It is applicable in contracts between Master and Servant. Employer (master) has assumed that the employee (servant) has committed a breach of contract by violating one or more of the implied or expressed covenants of the service contract. In other words he has violated the conduct rules, i.e. rules prescribed for employees to adhere to specific codes of behaviour and performance. Employer awards a penalty to the employee, but only after following an exhaustive structured procedure prescribed therefor. Employer starts to methodically investigate, and there after to charge sheet employee setting forth his lapses, if prima facie found to have erred, as per findings of the investigation aforesaid. Based on the findings of an inquiry conducted to find out the truth of the allegations contained in the charge sheet, action is taken on the employee, which may include his dismissal in one end or his exoneration on the other, in case the charges are found not proved or not proved as the case may be.
It is a quasi-judicial proceeding to find out the truth of allegation(s) against an employee (contained in a document called "charge sheet "). The departmental inquiry comprises objective processes and is conducted before a presiding officer called Inquiry Officer. If the allegation is proved to be true, on the basis of evidences adduced in the inquiry, the delinquent employee may be awarded a penalty. The material supporting the allegations against the delinquent employee is made known to him and due opportunities are given to the delinquent employee to submit his defence and explain his conduct in the inquiry, at the end of which the presiding officer submits his findings, as evidenced by the material presented in the inquiry, in his report to the disciplinary authority. Action is taken by the disciplinary authority on the basis of the findings of the inquiry officer. This is the gist of a departmental inquiry and the proceedings are described as quasi-judicial. Giving directly an administrative punishment is a subjective action and deemed arbitrary. Conducting a Departmental Inquiry as aforesaid fulfills the interests of both the management and the employee. A Departmental Inquiry (DI) is thus a quasi-judicial proceeding i.e. an administrative officer conducts a 'judicial-like' proceeding i.e. acts "like a judge".
Employment is a contract of utmost good faith entered into between the employer and employee. It carries implied warranties, in addition to those expressly stated in the contract. These are-
The employer not only provides adequate compensation to the employee, but also renders something more. The employee is accepted as an integral part of the organization. He gets security of service and an assured career. The employee enters the organization at the junior level and moves up the hierarchical order based on his performance and loyalty. The progressively growing life needs of the employee are looked after in the employment. Employment thus provides him a job and a career. In return the employee has to commit absolute fidelity and trustworthiness and to safeguard the bonafide interests of the employer. This is in addition to strict adherence to the contracted terms of service and due discharge of jobs entrusted. If the employee defaults, the employer can invoke his right to institute disciplinary measures and award deterrent punishment, which may include termination of service. Departmental Inquiry is the forum or tool for the employer to administer a corrective step against stray tendency of the employees to deviate from the set course, through punitive action, which at the same time serves as a deterrent or preventive measure for all the other employees.
Quantum of Proof Needed in a Departmental Inquiry to Sustain
the Allegations Leveled against the Delinquent Officer
Of particular relevance to departmental inquiries as distinguished from judicial proceedings is the approach towards the quantum of proof needed to conclude the delinquent officer/accused as guilty.
The ingredients of misconduct/delinquency in criminal prosecutions and departmental proceedings as well as the quantum of proof required in both cases are not identical. In criminal cases, the proof required for conviction has to be beyond reasonable doubt, whereas in Departmental proceedings proof based on preponderance of probability is sufficient for holding the charges to have been proved. As a measure of counter-balance and to provide compensatory safeguards to the delinquent officer, in a departmental inquiry the delinquent employee can avail the opportunity to appear as his own witness and explain his conduct, and prevent the odium of presumptive guilt sticking to him, when he is not guilty. Own evidence by defendant is not accepted in civil proceedings in a court of law. In criminal proceedings the accused may choose this option, but cannot be compelled to be his own witness. Rarely there is need for the accused to submit his own evidence in a criminal proceeding against him, as the prosecution is obliged to bring evidence from its side to prove the offence of the accused beyond doubt. The accused only cross-examines the prosecution witnesses. He may where required additionally produce his own evidence, but he normally never prefers to be his own witness. But in a departmental inquiry the Charged officer is required to submit his defence statement, after the case of the management is closed. In addition he can opt to be his own witness and lucidly explain all irregularities, which seem to appear against him as per the evidences led by the management, but which the charged officer upholds that are actually within the ambit of proper discharge of duties by him. The CO has thus two lines of defence. In the first place he may disprove the charge as unfounded through counter evidence adduced by the charged officer or alternatively without denying the material facts, he may explain his conduct and bring about that he has committed no irregularity, despite the adverse situation having developed. ("Yes, this borrowal account has gone sticky and difficult of recovery, but it is solely due to market fluctuations and demand recession hitting the business, and not on account of my inadvertence"). Such a line of defence can easily be adduced by the charged officer opting to be his own witness, though when CO appears as his own witness, he is liable to be cross-examined by the presenting officer.
