PRELIMINARY ENQUIRY FROM MANAGEMENT ANGLE IS WRONG-NO CHARGE CAN BE PROVED ON THIS BASIS-SHOULD NOT BE PART OF MGMT.DOCUMENTS Preliminary Enquiry is intended to find out facts of the complaint against an employee. The Primary object is the as certain whether there is a prim facie case. Wherever an intimation is an apprehension about the commission of an act of misconduct, a preliminary enquiry may be conducted. The authority which can start preliminary enquiry need not necessarily be the Disciplinary Authority as the basic purpose is collection of the facts in regard to the alleged conduct. Preliminary enquiry may also be held ex parte i.e. in the absence of the person against whom complaint is being investigated. However, there should not be any hesitation to give a chance of personal hearing by the fact finder to concerned employee if he feels the need for the same. Sometimes giving such an opportunity to an employee may render further investigation in the matter unnecessary. The preliminary enquiry report along with the evidence collected by the investigator is examined by the appropriate authority to come to conclusion as to whether there exists any prima facie case of misconduct. The officer responsible for the decision should take care not to express, as far as possible, any definite opinion on the final out come of the case, as the purpose is not to decide the question whether the employee is guilty or an allegation is proved. This is a stage where certain facts have come to the knowledge of the authorities which prima facie suggest that there appears to be some act of omission and/ or commission by the employee which could lead to misconduct under the relevant Regulations. It has been held by the Supreme Court that preliminary enquiry is really for the satisfaction of the employer to decide whether punitive action should be taken before deciding to hold a regular enquiry and also to collect the facts with regard to the conduct of work of the employee and also the evidence which is needed to assess before proceeding to take further disciplinary action in the matter. It is therefore necessary that during the course of preliminary enquiry copies of necessary documents referred to in the enquiry are collected and attached to such fact finding report. The originals of such documents should be placed t secured place to use them as and when required if regular enquiry is initiated. It is not necessary to hold formal preliminary enquiry before proceeding with departmental action if sufficient evidence is available. No Regulation provides that holding of preliminary enquiry is a must before commencement of the departmental action. There are no rules prescribed as to how the fact finding should be conducted. As such it can not be stated that the preliminary enquiry was defective. The defect in such an enquiry does not vitiate the regular departmental enquiry. Very often the records of the preliminary enquiry are not made part of the regular enquiry. It may also be clarified that although the purpose of preliminary enquiry is to find out whether there is a prime facie case or not but even if the preliminary enquiry suggests no prima-facie case, the Disciplinary Authority is free to proceed to start a departmental action having regard to the facts and circumstances before him. If more than one person is involved and preliminary enquiry is conducted for all of them, but ultimately if the Disciplinary Authority decides to proceed against on or few only there cannot be any question of discrimination so far as preliminary enquiry is concerned. During the course of enquiry, the Enquiry Officer or the Disciplinary Authority are required to consider only the records placed or evidence adduced during the course of regular enquiry and should not get into statements made/ documents Collected during the course of preliminary enquiry if the employee is not given an opportunity to represent against those documents and to cross examine those witnesses during the regular enquiry. It is now well settled law that if the Charge Sheeted Employee (CSE) is not furnished with the copy of the preliminary enquiry report on the basis of which enquiry was initiated, there is no illegality, since the preliminary enquiry report was not relied upon in the regular enquiry. However, if in exceptional circumstances where the findings of EO are solely based on the preliminary investigation report and the statements made in the preliminary enquiry and the same are not supplied well in advance to the delinquent employee and the persons making the statements are not produced for cross examination by the employee in the regular enquiry, failure to supply copies of preliminary enquiry and not giving opportunity to cross examine such witnesses will vitiate the departmental enquiry as it would be volatile of principles of natural justice. The purpose of preliminary enquiry is that when an apprehension is expressed through a complaint or otherwise that an employee has breached the terms of employment, propriety, or committed misconduct or improper behavior which is subversive of discipline; preliminary investigation is done to get into the truth or otherwise of the allegation under the circumstance of each case with a view to enable to frame specific charges against the employee or to close the case. Thus it is only an enabling device. Generally when an investigation is started against an employee, it gets publicized & is likely to create a sense of humiliation, inconvenience and loss of prestige of the employee against whom preliminary enquiry is held. Therefore, care should be taken to avoid such preliminary enquiry merely on surmises or inferences which are not supported by any apparent evidence. This is required because even if the employee is exonerated during the course of preliminary enquiry, the scars of the same are likely to remain and he continues to face after-effects of ordeal of such an enquiry. This may adversely affect his prestige and in turn affect his perception towards the organization and may lead to a less effective person. BASIC CHARACTERSITICS OF PRELIMINARY INVESTIGATION 1. It is not a formal enquiry and only an enabling device. 