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TMI Blog2015 (6) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... d that per se would not vitiate the proceedings. - The Enquiry 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. Mere participation of the Presenting Officer as a witness in a domestic enquiry is not contrary to the principle of natural justice and does not render an enquiry or the entire proceedings inoperative or without jurisdiction in the absence of proof of prejudice to the concern employee. - Decided against Appellant. - APO 119 of 2008 WP 2392 of 2001 - - - Dated:- 4-3-2015 - Manjula Chellur, Joymalya Bagchi and Arijit Banerjee, JJ. For the appellant : Mr. Prasanta Kr. Banerji, Adv. For Respondent no. 3 : Mr. Diptendu Majumder, Adv., Mr. Niranjan Ganguly, Adv., Mr. S. K. Ghose, Adv., Mr. Dipak Kr. Mukherjee, Adv. For the State : Mr. Partha Bhanja Chowdhury, Adv., Mr. Rani Kr. Dubey, Adv. JUDGMENT This matter is before us by reason of a reference made by a Division Bench of this Court by an order dated 15th December, 2011 passed in the course of hearing an appeal against the judgment and order dated 7th April, 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Presenting Officer acted as a witness in the enquiry proceeding was an abnormal feature in the conduct of the enquiry. 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 enquiry which was unknown in law. (9) Ld. Counsel for the appellant on the other hand relied on another Division Bench decision of this Court in the case of Life Insurance Corporation of India Ltd.-vs.-Presiding Officer, Central Labour Court reported in 2007 (3) CHN 558. In this case the Division Bench took a diametrically opposite view and held as follows:- 21. Let us now come to the third objection raised by the delinquent and accepted by the Tribunal with regard to the evidence laid by the Presenting Officer. 22. Employer herein being a corporate entity was to act through individuals. The Presenting Officer deposed before the Enquiry Officer. The delinquent had an opportunity to cross-exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... swara Rao was examined only to prove charge No. 2 and also acted as a Presenting Officer. Above all, except making bald allegation that the enquiry is vitiated, it is not shown by the workman as to how the so-called prejudice adversely affected him. This view of mine is further fortified by the following observations made in N. N. Rao v. Greaves Cotton Company, 1973 - I - LLJ - 81 (Bom) : (PP. 85-86) : ..... The final argument has been that G. G. Naik has not only given evidence as a witness but has acted as the prosecutor. We do not see anything strange in this conduct nor any failure to observe any rule of natural justice. After all, G. G. Naik was, as we have already explained, in the position of a complainant and since in a domestic enquiry no counsel can be engaged G. G. Naik was bound to conduct the enquiry before the Enquiry Officer. Since K. G. Naik had come and explained to him in the first instance he (G. G. Naik) had gone into the witness box in support of his own 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 E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enquiry does not get vitiated merely on the ground that the Presenting Officer examined himself as a witness for proving the charges. This is also the view of the Andhra Pradesh High Court expressed in the case of Management of Glaxo India Ltd. (supra). In a domestic enquiry 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. But if he also appears as a witness on behalf of the management, he has to be offered for cross-examination by the delinquent employee. The enquiry will stand vitiated if the delinquent is not allowed to cross- examine him. (17) While the Enquiry Officer himself must necessarily be completely impartial and unbiased, the same cannot be expected of a Presenting Officer. He is after all, the management's representative and his job is to advance the Management's case. In fact, a Division Bench of the Madras High Court observed in the case of R.S. Gopalan-vs.-Current In-Charge and Managing Director, LIC of India reported in 1985 Lab IC 1367, bias of a Presenting Officer in a departmental enqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conformity with the principles of natural justice. (21) It is established law that on Enquiry Officer cannot act as a witness for the management or for that matter for the delinquent employee since a person cannot be a judge in his own cause. However, even an Enquiry Officer is at liberty to put questions to the witnesses and that per se would not vitiate the proceedings. The Workmen in Buckingham and Carnatic Mills, Madras-vs.-Buckingham and Carnatic Mills (1970) 1 LLJ 26 was a case where the Standing Orders had no provision for appointment of Presenting Officer. It was contended on behalf of the dismissed workers that the Enquiry Officer had acted both as the prosecutor and the judge when he recorded the evidence. The Hon'ble Supreme Court observed that what the Enquiry Officer had done in the case was to put questions to the witnesses and elicit answers and allowed workman to cross-examine those witnesses. Similarly, he had also taken the statements of the worker and asked for clarifications framed wherever necessary. Therefore, the enquiry proceedings were completely fair and impartial. (22) In view of the aforesaid discussion, our answer to the question referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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