Sudden change in venue of departmental proceedings.
S.B.adil rahman
(Querist) 21 February 2019
This query is : Resolved
I am engaged as a Defence Assistant for the delinquent in a departmental proceeding which is 2 years old. There are two prosecution witnesses. Out of which one officer in the rank of Assistant Commissioner of Police had denied any knowledge about the charges brought against my clients. The prime Prosecution Witness is an IPS officer whose posting is about 70 km away from Kolkata as S.P of particular district. When the said IPS officer was posted in Kolkata, the Enquiring Officer did not examine him as the prime prosecution witness no.1. The venue of alleged misconduct is Kolkata where the cause of action arose and is being inquired into by the E.O in Kolkata. Though the prosecution witness i.e. IPS officer visits Kolkata twice in a week but he is reluctant to face the inquiry and cross examination. The Disciplinary Authority was informed of his reluctance, when the Disciplinary Authority ordered the Enquiring Officer to change the venue of departmental proceeding from Kolkata to the place of posting of the IPS officer and examine/cross examine him in his SP office in a different town. In the meantime without knowledge of the delinquent or his defense assistant the E.O surreptitiously went to the office of the IPS officer to his town and examined him in absence of the delinquent and his Defence Assistant. The S.P has told to the Enquiring Officer to issue notice to the delinquent for going to the town where he is posted on a particular date. E.O has also not provided the copy of the examination in chief of the said IPS officer. I had sent a representation to the Enquiring Officer requesting him to use his power by issuing notice to the prosecution witness(I.P.S officer) under section 4 The Departmental Proceedings (Enforcement of Attendance of Witnesses and Production of Documents)Act 1973 (West Bengal Act XXIV of 1973 but the Enquiring Officer is so much terrified that instead of using his power, he has issued the notice to the delinquent to come to the office of the said SP for inquiry. I have protested in writing and personally believe that in this departmental proceeding the IPS officer on whose report the proceeding had been started with the help of his counterpart in Kolkata who is the Disciplinary Authority, wants to create a psychological pressure on the delinquent. Moreover, neither the department will provide any vehicle for to and from journey of the delinquent nor will give any Travelling Allowance to him. I would like to ask to my learned friends that when the cause of action has arisen in Kolkata and half departmental inquiry has taken place in Kolkata, then what is the legality of the notice issued to the delinquent ordering him to appear in the office of SP(erstwhile DCP in Kolkata)? Kindly guide or advice me as to what should be my role as an advocate/defence assistant of the delinquent? Can anyone provide me the rulings of courts in this regard. What should be an course of action and whether it should be placed in writing before the Disciplinary Authority of the delinquent(Who is directing the E.O from behind the curtain to take the venue to other city for holding inquiry) or should approach the Applicant Authority for his orders with request to change the E.O or issue direction upon the prime witness no.1 i.e. IPS officer.
Sudhir Kumar, Advocate
(Expert) 22 February 2019
If you're defece assistant and calling changed officer as "delinquent" then you are not ethical to your job.
You have a duty to prove him innocent.
Sudhir Kumar, Advocate
(Expert) 22 February 2019
Change of venue is not illegal.
Changing without notice to Charged officer and def ass, not allowing cross examination, not providing TA/DA, not giving copy of priceeding. All is illegal.
You should give bias petition against IO (charged officers generally do not agree)
Guest
(Expert) 22 February 2019
Neither examination-in-chief, nor cross examination in the absence of the charged officer is valid in law, unless the C.O. has given express consent for E-in-C or the Cross to be conducted in the presence of his defense assistant.
Further, venue of inquiry can never be the office of the witness. Apparently, the I.O. is unduly being influenced by the witness cum Police Officer. The Charged Officer can declare the I.O. to be biased and can request the Disciplinary Authority to change the I.O. due to his bias, not being able to conduct inquiry impartially being prone to easily influenced by the witness. The delinquent official cannot get justice in such circumstances.
Dr J C Vashista
(Expert) 24 February 2019
I fully agree and appreciate the acumen and advise of expert Mr. PS Dhingra.
Venue can not be changed at the behest or arrogance of a witness, howsoever, powerful person the witness may be.
Submit an application to the EO as well as Convening Authority for unnecessary delaying tactics.
S.B.adil rahman
(Querist) 24 February 2019
Can any one from the panel of experts provide me any citation of Apex Court or any other High Court? I will be obliged.
Guest
(Expert) 24 February 2019
You seem to be in some misunderstanding. Citations of courts cannot be made applicable during the process of the departmental inquiry, a quasi judicial inquiry, nor the one belonging to some other case can be made binding unless specific order from the competent court is obtained in favour of the delinquent in his own case.
Further, the Apex Court or High Court won't entertain any such case for any interim order unless departmental channels are exhausted by the Charged Officer. So. unless the Disciplinary Authority on representation considers and conveys his decision about the case of bias, prejudice or change of the Inquiring Authority, the case of the delinquent would not stand in any court.
Guest
(Expert) 24 February 2019
Dear Dr. JC Vasishta,
Thank you very much for appreciating my advice.
