Thanks a lot for valuable input. in response to first point i am reproducing the exact language used by the PO in respect of non submission of documents to present case:
- “EO to PO:- PO is advised to attend enquiry along with documents required to present the case”.
It was again noted in the enquiry proceedings dated 25.05.2022 that:
“On 26.04.2022, PO was advised to attend the enquiry along with documents to present the case”.
EO to PO:- “Have you brought documents required to present the case?”
PO to EO:- “No, I have not brought the documents to present the case……….I will present all required documents in next date of hearing”.
It was further noted in the same proceedings that:
“PO is advised to present all documents required to present the case……positively on next date of hearing”.
It is noted in the enquiry proceeding dated 05.07.2022 that:
“PO, vide his mail dated 09.06.2022 informed as that the required documents have not been arranged till now, hence requested 10 more days for collecting documents. In view of the request of PO, it has been decided to hold the enquiry on 20.06.2022”.
The Presenting Officer further requested for postponing the enquiry proceeding therefore, the enquiry was refixed for 05.07.2022.
The PO has stated in the enquiry proceedings dated 05.07.2022 when he was asked:
EO to PO “Do you want to produce any documents in enquiry proceedings for presenting the case”.
The PO replied that:
PO to EO:- “No, I don’t want to produce any documents in enquiry proceedings for presenting the case”.
It was further recorded in the enquiry proceeding dated 20.07.2022 that:
EO to PO:- “Further, you are also requested to produce documents required to present the case in enquiry proceedings positively so that enquiry proceedings may be concluded on the next date of hearing”.
It is also a matter of record of enquiry proceedings dated 06.08.2022 that the PO submitted himself that:
PO to EO:- “Now submission of documents from my side is over and I have not to submit any documents either required by the CSO or from my side to present the case”.
It was also recorded that:
EO to CSO:- “PO has informed that no further documents are to be submitted from his side”.
- point no 3. The CSO has not raised a question on the authenticity of the photocopies in the enquiry proceedings. The exact language recorded by EO is as under:
“It is correct that charges as per Charge sheet dated 14.01.2016 are based on Management documents, which are marked in the enquiry proceedings as E-3/1 to E-126 & E-4/1 to 4/107 detailed in the enquiry proceedings dated 26.04.2022” and that “It is correct that imputation of charge was based on photocopies of the documents, which are marked as E-3/1 to E-126 & E-4/1 to 4/107 detailed in the enquiry proceedings dated 26.04.2022”. In view of CSO's objection, it became mandatory for the PO to submit the certified copies of the documents, make the original documents available for inspection and prove them with the help of documentary or oral evidence. But it was not done. No witness was called to prove even the photocopies.
- No documents were supplied to to the EO with the charge sheet dated 14.01.2016. He had demanded the same twice in 2020 & 2021 but none were provided. The first time the CSO was supplied the photocopies after six years of serving of CS on 26.04.22 i.e. on the first day of enquiry. Although the departmental Enquiry Proceedings are not governed by the Evidence Act, yet the basic tenets of the Evidence Act cannot be ignored. The photocopies unless got compared with the original in presence of the notice charged officer cannot be considered as an evidence against him. Also they are to be proved with help of a witness which has also not been done.
- In his initial reply the CSO had denied the allegations.
- The EO had closed the proceedings on 06.08.22 and till date PO has not submitted his brief. He was given 15 days to submit his brief i.e. by 20.08.2022.
- The CSO has already requested the EO to allow him to submit his written arguments on defence in wake of non submission of brief by PO as it was apprehended that the Management on its own would reopen the enquiry proceedings by forcing the EO to accept the request of the PO that he wants to submit the MEs now as he has been able to locate them now. Such things do happen in enquiry proceedings & it is left to the CSO to challenge it in Court.
- There are enough material on record of enquiry proceedings in form of defence evidence to disprove the charges. However, it is humbly submitted that it is settled law that the disciplinary proceedings being quasi-judicial in nature, there should be some evidence to prove the charge which are to be adduced by the Presenting officer and that the Enquiry Officer is a Judge who has to weigh all the evidences i.e., submitted by the Presenting Officer on behalf of the Management and the CSO in his defence and then submit his brief. Also, holding departmental proceedings and recording finding of guilt against any employee and imposing punishment for same is a quasi-judicial function and not an administrative function, hence, authorities have to strictly adhere to statutory rules while imposing punishment.
It is also a settled law that the presenting officer upon analysing the documents both, Management Documents, and Defence Documents, must arrive at a conclusion that there had been an evidence to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact and he cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant defence documents only on the basis of surmises and conjectures. He has to apply his independent mind to all the documents presented in the enquiry proceeding. But here, unfortunately, the Presenting officer has submitted his brief without application of mind, without submitting any Management Document & without analysing the Defence documents.
It is also a settled law that when a major punishment is proposed to be imposed the department has to prove the charges against the employee by examining the witnesses and by documentary evidence. In the instant case no evidence, documentary or oral has been adduced by the presenting officer. The initial burden is on the Presenting Officer to prove the charges in which he has failed miserably.