Can a closed Departmental enquiry be reopened before submission of 'Presenting Officer's Brief' and 'Defence Brief'. Be it so, then what are the reasons for such reopening. However in my case it was reopened because the Management Witness participated in the enquiry without his document and the defence raised the objection that he does not wish to Cross Examine the Management Witness on account of non adduce of related management document and the departmental enquiry was closed with an instruction by the Inquiry Officer to take up the matter with the 'Disciplinary Authority'.
Hence, to accord the defence an opportunity, the Disciplinary Authority intervened in between and reopened the enquiry for Cross Examination by the Defence with an adduce of that very Management Document and additional Management Document and Management Witness. Under these circumstances, whether the Disciplinary Authority was right in reopening the Departmental Inquiry or not. PLEASE SUGGEST.
From India, Kolkata
Hence, to accord the defence an opportunity, the Disciplinary Authority intervened in between and reopened the enquiry for Cross Examination by the Defence with an adduce of that very Management Document and additional Management Document and Management Witness. Under these circumstances, whether the Disciplinary Authority was right in reopening the Departmental Inquiry or not. PLEASE SUGGEST.
From India, Kolkata
The right of the delinquent employee is to be heard i.e., present his evidence, cross examine the witness adducing evidence against and the proceedings to be held and decided by an unbiased official. None of these rights are breached by reopening of the enquiry, particularly as it is affording an opportunity to the defence to cross-examine the management witness. The Inquiry Authority closing the proceedings at his end does not mean the disciplinary proceedings has come to an end. That right is only with the disciplinary authority. He only can close the proceedings either by imposing a punishment or exonerating the employee. Till then the proceedings would continue. So there is no illegality committed.
From India, Mumbai
1530From India, Mumbai
I have a different perception based on the stand taken by the delinquent not to cross-examine the management's witness and the Enquiry Oficer's action of closing the enquiry at that stage itself.
It is the duty of the prosecution to prove the charge by examining witnesses and filing documentary evidence. If the management witness fails to file any document it will imply that the management has no documents to be filed as exhibits or it does not want to file them for reasons best known to it. Why the defence chose to object that and refused to cross-examine the witness?
In such a situation, instead of going to the next stage i.e., asking the employee to examine the defence witness, why the Enquiry Officer closed the enquiry at that stage?
The purpose of a domestic enquiry is to find out whether the charges leveled are proved or not by affording equal opportunity to both sides. When such opportunities are given to each side whether they use it or not, it is the duty of the EO to record his adverse inference to that effect and take the enquiry to the next stages and submit his findings based on whatever evidence adduced by both sides during the enquiry only and not to close the enquiry on a stage where one of the parties turned down his opportunity to complete that stage.
I think the above inappropriate act of the E.O and his instruction to take up the matter with the Disciplinary Authority indicate his bias.
In my opinion, the act of the D.A ordering the reopening of the enquiry does not seem to be either to help the delinquent or to follow the principles of natural justice but only to cover up the Presenting Officer's mistake. Had he asked the E.O to continue the enquiry from the next stage, it would have been acceptable. I am of the opinion that though the delinquent's objection might be due to his lack of understanding of enquiry procedure, the E.O's immediate response also equally exhibits his lack of procedural knowledge if not his bias.
Therefore, I would suggest the delinquent to raise his objection in writing to the D.A and ask him to continue the enquiry from the stage where it was closed.
From India, Salem
It is the duty of the prosecution to prove the charge by examining witnesses and filing documentary evidence. If the management witness fails to file any document it will imply that the management has no documents to be filed as exhibits or it does not want to file them for reasons best known to it. Why the defence chose to object that and refused to cross-examine the witness?
In such a situation, instead of going to the next stage i.e., asking the employee to examine the defence witness, why the Enquiry Officer closed the enquiry at that stage?
The purpose of a domestic enquiry is to find out whether the charges leveled are proved or not by affording equal opportunity to both sides. When such opportunities are given to each side whether they use it or not, it is the duty of the EO to record his adverse inference to that effect and take the enquiry to the next stages and submit his findings based on whatever evidence adduced by both sides during the enquiry only and not to close the enquiry on a stage where one of the parties turned down his opportunity to complete that stage.
I think the above inappropriate act of the E.O and his instruction to take up the matter with the Disciplinary Authority indicate his bias.
In my opinion, the act of the D.A ordering the reopening of the enquiry does not seem to be either to help the delinquent or to follow the principles of natural justice but only to cover up the Presenting Officer's mistake. Had he asked the E.O to continue the enquiry from the next stage, it would have been acceptable. I am of the opinion that though the delinquent's objection might be due to his lack of understanding of enquiry procedure, the E.O's immediate response also equally exhibits his lack of procedural knowledge if not his bias.
Therefore, I would suggest the delinquent to raise his objection in writing to the D.A and ask him to continue the enquiry from the stage where it was closed.
From India, Salem
Many a time,EO is not an expert on legal matters and strict following of rules does not take place.As long as injustice is not done and principles on natural justice is not violated, it does not mean enquiry has become irregular or biased.
Here in the circumstance, the EO should give opportunity to cross examine the witness who has presented the document and give chance for Accused officer to rebut evidence by producing documents and/or witnesses in support of his stand.
From India, Pune
Here in the circumstance, the EO should give opportunity to cross examine the witness who has presented the document and give chance for Accused officer to rebut evidence by producing documents and/or witnesses in support of his stand.
