary enquiry and after due consideration only the departmental proceedings should be started.
    
3. Initiation of Disciplinary Proceedings on information which is Vague or Indefinite
   In Zunjarrao Bhikaji Nagarkar v. Union of India, in its observations, the Supreme Court noted that commencing disciplinary actions cannot be founded upon vague or unclear information. In matters of this nature, mere suspicion holds no significance. A justifiable foundation must be present for the disciplinary body to engage in action against the officer in question. 2000 I LLJ 728: AIR 1999 SC 2881: (1997) 7 SCC 409
   
   
4. Relevant Documents not supplied to the Charge Sheeted Employee One of the requirements of natural justice is that copies of documents relied upon against the delinquent employee should be given to him. However, it is not necessary that every document must be supplied to the delinquent employee. Only essential and pertinent documents need to be provided to him.
   Chandrama Tewari v. Union of India, 1988 Lab IC 339: AIR 1988 SC 117 :1988 (56) FLR 323
    
5. Bias on the part of Disciplinary Authority
   When the primary focus of the allegations against the employee pertains to his behaviour concerning the disciplinary authority, the authority itself cannot impartially oversee the case. The principle of not being a judge in one's own case applies, and a person cannot validate his own testimony. Individuals with a personal interest in an investigation must maintain distance from its administration.
   
   Arjun Choubey v. Union of India, 1984 II LLJ 17 (19) (SC): (1984) 65 FJR 493: 1984 Lab IC 915: AIR 1984 SC 1356
    
6. The application of Article 311 not properly done in case of Temporary Government Servants
   The article applies equally to permanent and temporary public servants and probationers.
   
   Jagdish Mitter v. Raghavendrachar, 1967 I LLJ 418: AIR 1964 SC 449
    
7. Enquiry held even after Admission of Guilt
   If a workman, against whom disciplinary proceedings are instituted, admits his guilt, there is no necessity for the management to hold enquiry.
   K. Venkateswarulu v. Nagarjuna Grameena Bank, 1995 II LLJ 492 (AP)
    
8. Defects generally noticed in Charge Sheet
   
   • Date, time, and place of incident are not mentioned.
   • How and where the order is disobeyed or how insubordination or indiscipline has taken place is not mentioned.
   • Incorrect description of the acts of omission, e.g., rude behaviour is insubordination, but in the charge sheet it is mentioned as disobedience.
   • Proper care is not taken to mention the correct expression of negligence, gross negligence, or habitual negligence.
   • The competent authority did not issue the charge sheet.
   • Sufficient time is not given to the delinquent employee to submit the explanation to the show cause notice/ charge sheet.
      
9. Appointment of Enquiry officer at the time of Framing of Charges
   Appointment of enquiry officer at the time of framing of charges is not proper as the disciplinary authority has no occasion to apply his mind to the written statement of the employee. It indicates a clear-cut mind of the management to proceed with the enquiry.
   Pepsu Road Tpt. Corpn. V. Presiding officer, Industrial Tribunal, 1982 Lab IC 1479 (P&H)

 
10. Officer holding Preliminary Enquiry appointed Enquiry Officer
    A person who holds the preliminary enquiry cannot be expected to act in a detached and unbiased manner in the regular enquiry. He is bound to have been influenced during factual investigation made by him in the preliminary enquiry. P. Sreeramulu v. State of Andhra Pradesh, AIR 1970 AP 114 (DB)
     
11. A Witness appointed as an Enquiry Officer
    A person who is himself a witness cannot hold enquiry as he cannot be a judge of his own conduct. He cannot appraise his own evidence either for accepting or rejecting it. Duryodhan Prasad Singh v. State of Bihar, 1996 (72) FLR 297 (Pat)
     
12. Subordinate of the Complainant or the Principal Witness appointed as Enquiry Officer
    There would be failure of justice where the enquiry officer is subordinate to the principal prosecution witness in the case and is also junior to the complainant. Anandram Jiandrai Vaswani v. Union of India, 1983 Lab IC 624 (637): II LLJ 122 (Cal-DB)
     
13. A Person with whom hostility exists of the Delinquent appointed as Enquiry Officer
    A person is not likely to maintain impartiality in an enquiry against an employee who had earlier caused harm to him. N.S. Dhamankar v. Cantonment Board, 1987 I LLJ 401 (403) (Kant): 1987 II LLN 160
     
14. Penalty mentioned in charge sheet
    It is unnecessary to provisionally decide the punishment and mention the same in the charge sheet. Sisir Kumar Das v. State, AIR 1955 Cal 183
     
15. Enquiry Officer added or altered the Charge
    The enquiry officer has no power to add or to alter the charge, which is the function of the disciplinary authority. If he does so, the proceedings are not valid. Subbarao v. State of Mysore, AIR 1964 Mys. 221
     
16. Presence of an Outsider or a Senior Officer in Enquiry
    Presence of an outsider in the enquiry particularly when he was a senior officer of CBI at whose instance an investigation was conducted in the case would be violative of the principles of natural justice. The fact that no objection was taken by the employee to his presence does not make any difference. B. C. Basak v. Industrial Development Bank of India, 1988 (57) FLR 737 (741) (Cal-DB): 1989 I LLJ 122 (126) : (1989) 74 FJR 195.
     
