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Kumar@321   11 May 2024

Calling defence witness

In domestic departmental inquiry, charge sheeted officer is not disclosing the witness designation and department in which he is working and also not disclosing witness incharge details. Charged officer only shared email id of witness .

I have asked repeated time to share these details and witness is also not joing the proceeding on one pretext or the other 

I want to know

1. Whether Charged officer is bound to disclose the full credentials of his witness , specially when his witness is working in govt department 

2. Whether IO is bound to fix date as per convenience of witness 

Y K Agrawal 



Learning

 8 Replies

T. Kalaiselvan, Advocate (Advocate)     11 May 2024

In the departmental inquiry even though the provisions of the Civil Procedure Code and the Evidence Act are not strictly applicable in disciplinary proceedings, the principles behind those provisions cannot be altogether ignored.

Supreme Court has held that once the record comes before the Enquiry Authority, there is no formal need to prove the said record. Supreme Court has observed that strict rules of Evidence Act do not apply in departmental proceedings.

The inquiry authority may not have to wait for the details of the witness on the side of the chrged officer especially if it finds that the charged officer is indulging in dilly dallying tactics by dragging on the procedure endlessly and it can proceed with further course of completing the inquiry without the so called witness which is not forthcoming.

 

P. Venu (Advocate)     11 May 2024

What is the law under which the proceedings are being held?

Dr. J C Vashista (Advocate )     12 May 2024

What is your locus standi to the enquiry / charged official and which department  / organisation / sector  has ordered the enquiry ?

Kumar@321   12 May 2024

Working for empanelled IO in ESIC , ministry of Agriculture etc.

One defence witness which charged officer reportedly working in PMO has only shared witness email id and not shared the witness as well as his incharge credentials 

I have issued notices 2-3 times to appear him for his deposition but he is not appearing on the one pretext or the other. I have asked the witness also to share his credentials and his incharge credentials also but he is not sharing 

1 can witness force to fix date according to his suitability. In one communication he told that he can come only on Sunday and which was not considered by me 

2. Some time back ,I have seen somewhere that supreme court has said that witness can not decide the date but I have searched this order and could not found anywhere 

 

P. Venu (Advocate)     12 May 2024

In this context, you may refer to the fillowing guidelene in the Handbook for Inquiry & Disciplinary Proceedings which could be accessed at https://dopt.gov.in/sites/default/files/Vigilance_Handbook-2013.pdf

CHAPTER – 14 FUNCTIONS OF INQUIRY OFFICER

21. Does the IO have power to enforce attendance of witnesses?

IO does not have power to enforce attendance of witnesses, except when an ad hoc notification in respect of the particular inquiry has been issued by the Central Government authorizing the Inquiring Authority to exercise powers specified in Section 5 of Departmental Enquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act 1972.

22. What is to be done, if a listed witness does not turn up for inquiry?

In case a Government official who has been named as a witness in a departmental proceeding fails to turn up, the matter may be reported to the higher authorities of the witnesses. Para 91 of P&T Manual provides that refusal to appear as witnesses can be construed as sufficient cause for initiating disciplinary proceedings against him.

CHAPTER - 17 CONDUCT OF INQUIRY

35. What happens if a witness fails to turn up for examination?

A government servant summoned by the Inquiring Authority for tendering evidence in a disciplinary proceedings is bound to attend the same. Failure to do so will amount a misconduct. Therefore, if a witness fails to turn up for inquiry without proper justification the Inquiring Authority may report the matter to the controlling officer of the witness so that disciplinary action could be initiated.

The summons to the witness is required to be issued in the form as prescribed at Chapter 42

 

T. Kalaiselvan, Advocate (Advocate)     12 May 2024

You are actually divertig the procedure.

You have not taken any step to summon the witness officially instead you are either requesting or negiotiating with the witness on the suitable dates.

Being an IO you can very well summon the witness if he is named as one of the listed witnesses. 

If he is not listed as witness till date then you cannot compel anyone to appear as witness before the inquiry session at the discrretion of the inquiry officer.

You have to follow the procedures of law. 

The procedure for summoning an official witness has been elaborately explained by expert Mr Venu in his subseqeunt post, you may follow the procedure if you are not aware of them

Kumar@321   12 May 2024

Thanks each and every one 

T. Kalaiselvan, Advocate (Advocate)     15 May 2024

You are welcome for your appreciations.


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