Rights available to Charged Government Officials in

quasi-judicial Disciplinary Inquiries

Dr Umesh Kumar Pandey, PhD, MBA, MBL
Former Group Gen Manager (HR) & Head Vigilance, ONGC Group of Companies

The concept of Disciplinary Inquiry is applicable in contracts between Master and

Servant. It’s a situation when the employer (master) has assumed that the
employee (servant) has committed a breach of contract by violating one or more of
the implied or expressed covenants of the service contract. In other words he has
violated the conduct rules, i.e. rules prescribed for employees to adhere to
specific codes of behaviour and performance. It is a quasi-judicial proceeding to
find out the truth in the allegation(s) against an employee known as Charged-
Official or CO in parlance of the subject, contained in a document called "charge-
sheet" memorandum. The disciplinary inquiry comprises objective processes and is
conducted before a presiding officer called Inquiring Authority which is appointed
by the Disciplinary Authority.

Since a charge-sheet is considered to be the ‘proven essence of the

irregularities’, the core purpose of holding a well-structured quasi-judicial
process is to ensure a fair hearing which is one of the two tenets of the principles
of natural justice, viz Audi alter am par tem or ‘hear the other side’. Thus, the
most important purpose of a disciplinary inquiry is to extend the CO a fair and
reasonable opportunity to put across his defence. A fair hearing constitutes the
right to know the evidence whether oral or documentary, the charges imposed, an
opportunity to present the defence and the right to cross-examine the witnesses.
This article deals with the rights the quasi-judicial process grants to the charged
official.

Demonstration of Fair Hearing in Departmental Inquiries

When it is said that hear the other side. It means that hearing should not be
reduced to mere formality and it does not remain confined to only auditory
hearing. It should be effective hearing. The principle or effective hearing duly
ensuring the rights of CO, embraces a larger sphere and includes the following
essential aspects:-
Right to receipt of Notices
Giving of a valid notice to the CO of the facts of the matter and nature of the
action proposed to be taken is a sine qua non of a fair hearing and a right of the
CO. Notice is to be given even if the statute does not contain any provision for the
issue of a notice (Fazalbhai Vs Custodian AIR 1961 SC 284).
Right to know the Evidence Being Relied Upon
The notice must clearly indicate material on the basis of which the proposed
action is being taken. The right to know such material is part of the right to defend
oneself. Then only the person will have a fair opportunity to defend, correct or
contradict them (Kanda vs Govt. of Malaya 1962 A.C. 322). The notice must be
with reference to the charges on which the proceedings are to be held. The person
against whom proceedings are held cannot be punished for a charge different from
the one for which notice had been given. In Petrofiles Co-operative Ltd. Vs.
Collector (1992(59) ELT 144)), the Tribunal adversely commented on the order in
which duty had been demanded in terms of a particular notification though in the
show cause notice duty had been demanded in terms of another notification.
Right to make Representation
The right to make representation requires that the person proceeded against must
have opportunity to peruse all material relied upon. Copies of such material should
be furnished without being demanded and even in those cases where the
documents having been seized from the person/party, are relied upon. Reliance of
any document or material without furnishing the above requisites would render the
ultimate decision bad for failure of natural justice. In Kothari Filaments vs
Commissioner of Customs (Port) Kolkata (Citation:- 2009 (233) ELT 289 (SC) ), an
order was passed with reference to an overseas enquiry report which was not
supplied to the party. SC found the order to be violation of principles of natural
justice, further imposing a fine on the department.
Right to reasonable time to file Reply
After the notice has been received by the person, he must be given opportunity to
make a representation in reply thereto. This opportunity must be real and
effective. This right to make representation also involves grant of sufficient time
to prepare the reply (Jeramandas Punjabi Vs. UOI 1992 (57) ELT 36 BOM). Thought
refusal of further time for preparation of reply is within the discretion of the
adjudicating authority, the refusal should not be arbitrary or fanciful
(Commissioner vs. Prestige Engineering (1989 (41) ELT. 530)).
Right to reasonable Fixing of Dates for Hearings
Another practice being followed in the field is to fix multiple choices by fixing
three dates of hearing for appearance before the Inquiring authority in one letter.
In the case of Bindal Sponge Limited vs. Commissioner of Central Excise,
Bhubaneswar as well as in the case of Afloat Textiles (P) Limited vs. Commissioner
of Central Excise, Vapi, the Tribunal held that such approach is not in accordance
with the principles of natural justice and remanded the case for fresh adjudication
after giving reasonable opportunity to the party to put forth their case.
Right to rebut adverse evidence: Cross Examination
The right to fair hearing involves the right of the affected party to cross-examine
the makers of statements. It has been time and again held that denial of cross
examination of witnesses, whose statements were relied upon, amounted to
violation of principles of Natural Justice.
Refusal to allow cross-examination of
departmental officers constituted violation
of Principles of Natural Justice. Cross
examination of the officers who effected
the seizure cannot be denied on the ground
that it was not relevant for the defence.
It has been laid down that copy of all relied
upon documents to be given and failure to
give such opportunity results in violation of principles of Natural Justice. Officers
connected with the investigation, the department must make them available for
cross examination, if required. Cross examination of expert who conducted the
test should also be afforded.
Requests for cross-examination may be denied under the following situations.
(i) Warranting cross examination of the source(informer);
(ii) When there are enough and more documentary evidences, the copies of all
of which furnished; and
(iii) When the witnesses to be made available for cross examination are in
foreign countries and the expenditure involved will not be commensurate
with the purpose involved etc.
However, refusal of permission to cross-examine witnesses of the CO himself would
not amount to denial of natural justice.
Right to see all the evidences: No evidence at the back of the CO
An essential aspect of the disciplinary inquiry process is to ensure that every
witness is examined in front of the CO and no evidence is relied upon behind his
back. No evidence, either documentary or oral can be relied upon by the Inquiring
Authority of the Disciplinary Authority unilaterally and without providing
opportunity to the CO to react to it on the floor of inquiry by way of considered
admission, cross-examination or arguments.
Right to see the Inquiry Report
The CO has a right to see the Inquiry Report as accepted by the Disciplinary
Authority so that he can make representation against the report, if he so desires.
This is important because the report is the document which deals with the case in
entirety rather than specific facets/components of the same which are deliberated
through specific documents/witnesses.
Right to Reasoned Decision and Speaking Orders
The CO has a right to get a reasoned decision conveyed through a speaking order
rather than simply intimating him about the final outcome of the proceedings. This
is to ensure that the CO gets to know as to which factors have gone against him in
the case and how the disciplinary authority has justified his decision.
Right to Inquiry by an unbiased person
Human nature involves emotion, and where there lays any interest, it is very
difficult to decide on one’s interest which leads to partiality and destroys the very
idea of justice. A person can apply his mind effectively when he follows the path
of impartiality. Therefore, if the CO finds that the officer inquiring in to the case
has any sort of bias, he can raise the issue which is duly considered by the
disciplinary authority and a decision about changing the Inquiring Authority is
taken by the former. Till such time the allegation of bias is not disposed of, the
inquiry hearings are kept on hold. However, the allegation of bias should only be
raised when the IA is having any personal, pecuniary or subject matter interest in
the issues under inquiry and not merely because the CO has suspicions and
apprehensions against him.
As evident from the above, the doctrine of fair hearing is basically a protection
against arbitrary administrative action which comprises within itself a number of
rights for the charged official which needs to be ensured in the process in order to
guarantee an equitable decision.

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