2. It can not be a substitute of departmental enquiry which is quasi-judicial in nature. 3. It can be held ex parte. 4. The report of Preliminary investigation need not be produced in the enquiry unless it is used in the enquiry as evidence/relied upon for arriving at the findings. 5. It can be held on instructions other than those of disciplinary authority. 6. If the facts and circumstances warrant, it can be held confidentially. PURPOSE OF PRELIMINARY IVESTIGATION 1. To ascertain the actual facts and circumstances of an incident/ or an allegation or complaint. 2 To locate the misdeeds/mistakes of the employee to be charged. 3 To exhibit the awareness of Management. 4 To ally excitement as a tactical measure. 5 To enable the authority to take further preventive measures to avoid re-occurrence. 6 To take control of the records/evidence to avoid tampering/manipulation. PRELIMINARY ENQUIRY REPORT AS EVIDENCE:- 1.we have to consider the most relevant issue involved in this case.The PO has placed a very heavy reliance on the statement made in the preliminary inquiry. Therefore, the question does arise as to whether it was permissible to take into consideration contents of preliminary investigation and statements recorded in the preliminary inquiry, which had been held behind the back of the CO, and for which he had no opportunity to cross-examine either of them. 2. A Constitution Bench of this Court in Amlendu Ghosh v. District Traffic Superintendent, North-Eastern Railway, Katiyar, AIR 1960 SC 992, held that the purpose of holding a preliminary inquiry in respect of a particular alleged misconduct is only for the purpose of finding a particular fact and prima facie, to know as to whether the alleged misconduct has been committed and on the basis of the findings recorded in preliminary inquiry, no order of punishment can be passed. It may be used only to take a view as to whether a regular disciplinary proceeding against the delinquent is required to be held. 3. Similarly in Chiman Lal Shah v. Union of India, AIR 1964 SC 1854, a Constitution Bench of this Court while taking a similar view held that preliminary inquiry should not be confused with regular inquiry. The preliminary inquiry is not governed by the provisions of Article 311(2) of the Constitution of India. Preliminary inquiry may be held ex-parte, for it is merely for the satisfaction of the government though usually for the sake of fairness, an explanation may be sought from the government servant even at such an inquiry. But at that stage, he has no right to be heard as the inquiry is merely for the satisfaction of the government as to whether a regular inquiry must be held. The Court further held as under: “…..There must, therefore, be no confusion between the two inquiries and it is only when the Government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishment indicated in Article 311 that the government servant is entitled to the protection of that Article, nor prior to that.” (Emphasis added) (See also: Government of India, Ministry of Home Affairs & Ors. v. Tarak Nath Ghosh, AIR 1971 SC 823). 4. In Naryan Dattatraya Ramteerathakhar v. State of Maharashtra & Ors., AIR 1997 SC 2148, this Court dealt with the issue and held as under: “…..a preliminary inquiry has nothing to do with the enquiry conducted after issue of charge-sheet. The preliminary enquiry is only to find out whether disciplinary enquiry should be initiated against the delinquent.Once regular enquiry is held under the Rules, the preliminary enquiry loses its importance and, whether preliminary enquiry was held strictly in accordance with law or by observing principles of natural justice of nor, remains of no consequence. (Emphasis added) In view of above, it is evident that the evidence recorded in preliminary inquiry cannot be used in regular inquiry as the delinquent is not associated with it, and opportunity to cross-examine the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of natural justice. 5. In Ayaaubkhan Noorkhan Pathan v. State of Maharashtra & Ors., AIR 2013 SC 58, this Court while placing reliance upon a large number of earlier judgments held that cross-examination is an integral part of the principles of natural justice, and a statement recorded behind back of a person wherein the delinquent had no opportunity to cross-examine such persons, the same cannot be relied upon. The preliminary enquiry may be useful only to take a prima facie view, as to whether there can be some substance in the allegation made against an employee which may warrant a regular enquiry. 6. “A prima facie case, does not mean a case proved to the hilt, but a case which can be said to be established, if the evidence which is led in support of the case were to be believed. While determining whether a prima facie case had been made out or not, the relevant consideration is whether on the evidence led, it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence”. (Vide: Martin Burn Ltd. v. R.N. Banerjee, AIR 1958 SC 79) (See also: The Management of the Bangalore Woollen Cotton and Silk Mills Co. Ltd. v. B. Dasappa, M.T. represented by the Binny Mills Labour Association, AIR 1960 SC 1352; State (Delhi Admn.) v. V.C. Shukla & Anr., AIR 1980 SC 1382; Dalpat Kumar & Anr. v. Prahlad Singh & Ors., AIR 1993 SC 276; and Cholan Roadways Ltd. v. G. Thirugnanasambandam, AIR 2005 SC 570). 