S.B.adil rahman
(Querist) 24 February 2019
No Sir, I wanted the rulings/citations for knowing about the circumstances of those particular cases. The citations would not be used in departmental proceedings b'coz of its difference with the criminal case and departmental proceedings. The violation of the principles of natural justice,prejudice to the COs and privileged status to a PW who is an IPS officer and complainant in the departmental proceeding is the factor. Well venue of the inquiry in half way can not be changed but for argument sake, if it is changed then how it is prejudicing the COs except that they would be put under psychological pressure while cross examining their erstwhile boss. In this case what if the Disciplinary Authority issues the order to the E.O (which he has done verbally) to ask the COs either to visit the office of the SP which is far away from the place where alleged misconduct had been committed or to change the Defence Assistant who is raising objections? The ruling will give some more avenues to explore in proving the illegalities during arguments and nothing else. One more thing, the Disciplinary Authority has not changed the E.O despite allegation of bias against him.Thanks for pondering on the issues.
Guest
(Expert) 24 February 2019
Mr. Adil Rehman,
Your latest post very clearly reveals that you did not raise your initial query based on any real case in which you would have been supposed to be involved, either as a Charged Officer, or as a Defense Assistant.
Raising any query on hypothetical basis cannot help you in any way, if no such case happens to exist. If you asked for argument sake, as mentioned in your latest post, you should not have tried to waste time of experts without making mention of the facts of some real case. Suppositions work only in moot court cases.
In your initial query, you never made a mention that the venue of inquiry was changed on verbal direction of the Inquiring Authority or the disciplinary authority. Not only that, you have also not stated anywhere in your initial query that the Disciplinary Authority has not changed the E.O. despite allegation of bias against him, as you stated now.
Your question pertained simply to ask for advice what to do, as your text clearly makes a mention, "What should be an course of action and WHETHER IT SHOULD BE PLACED IN WRITING before the Disciplinary Authority of the delinquent (Who is directing the E.O from behind the curtain to take the venue to other city for holding inquiry) OR SHOULD APPROACH the Applicant AUTHORITY FOR HIS ORDER TO CHANGE THE E.O or issue direction upon the prime witness no.1 i.e. IPS officer. "
THAT CLEARLY REVEALS THAT no such action was taken to get the I.O. changed, WHILE YOU HAVE CHANGED THE STANCE NOW IN YOUR LATEST POST
BETTER BE CLEAR IN YOURSELF, WHAT IS THE TRUTH AND WHAT YOU WANT TO DO. .
However, if your query pertained to some real problem, you never stated that the I.O. changed the venue verbally. A Charged Officer is not bound to attend the inquiry at any changed venue without the formal written order.
MY ADVICE, IF YOU DO NOT KNOW THE RULES & PROCEDURE OF DEPARTMENTAL INQUIRY, BETTER NOT TO SPOIL THE CASE OF THE CHARGED OFFICER. LET HIM CHANGE THE DEFENSE ASSISTANT, IF IT IS A REAL TIME CASE. Else read the rules of inquiry and Government of India's decisions/ instructions thoroughly before proceeding further in the case. A DEPARTMENTAL INQUIRY CASE, ONCE SPOILED FOR WANT OF KNOWLEDGE OF RULES & REGULATIONS, CANNOT BE POSSIBLE TO BE SET RIGHT EVEN UP TO THE SUPREME COURT LEVEL. Even citations of court cases do not help in such cases.
S.B.adil rahman
(Querist) 24 February 2019
Sir, first this is genuine case. For sake of privacy I did not disclose the names or places. Second, it is E.O who has issued the written order to attend at a different venue but under verbal dictate of the Disciplinary Authority. As per Govt. of India's instructions or CVC, the COs are State Government employee and are guided by Police Regulations Bengal 1943 which is silent on the venue of inquiry or other procedures of disciplinary proceedings. Many courts e.g. Bombay High Court (Nagpur Bench WP 1978 of 2011, Allahabad High Court in J.J.Puri Vs Punjab National Bank in decide in the year 2015 , Jharkhand High Court in A.N.Mishra vs Hindusthan Steelworks etc. have elaborately given direction to the Disciplinary authorities about the venue of disciplinary proceedings in which it is said that venue will be the place where cause of action arose. State Government employees are governed by their own departmental rules and regulations which in instant case is inadequate. Your question about Truth in short is one that a prosecution witness/complainant (an IPS officer, erstwhile boss of the COs) who had submitted the preliminary inquiry report which culminated in instant proceeding has to be examined and cross examined. The E.O under the verbal dictate of the Disciplinary Authority has issued written notice to the COs to attend further inquiry in a District which is far away from Kolkata. The COs have given objections to the E.O and requested him to conclude rest of the inquires in Kolkata. The E.O is adamant and has been insisting the COs to go to the remote district which will create severe inconveniences to them. I am handicapped so can not undertake 4 hours long train journey and that is why the request to this forum. Sir, I am defending in departmental proceedings for quite a long time with 60-70% success. It was an intricate and a new issue for me and hence I had sought the opinions of expert at this forum because this is the only forum where the experts from all over India gather. My next course of action will be to write to the Disciplinary Authority to change the E.O, which he will not do, then instead of going to State Administrative Tribunal W.B what is the other remedy at administrative level? I hope I am clear.
Guest
(Expert) 24 February 2019
Actions on the part of the Defense Assistant are desirable than presumptions, as you said, the Disciplinary Authority would not change the E.O. Even if rules are not clear, you have to bring every such event in writing with your objection, which you may feel improper. Rest will be seen by the Appellate Authority and finally by the court, if not taken in to consideration by the departmental authorities at the departmental level. Nothing should be left on guess. Let them prove your objections are wrong.
S.B.adil rahman
(Querist) 25 February 2019
Thanks Dhingra Saheb! This is now clear to me and I got confidence by your opinion.
Guest
(Expert) 25 February 2019
You are welcome, Adil.