17. Recording of Reasons Not Done
    Recording of reasons for framing the requisite satisfaction is mandatory although it is not necessary to mention them in the order of punishment. Chandigarh Administration v. Ajay Manchanda, 1996 II LLJ 675 (676): 1996 Lab IC 1267: AIR 1996 SC 3152: (1996) 3 SCC 753
     
18. Submission of findings by the enquiry officer proving the Charge beyond any Shadow of Doubt
    
    • Departmental proceedings possess a quasi-judicial character, and the principles of evidence outlined in the Indian Evidence Act, 1872, and the Criminal Procedure Code, 1973, are not fully applicable, as expressly stipulated in the pertinent regulations. It is important to distinguish between the procedures of a criminal trial and those of a departmental action.
    • In Departmental Enquiries, however, the spirit of these enactments should be followed.
      The investigating officer must provide a fair chance for both parties to present their individual arguments, which encompasses a complete opportunity for conducting cross-examinations of witnesses. The proof required in a Regular Departmental Action is not the same as required in a court of law. The standard of proof required in a disciplinary enquiry is that of preponderance of probabilities and not proof beyond reasonable doubt. If there are any rules prescribing a procedure for such enquiry those rules should be complied with substantially if not literally.
    • If there are no such rules, the principle of natural justice and fair play should be kept in view. State of Rajasthan v. Ratanlal, 1967 RLW 266
       
19. Punishment Awarded by the Appellate Authority
    
    • The order of punishment should be passed by disciplinary authority and not by the appellate authority. If the appellate authority makes the order of punishment, the employee is denied the right of appeal.
       
    • In cases where it is deemed inappropriate for the disciplinary authority to impose a punitive decision due to his role as a witness (or if he himself was the complainant), then another officer of higher rank than the disciplinary authority but lower in rank than the appellate authority should be responsible for issuing the punitive decision. Meters and Instruments Pvt. Ltd. V. Dev Dayal Sharma, 1982 Lab IC 766 (768) (P&H): 1982 (45) FLR 90
       
20. Inordinate Delay in Completion of Departmental Enquiry
    The Supreme Court of India has directed all employers, whether governmental or private entities, to finalize departmental inquiry proceedings within a span of six months. Apex Court bench comprising of Justices Chelameswar and Abhay Manohar Sapre made this observation in Prem Nath Bali vs. Registrar, High Court of Delhi

The disciplinary proceedings, against the petitioner in this case, who was a UD Clerk in District Court in Delhi, commenced on 18.07.1990, and continued for more than nine years. He was placed on suspension, followed by a severe penalty of mandatory retirement. Civil Appeal No. 958 of 2010 (order passed in December 2015)

References:

1. https://indiankanoon.org/doc/1564960/
2. https://indiankanoon.org/doc/1328500/
3. https://taxguru.in/goods-and-service-tax/disciplinary-proceedings-officer-merely-based-suspicion-unjustisfied.html
4. https://indiankanoon.org/doc/1478869/
5. https://www.linkedin.com/pulse/principles-natural-justice-dr-g-p-naik
6. https://www.casemine.com/judgement/in/56090f39e4b014971117e4da
7. https://www.linkedin.com/pulse/principles-natural-justice-dr-g-p-naik/
8. https://www.casemine.com/search/in/charge%2Bsheet%2Bgiven%2Bby%2Bincompetent%2Bauthority
9. https://www.scribd.com/document/161536153/Procedure-of-Departmental-Enquiry
10. http://www.hrindya.com/hr-managers-toolkit/disciplinary-procedure/
11. https://rotiodisha.nic.in/files/Project%20Report_16th%20batch/OCS_CCA%20Rule/Suchismita%20Das_16th%20Batch.pdf/
12. https://studentprivacy.ed.gov/ferpa
13. https://www.livelaw.in/complete-departmental-inquiries-within-6-months-supreme-court-tells-state-and-private-employers//
14. https://www.livelaw.in/complete-departmental-inquiries-within-6-months-supreme-court-tells-state-and-private-employers/

Written By: Md. Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565