Professional Documents
Culture Documents
11 Chapter 3
11 Chapter 3
11 Chapter 3
CHAPTER-III
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
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.
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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.
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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
41
N.N.Rao v, Greaves Cotton Sc Co. Ltd. (1973)1 LLJ 81 (Bom.)
99
NOTICE OF ENQUIRY :
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.
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.
(b) The enquiry officer should not hold any one guilty of the
charge on suspicion:
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.
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).
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51 Sadasiv Vishnu Malgaonkar v. Genl. Manager, B.E.S.T. Undertaking, 1954 ICR 1027 (SC).
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(b) Departmental officers are best judges of the merits of the work:
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.
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.
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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.
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
INTERPRETATION OF DOCUMENTS :
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 :
(c) Enquiry officer should also decide on the basis of his own
judgment.
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)).
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(a) In writing the report the enquiry officer should not use his own
knowledge.
(c) Enquiry officer should not consider the facts not on record of
enquiry.
was never made before him, it shows that he passed the order
without scrutinizing the record.85
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.
(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
(a) Enquiry officer should not give a finding outside the scope of
the charge.
State ofAssam v. Bimal Kumar, AIR 1963 SC 1613: (1963) I LLJ 295.
Harbanslal v. State ofPunjab. AIR 1962 Punj. 289.
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(c) Effect when enquiry officer gives a finding which is not within
the scope of charge-sheet.
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.
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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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
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-
APPRAISAL :
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.