7. The chargesheet was accompanied by the statement of imputation, list of witnesses and the list of documents. However, it did not say that so far as Charge was concerned, the preliminary enquiry report or the evidence collected therein, would be used/relied upon against the appellant. Natural justice is an inbuilt and inseparable ingredient of fairness and reasonableness. Strict adherence to the principle is required, whenever civil consequences follow up, as a result of the order passed. Natural justice is a universal justice. In certain factual circumstances even non-observance of the rule will itself result in prejudice. Thus, this principle is of supreme importance. (Vide: S.L. Kapoor v. Jagmohan,AIR 1981 SC 136; D.K. Yadav v. JMA Industries Ltd., (1983) 3 SCC 259; and Mohd. Yunus Khan v. State of U.P. & Ors., (2010) 10 SCC 539) The preliminary enquiry and its report loses significance/importance, once the regular enquiry is initiated by issuing chargesheet to the delinquent. Thus, it was all in violation of the principles of natural justice. Material at the back of the employee it is mandatory that oral evidence is recorded in the regular inquiry in the presence of the charged employee who is given full and effective opportunity to cross –examine the witness. Even in cases where an ex parte hearing is held, it is essential that a statement is duly recorded/affirmed in the regular hearing. In other words any statement which is not recorded/affirmed in the course of the regular inquiry and in respect of which full opportunity of cross examination has not been given to charged officer has no evidentiary value, and can not be relied upon by the Inquiry officer/Disciplinary authority. There are many cases where the position is cleared by various courts :- [Supreme Court - (1969) 2 SCC 262; AIR 1970 SC 150 - A.K. Kraipak vs. Union of India] There must be ever present to the mind of men the fact that our laws of procedure are grounded on the principle of Natural Justice which require that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings which affect their lives and property should not continue in their absence and that they should not be precluded from participating in such proceedings. [Ramseth vs. Collector of Dharbang, AIR 155 PAT 345] The expression Natural Justice conveys the notion that the result of the process should be just. There are two concepts underlying this doctrine, namely, the authority deciding the dispute should be impartial and the party to be affected should be given full and fair opportunity of being heard. Inquiry Officer should not take any extraneous material relevant to the charge or material not brought on record in the inquiry, into consideration. He should not look into the preliminary enquiry report or report of investigation by the Police or any other record or documents, when they are not part of the record of inquiry. He should not consult any legal or other officer and rely on his advice. He should not make any reference to any such advice in the inquiry report. He should not impart his personal knowledge into the inquiry. If it is established that material has been relied upon behind the back of the charged employee without disclosing it to him, the inquiry proceedings will be vitiated (State of Assam Vs. Mohan Chandra Kolita, AIR 1972 SC 253; State of AP Vs. S.N.Nizamuddin Ali Khan, 1977 LLJ 106-SC). The EO should not take any action on information which he receive, unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it -State of Mysore v Shivabasappa Shivappa, (1964 ILLJ SC, per Venkatrama Ayyar). The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules contained in the Evidence Act - Central Bank of India Ltd. V Prakash Chand Jain (1969 IILLJ 377 SC, per Bhargava,j.) A officer who is to answer a charge must not only know the accusation but also the testimony by which the accusation is supported. For instance, if a document is relied upon by a witness and also by the enquiry officer in his finding, it must be made available to the delinquent before he is called upon to the Industrial Tribunal (1966 IILLJ 282, per B.N. Banerji). In the case of Tata Iron & Steel Co. V Central Govt. Industrial Tribunal (1966 IILLJ 749 Pat), it was held that withholding of important piece of evidence namely, documents, reports, etc., which have bearing on the charges from the persons charged are sufficient grounds to show that the principles of natural justice have been violated in the domestic enquiry. If the findings of the enquiry are based on reports given by the superior officers but, such reports are not made available to the concerned workmen nor are the officers made available for cross examination, the enquiry would not be fair and proper Sur Enamel & Stamping Work Ltd. V their Workmen, (1963 IILLJ 361 SC per Das Gupta J.) It is well settled principle that a document or piece of evidence not included in the memorandum of charges and not disclosed to the party charged cannot be made the foundation of the findings against the delinquent. Such a procedure militates against the principle of natural justice and would vitiate the proceedings –G.S. Sial V President of India and others, (1981 Lab IC 59 All). If a charge-sheeted workman requests the enquiry officer to order the management to produce two officers just for cross examination and not as defence witness, the enquiry officer is justified to reject the request. He cannot compel the company to produce the officers - Ruston & Hornsby Pvt. Ltd. V T.B. Kadam, (1975 IILLJ 352) The workman is entitled to reasonable time to prepare and adduce defence in a domestic enquiry. When a workman is asked to present his defence in an hour, held there was failure of natural justice and the domestic enquiry was bad - Delhi Cloth and General Mill Co. V Thejvir Singh, (1972 ILLJ 201). There is a two-fold test to identify Perversity of a Finding. The first test is that, the finding is not supported by any legal evidence at all and the other test is that, on the basis of the material on record, no reasonable person could have arrived at the finding complained of -Central Bank of India V Prakash Chand Jain, (1969 IILLJ 377 SC). Petitioner was dismissed not on charge served on him but on the other facts and circumstances which were never disclosed to him. As he had no opportunity to meet those charges, it was held that, there had been a failure of the principles of natural justice.-Raghabans V State of Bihar, (AIR 1957 Pat. 100) STATE OF ASSAM Vs. M.K. DASS SLR 1970 SC 444 “The decision must not be influenced by an extraneous matter collected at the back of employee”. Recording of statements of witnesses or adducing of evidence at the back of the charged employee without providing sufficient opportunity.
Posted on: Sat, 27 Dec 2014 09:32:40 +0000
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