From India, Pune
I agree with Umakanthan Sir. But I think that the Disciplinary Authority should have doubted that refusal to give opportunity to cross examine would deviate the whole enquiry. And that is why before closing the enquiry, he had ordered for reopening the enquiry. At the same time I am confused, how to resume an enquiry from the stage it was stopped though final report is still pending because that will also involve summoning the parties.
From India, Kannur
From India, Kannur
Dear Mr.Madhu,
The facts discernible from the questioner's post, had I understood properly, are as follows:
In the domestic enquiry ordered against the questioner who is the charge-sheeted delinquent, as usual, the Management witness was first examined. But, he did not file any documentary evidence substantiating the charges leveled. In such a situation, the delinquent could have cross-examined him with a suggestion that there are no documents to be filed. In stead, the delinquent, in a bit of emotion, refused to cross-examine the MW.
Therefore the E.O ought to have commenced the examination of the delinquent's witness, cross-examination by the management, hearing of arguments etc and submitted his findings. But, he closed the enquiry at that stage and submitted his report accordingly to the Disciplinary Authority.
If one critically analyses the action of the D.A, one can find that the D.A, as if acting impartial, virtually ordered for a denova enquiry/re-enquiry so that the management can file the document/additional documents of its choice substantiating the charges by means of a fresh examination of the management's witness and allowing the employee to cross-examine which he has already forsaken. Certainly, it should not be an opportunity to the management to rectify the mistake done earlier.
That's why I insist that the enquiry , on its reopening, should start from that stage where it was hastily declared to have been closed i.e., the examination of the delinquent's evidence only for the management's evidence was already over.
From India, Salem
The facts discernible from the questioner's post, had I understood properly, are as follows:
In the domestic enquiry ordered against the questioner who is the charge-sheeted delinquent, as usual, the Management witness was first examined. But, he did not file any documentary evidence substantiating the charges leveled. In such a situation, the delinquent could have cross-examined him with a suggestion that there are no documents to be filed. In stead, the delinquent, in a bit of emotion, refused to cross-examine the MW.
Therefore the E.O ought to have commenced the examination of the delinquent's witness, cross-examination by the management, hearing of arguments etc and submitted his findings. But, he closed the enquiry at that stage and submitted his report accordingly to the Disciplinary Authority.
If one critically analyses the action of the D.A, one can find that the D.A, as if acting impartial, virtually ordered for a denova enquiry/re-enquiry so that the management can file the document/additional documents of its choice substantiating the charges by means of a fresh examination of the management's witness and allowing the employee to cross-examine which he has already forsaken. Certainly, it should not be an opportunity to the management to rectify the mistake done earlier.
That's why I insist that the enquiry , on its reopening, should start from that stage where it was hastily declared to have been closed i.e., the examination of the delinquent's evidence only for the management's evidence was already over.
From India, Salem
Ok, I understand. Now the thread starter may please tell us whether our understanding is correct or not.
From India, Kannur
From India, Kannur
Neither the presenting officers brief had come nor the defence brief had come so the question of submission of enquiry report also does not arise. The enquiry was initiated from the stage where it was last left and not de novo. The correct question is that whether the disciplinary authority was right in reopening the enquiry under these circumstances or has vitiated the whole enquiry after causing prejudice to the delinquent. Even the examination in chief was over the defence didn't initiate cross examination and rather requested the eo to strtat afresh from erxamination in chief itself by the presenting officer. And after that one more additional evidence was also introduced which the defence is objecting.
From India, Kolkata
From India, Kolkata
You had mentioned initially that enquiry was closed.
Do you mean to say one witness had given his statement and then he was examined afresh ?
Allowing a witness to depose again just because presenting officer wanted some new evidence to come on record is not in order.
""However in my case it was reopened because the Management Witness participated in the enquiry without his document and the defence raised the objection that he does not wish to Cross Examine the Management Witness on account of non adduce of related management document and the departmental enquiry was closed with an instruction by the Inquiry Officer to take up the matter with the 'Disciplinary Authority'""
Was this witness the official custodian of the said document?
If defence declines to cross examine, the whole issue is different.
If any particular document is required,you are at liberty to ask the management to produce the same.
From India, Pune
Do you mean to say one witness had given his statement and then he was examined afresh ?
Allowing a witness to depose again just because presenting officer wanted some new evidence to come on record is not in order.
""However in my case it was reopened because the Management Witness participated in the enquiry without his document and the defence raised the objection that he does not wish to Cross Examine the Management Witness on account of non adduce of related management document and the departmental enquiry was closed with an instruction by the Inquiry Officer to take up the matter with the 'Disciplinary Authority'""
Was this witness the official custodian of the said document?
If defence declines to cross examine, the whole issue is different.
If any particular document is required,you are at liberty to ask the management to produce the same.
From India, Pune
Yes the departmental enquiry was concluded by the eo without adduce of management document but examination in chief was done by the po in turn to which the departmental enquiry was reopened by the da . That very document was also adduced and one more additional document was also adduced after which the departmental enquiry was over.
From India, Kolkata
From India, Kolkata
Community Support and Knowledge-base on business, career and organisational prospects and issues - Register and Log In to CiteHR and post your query, download formats and be part of a fostered community of professionals.
ER-II- Closed- Notification.pd f
Check LisCheck List ofr Disciplinary Proceedings Domestic Enquiry 11 Sep 09.doc