Applicability of evidence act indepartmental inquiryy
Prabhat Kumar
(Querist) 24 April 2012
This query is : Resolved
In a departmental inquiry, subsequent to the first stage advice of the cvc, can the delinquent officer cross examine the complainant and his staff who has given false evidence to cvc during the preliminary inquiry.Further are the provisions of the Indian Evidence Act applicable in respect of such cross examination during the departmental proceedings.
Raj Kumar Makkad
(Expert) 24 April 2012
The witnesses who have given their evidence in preliminary enquiry on the basis of which the disciplinary authority took decision to charge-sheet the delinquent employee, cannot be cross-examined.
Though Indian Evidence Act is not strictly followed but its main characteristics are followed in departmental inquiries,
prabhakar singh
(Expert) 25 April 2012
The right of the delinquent to cross-examine a witness who has given evidence against him in a departmental proceeding is implicit in the reasonable opportunity to be given to him under Article 311 (2)since in departmental proceedings the rules of evidence laid down in the Evidence Act are, strictly speaking, not applicable .
The scope or mode of cross-examination in relation to the departmental enquiries have not been clearly set out anywhere. But there is no other variety of cross-examination except that envisaged under the Evidence Act. It follows, therefore, that the cross-examination in departmental enquiries should, as far as possible, conform to the accepted principles of cross-examination under the Evidence Act.
Adv.R.P.Chugh
(Expert) 25 April 2012
Endorse what Seniors have said
Deepak Nair
(Expert) 25 April 2012
Well advised by the learned experts above.
venkatesh Rao
(Expert) 25 April 2012
You can cross examine them if they are cited as witnesses of Disciplinary authority. If they are intentionally left out, you can seek the copy of preliminary inquiry and seek the inquiring authority to summon them as your witness or as court witness. Though it appears alien to the established principles that evidence act is in terms not applicable to inquiries, yet it shall be allowed as per the principle of natural justice and reasonable opportunity.
Prabhat Kumar
(Querist) 25 April 2012
Thanks for your valuable guidance.
Sudhir Kumar, Advocate
(Expert) 27 April 2012
The witnesses who have given their evidence in preliminary enquiry on the basis of which the disciplinary authority took decision to charge-sheet the delinquent employee, can be cross-examined, if :-
(i) They are listed as witnesses in prosecution
(ii) If defence witnesses and declared hostile.
You are also saying that some persons have made false evidence to CVC at 1st stage advise. CVC does not do so. It is the department who conducts investigation and seeks CVC advise.
You career is not meant for mature experiments as you do not even know the basics of the disciplinary proceedings (as apparent from your blog). You have right to be represented through any serving or retired Govt servant of your choice. You should exercise such right.
Guest
(Expert) 27 April 2012
Dear Prabhat,
Probably there is some missing link in your question due to which you have fetched some contradictory replies.
It is not clear whether by the term "preliminary inquiry", you intend to convey preliminary investigation prior to issue of charge sheet and 1st stage CVC advice or the preliminary hearing after issue of charge sheet and appointment of an Inquiring Authority.
If by preliminary inquiry you intend to convey the stage of preliminary investigation prior to issue of charge sheet, the complainant and his staff can be cross-examined during the witness stage only if they have been listed as witnesses of the case. If they have not been listed as witnesses by the prosecution side, or even not produced subsequently as additional witnesses by the prosecution, no cross-examination would happen. However, the defence is free to call them as their own witnesses to examine them. They cannot however be cross-examined by defence unless they are declared as hostile.
If you intend to convey the preliminary hearing by the duly appointed Commissioner for Departmental Inquiries, no witness is called and made to appear during the preliminary hearing stage.
A departmental inquiry is a quasi judicial proceeding, so Indian Evicence Act does not apply, though the procedings are conducted in a similar fashion as like a judicial proceedings and the spirit of the Evidence Act is not violated.
So, in the light of the aforesaid reasons, you may please first verify and clarify, to which stage of of the departmental proceedings (investigation or inquiry stage) your question refers to.
