Natural Justice in Departmental Inquiry

It is always emphasized upon the necessity of observance of the principles of natural justice in the conduct of departmental inquiry by the employer. The rules of natural justice oblige the employer's management to follow certain pre inquiry procedures like informing the employee of the charges levelled against him, providing him the list of witnesses and documents having nexus with the incident to be relied upon in the departmental inquiry so that the CE and his DR can cross check its authenticity and veracity and thereby the CE should be provided with an opportunity to cross examine the contents and discredit their testimonies if required, fair opportunity to cross-examine witnesses and examine witnesses, including himself, in support of his defense and unbiased and proper recording of the evidences adduced by the CE. As such the IO should follow principles of natural justice, so that justice is done with the inquiry proceedings.
With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority

FREQUENTLY ASKED QUESTION - 12

Should Inquiry Officer administer oath to witnesses?

Departmental inquiries need not be conducted in accordance with the technical requirement of criminal trials, but they must be fairly conducted and in holding them, considerations of fair play and natural justice must govern the conduct of the IO. In departmental inquiry the Inquiry Officer should not administer oath to witnesses. Please read General Tips - 15 of this blog.

With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority

FREQUENTLY ASKED QUESTION - 11

Whether in all cases charge-sheeted employees would be allowed to be represented by lawyers in departmental inquiries? If not, when would a refusal to allow an employee to be represented by a lawyer in a departmental inquiry amounts to violation of the principles of natural justice?

The question as to whether the rules of natural justice entitle an employee to be represented by a lawyer or by a union representative as his defence representative in departmental inquiry proceedings is not free of difficulty. In fact, initial view was that retention of the simplicity of procedure was necessary in departmental inquiries as such, the involvement of lawyer in such proceedings was strongly disapproved because it was felt that it would contribute increased formality and delayed hearings. Though legal representation is not an essential element of natural justice in all cases and even the courts generally do not actively encourage participation by lawyers in departmental inquiries. Courts in many cases held the view that denial of legal representation to a charge-sheeted employee would not vitiate the inquiry. The courts also observed that where in a departmental inquiry the charge-sheeted employee is pitted against a legally trained mind, if the charge-sheeted employee seeks permission to appear through a legal practitioner the refusal to grant this request would amount to denial of reasonable request to defend him and the essential principles of natural justice would be violated. As such, though ordinarily courts discourage the involvement of legal practitioners in departmental inquiries in order to avoid delay and complexities, nonetheless, the court cannot ignore that in exceptional cases a representation by lawyer is necessary, for otherwise there may be failure of the inquiry itself and a denial of a proper and effective defence. Sometimes in departmental inquiries, charges made against the charge-sheeted employee are very serious in nature viz. charges of misappropriation, fraud, etc. Offences of misappropriation and fraud are not so simple in nature and involve serious question of law that require to be properly dealt with. Therefore, the adequate adjudication of the question will necessitate the help of persons who are legally trained and if the delinquent employee is not permitted to be represented in the departmental inquiry by a lawyer, he will be prevented from making an effective and proper defence and thereby, ultimately, the principles of natural justice will be violated.

With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority

FREQUENTLY ASKED QUESTION – 10

What should be guidelines for suspension?

It is not necessary that a delinquent employee be suspended after being served with a charge sheet. Where charges are of serious nature, the employee may resort to suspension pending inquiry. There is no hard and fast rule that service of charge-sheet must precede the suspension order. If the misconduct alleged is of very grave nature and the employee is apprehended at the spot of the commission of the offence, the employer in such circumstances may forthwith suspend the employee and then serve the charge-sheet.

In exercising the power of suspension, it has to be exercised with circumspection, care and after application of mind. The DA must make a fair and proper assessment of the matter in the given circumstances and ascertain that prima facie there exist grave and compelling circumstances which in the light of the material available and collected during the primary investigation point to the likelihood of removal or dismissal of the employee from the service. A proper judgement exercised would prevent unnecessary harassment and humiliation of suspension.

With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority

FREQUENTLY ASKED QUESTION – 9

Whether an employee, upon receipt of memo or show cause notice, can demand perusal of documents and records related to the allegations stated in the memo/show cause notice?

Yes, an employee, upon receipt of memo or show cause notice, can request to the management to allow him/her to peruse documents and records related to the allegations stated in the memo/show cause notice. Even in case of the employee posted at different place, he can request to visit the office where the alleged irregularities against the employee have been stated in the memo/show cause notice. So that the employee can go through the relevant documents and records and collect copies of the same from the custodian of documents. This right is provided to enable the employee concerned to recollect the circumstances related to the allegations, so that he/she may be able to provide relevant facts in his reply to the management.

With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority

FREQUENTLY ASKED QUESTION – 8

Whether CE can take assistance of an advocate as DR in the departmental inquiry?

The term ‘departmental inquiry’ indicates that it is an internal matter of the organization. The constituents are expected to discharge their duties and responsibilities through inquiry proceedings as per service rules or standing orders that always laid down the norms and procedure to be adopted for conducting departmental inquiry proceedings. The CE has a right to take assistance of a DR, which is normally a colleague of the CE or representative of the union/association to which CE is a member, as sought by the CE. There are certain service rules for taking assistance of a DR in departmental inquiry within the organization.

As regards taking assistance of an outsider or an advocate is concerned, there is generally no provision to take assistance of such outsider in normal circumstances. However, in case the management or the DA appoints an advocate to present the case on behalf of the management, the CE has a right to have the assistance of an advocate on the principle of equity and fair play. Even where the PO is a law graduate, the CE can demand permission for availing the services of an advocate as DR. However, in other circumstances management may deny availing of services of an advocate as DR.

With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority

Short Note - Bias in Departmental Inquiry

Any favour to decide any dispute, controversy or inquiry without proper consideration of the merit of the case may be termed as ‘bias’. In respect of departmental inquiry the word ‘bias’ has importance and this is used in a wider sense for natural justice. Fairness and working judiciously are important factors for departmental inquiry. Any decisions or findings in a departmental inquiry should be according to the law, without fear or favour and without bias.

The principle of natural justice is an important tool of departmental inquiry and it directs that any action, decision or finding in the departmental inquiry must be free from bias. There must be transparency in the departmental inquiry proceedings. The departmental inquiry must be therefore free from any types of bias namely, personal bias, pecuniary bias, official bias or mala fides.

Bias is often alleged during departmental inquiry. To remain free form biasness, following points will help a departmental inquiry to a great extent:
- IO must not be personally interested in the case of the departmental inquiry.
- IO must be a person with open mind.
- IO must not have prejudged the issue for which he has been directed to inquire.
- IO must not act as a witness in the case.
- IO must not be biased in any manner.
- IO must think dispassionately.
- IO must ignore private feelings on every aspect of the case.

The doctrine to remain free from bias should be followed and applied in all cases of departmental inquiry proceedings with an independent mind to arrive at a fair decision.

With best wishes,

Keshav Ram Singhal

Abbreviation

IO = Inquiry Officer / Enquiry Officer / Inquiring Authority
PO = Presenting Officer
DR = Defence Representative
CE = Charged Employee / Charged Officer
DA = Disciplinary Authority
AA = Appellate Authority