Labour Law & Hr Consultant
Legal Analyst, Hrm
Suryanarayana P.v.
Staff Of High Court

1) In departmental enquiries can the Enquiry Officer refer to the contentions and arguments of the charged officer in defence without reference to the contentions and arguments of the presenting officer and give report solely finding defects in defence? 2) Can the department rely on the defects in defence without establishing its own case and report against the employee?
From India, Bengaluru
Dear Suryanarayana,

Basically, the purpose of domestic enquiry or departmental enquiry is to prove the charges of misconduct alleged by affording all the reasonable opportunities to the delinquent as per the Principles of Natural Justice. Even though the Enquiry Officer is appointed by the Management, may be an outside professional or a subordinate officer to the disciplinary authority of the establishment, he is deemed to be an independent authority in the matter of enquiry. Therefore what is more important is that there should be no bias on the part of the enquiry officer both in the conduct of the enquiry and in his findings as well. " Bias " means " a predisposition to decide for or against one party without proper regard to the true merits of the dispute".In disciplinary proceedings, the onus of proving the charge lies on the shoulders of the prosecution. Therefore, if the enquiry officer reaches his conclusion without adverting to the contentions of the prosecution but solely based on the defects noticed in the defence, certainly he is biased and on this score the enquiry can be vitiated.

From India, Salem
Sir Thanks for the reply. Can you cite any authorities/citations in this regard. So also can the department depend on the flaws in the defence for proving the charges
From India, Bengaluru
Dear Suryanarayana,

In the absence of proper description, as to what type of defects of the defence have been pointed out by the E.O./I.O., i.e., whether in agreement or conflicting with the P.O's contentions or whether with reference to the evidence adduced during the enquiry proceedings or not, your query is merely of an academic nature that can attract varied and conflicting answers from the readers/ experts.

However, since the P.O's report is provided to the charged official well before submission of the defence brief, it is for the charged officer to scuttle down the charge/ charges or the contentions of the P.O., as based on the evidence adduced during the inquiry proceedings. Both the submissions of the well as the Defence are, more or less, independent in nature just in aid of making view points of the E.O. crystal clear on the case. However, the Defence is free to take the adverse points of contentions of the P.O. to refute them by bringing forth the facts of the case through his defence brief to help the E.O. not to get biased with the contentions of the P.O.

In fact, the evidence adduced during the enquiry proceedings is sacrosanct for the findings of the Enquiry Officer, rather than the contentions of the P.O. The Defence is provided an opportunity to give its own observations on the contentions of the P.O. If the Defence is silent on the contentions of the P.O. the enquiry officer is supposed to analyse the evidence adduced during the inquiry proceedings vis-a-vis the submissions of the Defence, provided the submissions of the Defence are charge specific, not raising undue and uncalled for extraneous issues. So, he is free to give his observations on the submissions of the Defence with reference to the analysis of the evidence and his findings out of such evidence. He is free to leave aside the contentions of the P.O. without any comment, if those are in conformity of the allegations leveled through the Articles of Charge.

However, the E.O. does not enjoy any right to give his findings on the basis of his own knowledge or assumptions, other than the evidence adduced during the inquiry proceedings. If he does so or leave some vital points of the evidence adduced during the inquiry, only then he can be labeled with bias or prejudice.

So, if you are really facing any such problem, you must come forward with appropriate description of the case.

From India, Delhi
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