PRESENTING OFFICER MAY BE A WITNESS IN A DOMESTIC INQUIRY

[Mr. M. GOVINDARAJAN]

The requisite of a valid domestic inquiry are as follows:

• The employee proceeded against has been informed clearly of all the charges framed against him;
• The witnesses are examined – ordinarily in the presence of employee in support of the charges;
• The employee is given an opportunity to cross examine the management’s witnesses;
• The employee is given a fair opportunity to examine his witnesses including himself in his defence if he so wishes on any relevant matter; and
• The Inquiry Officer records his findings with reasons for the same in his report.

The object of holding an inquiry proceeding is to give the delinquent employee a reasonable opportunity to prove his answers and to defend himself against the charges leveled against him.  A domestic inquiry must be in conformity with the rules of natural justice.   The rules of natural justice which are at present confined to the procedural side of law are a body of uncodified moral principles intended to supplement the existing law and not supplant it.   The details of the procedure that are to be followed by the Inquiry Officer in a domestic inquiry are not prescribed in any rules framed under any statute.  The Inquiry Officer may evolve his own procedure in the absence of any guidelines but the procedure must be fair, free from arbitrariness and in conformity with the principles of natural justice.

In a domestic inquiry the management has the right to present its case against the delinquent employee.   This is done through the Presenting Officer.   His job is to adduce evidence in support of the charges.   Generally, he is not a witness.   In this article the issue to be discussed is whether the Presenting Officer could be a witness to prove the charges of the delinquent official in the domestic inquiry with reference to decided case laws.

In ‘S.V.S. Marwari Hospital V. State of West Bengal and others’ – 2015 (6) TMI 476 - CALCUTTA HIGH COURT the Government of West Bengal has referred an industrial dispute between the appellant and the Government to the Industrial Tribunal.  The Dispute arose as the said employee was dismissed from service after a domestic inquiry.  The Tribunal set aside the dismissal order on the plea that the participation of the Presenting Officer as a witness in the domestic inquiry rendered the inquiry as well as the entire proceeding inoperative and without jurisdiction.  In this regard the Tribunal relied on the judgments of Kolkata High Court as detailed below:

• Sarajit Coomer Mazumdar V. Calcutta Dock Labor Board and others, Calcutta’ – LT 1998 (I) HC 431;
• Mohamed Miya V. State of  West Bengal and others’ – 2000 (5) TMI 1064 - CALCUTTA HIGH COURT.

in which the Calcutta High Court Division Bench held that as the Presenting Officer appeared as a witness in the domestic inquiry, the principle of natural justice was violated and therefore, finding of the Inquiry Officer was liable to be set aside and the order of punishment of dismissal imposed on the employee should be quashed.

Against the order of the Tribunal   the appellant filed the present appeal.  The employee relied on the decision in ‘Coking Coal Limited V. Surendra Pratap Narayan Singh’ – 2003 (9) TMI 764 - CALCUTTA HIGH COURT in which the Court observed that the Presenting Officer acted a s witness in the enquiry proceedings was an abnormal feature in the conduct of the Inquiry.   Normally the Presenting Officer has to present the case of a management and he cannot appear as a witness, but peculiarly, in this case the Presenting Officer appeared as a witness and what was submitted by him was taken as Examination-in-Chief and the delinquent was asked to cross examine him.  This was a peculiar method adopted by the authorities in conducting the inquiry which was unknown in law.

The appellant relied on the judgment of Calcutta High Court in ‘Life Insurance Corporation of India Limited V. Presiding Officer, Central Labor Court’ – 2007 (7) TMI 619 - CALCUTTA HIGH COURT.  In this case the High Court held that the employer being a corporate body was to act through individuals.   The Presenting Officer deposed before the Inquiry Officer.  The delinquent had an opportunity to cross examine him.  The Court was unable to find out any law by which the Presenting Officer was precluded from giving any evidence.   In the instant case the Presenting Officer was an employee of the appellant.   He was representing the appellant before the Inquiry Officer.   Hence he was entitled to examine himself.   The High Court did not find anything wrong on that score.

Since there is a direct conflict between the judgments relied by both parties, the High Court referred the matter to the Larger Bench as below-

“As to whether mere participation of the Presenting Officer as a witness in the domestic inquiry is contrary to the principles of natural justice and renders the enquiry and the entire proceedings ineffective and without jurisdiction even in the absence of proof of prejudice to the employee concerned”.

The Larger Bench referred to some judgments.   In ‘Management of Glaxo India Limited V. Presiding Officer, Labor Court, Guntur’ – 1992 (2) TMI 365 - ANDHRA PRADESH HIGH COURT, the High Court held that there was nothing wrong or irregular in the Presenting Officer going to the box as a witness for the management.  In ‘N.N. Rao V. Greaves Cotton and Company’ – 1971 (3) TMI 117 - BOMBAY HIGH COURT the High Court observed that Shri G.G. Naik has not only given evidence as a witness but has acted as the prosecutor.   The High Court did not find anything strange in this conduct nor any failure to observe any rule of natural justice.  Shri G.G. Naik is in the position of a complainant and since in a domestic inquiry no counsel can be engaged.   G.G. Naik was bound to conduct the inquiry before the Inquiry Officer.  Since K.G. Naik had come and explained to him in the first instance, G.G. Naik had gone into the witness box in support of his complaint and thereafter he continued to examine the witnesses in support of his complaint.   This is normally done where legal assistance is not available and we can see nothing wrong in principle in the Inquiry Officer allowing G.G. Naik to continue the proceedings although he was himself a witness.

The Larger Bench was of the view, the fact that the complainant acted as the Presenting Officer by itself will not vitiate a domestic inquiry if no other question of prejudice is there.  There is no principle of natural justice which requires that a person who has lodged a complaint cannot be a Presenting Officer and a prosecutor in a domestic inquiry.  An inquiry does not get vitiated merely on the ground that the Presenting Officer examined himself as a witness for proving the charges.  If the Presenting Officer appears as a witness on behalf of the management, he has to be offered for cross examination by the delinquent employee.   The inquiry will stand vitiated if the delinquent is not allowed to cross examine him.

The Larger Bench was of the view that bias of a Presenting Officer in a departmental inquiry is not very relevant because the control of the proceedings is primarily with the Inquiry Officer and it is he who has to guard the interest of the delinquent also.  The Larger Bench held that if the delinquent employee has suffered any prejudice by reason of the Presenting Officer acting as a witness on behalf of the management, the inquiry proceeding will possibly be held to be vitiated.   The prejudice must be real prejudice is opposed to formal prejudice, affecting some substantial legal right of the employee.   Naturally, the burden is on the employee to establish such prejudice.

On considering the above the Larger Bench answered to the query as – mere participation of the Presenting Officer as a witness in a domestic inquiry is not contrary to the principles of natural justice and does not render an inquiry or the entire proceedings inoperative or without jurisdiction in the absence of proof of prejudice to the concern employee.  The Larger Bench directed to dispose the appeal in the light of the opinion rendered by the Larger Bench.