If the PO proves the bare facts as mentioned in the statement of imputations, the charges are presumed to be proved. It is the burden of the delinquent employee to explain satisfactory all the circumstances appearing against him and to exonerate his conduct. This principle is common betweenDepartmental Inquiries and judicial proceedings under the Prevention of Corruption Act, 1988. This principle in departmental inquiry is known as concept of 'presumption'. This concept can be better understood by looking to this principle incorporated in the Prevention of Corruption Act.
Section 20 of PC Act, 1988 reads as under: -
"Presumption where Public Servant Accepts Gratification other than Legal Remuneration:
Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate".
There is thus inherently an added responsibility for the delinquent employee in Departmental Inquiries and in respect of Proceedings under the PC. Act, 1988. Certain presumptions are taken for granted and the Delinquent officer is called upon "to prove the contrary". There are, however, several in-built provisions in the P.C. Act for the safeguard of honest Public Servants from hasty or misconceived prosecution. These are explained in the chapter relating to P.C. Act in the legal supplement.
The safeguards to public servant under the forum of Departmental Inquiries can be extended only by providing him adequate opportunities to discover all material evidences relevant to his defence and present his case before the Inquiry officer. To make available this benefit to the delinquent employee, there is an urgent need to accept a code of ethics as represented under the twin concepts of conducting Inquiries, namely-
Quasi Judicial Approach to be Followed in the Conduct and Arriving
at the Findings of a Departmental Inquiry
A Public Authority even in the normal course of administration has to act judiciously. Bias or subjectiveness is the antithesis of the culture and creed of public administration. If this is so in respect of customary executive functions, what should be the objectivity and impartiality that he has to exhibit, where he has to adjudicate a judicial process to find the truth of an allegation against delinquent employee and take action there against? Executive authorities, who are not endowed with the legal back-ground and experience to conduct Inquiries applying complexities of procedural enactment like the Indian Evidence Act, Code of Civil Procedure or Code of Criminal Procedure, cannot act at par with Judges. At the same time they have to act 'like a judge'. They have to be guided by well-established principles, which aim at justice and fair play though not complying with the legal rigidity of laws applied in the course of a trial. The process of taking disciplinary action should conform to minimum standards. It is conducted by administrative authority acting like a judicial authority. It has to be bonafide and lawful, though not legalistic. It absorbs the underlying essence or spirit of law, leaving aside its technicalities.
Quasi judicial approach also underlies all proceedings to adjudicate on any issue, where the proceedings are conducted by administrative officers, like Administrative Tribunals, Incometax Appellate Tribunals, Company Law Board etc. where administrative officers hold judicial responsibilities.
The Person charged with the duty of holding the inquiry must discharge that duty without malice, bias and without vindictiveness. He must conduct himself objectively and dispassionately not merely during the procedural stages of Inquiry, but also in assessing the evidence or material on record while drawing up the final order. A further requirement is that the conclusion must solely rest on the material produced in the Inquiry by way of evidence. It is open to the inquiry officer during inquiry to put additional questions to the witnesses of either the presenting officer or the charged officer, when he feels some important facts in issue are not clear and need additional information. But the inquiry officer in no circumstances can take into account matters outside the records of inquiry.
If this basic approach and spirit are followed, the technicalities of the Indian Evidence Act or the Code of Civil/Criminal Procedure are dispensed with. When the primary spirit of fair play and objectivity are brought into the Inquiry, the report of the Inquiry officer is not vitiated even if there is unintentional non-observance of some prescribed formality or procedure relating to the Inquiry, as long as it does not result in miscarriage of justice to the delinquent officer.
The twin concepts that of an obligation to accept a "quasi-judicial approach" and that of extending to the delinquent employee, the facilities or due opportunities represented by the concept of "the Principles of Natural Justice" in the conduct of the Inquiry are basically overlapping. It is advisable to look to Quasi-judicial spirit as the responsibility or the guidelines for the Inquiry officer to abide, and the extension of the principles of natural justice as a right or privilege of the delinquent employee. The acceptance of the obligation to conduct the Inquiry in a quasi-judicial spirit by the Inquiry officer will result automatically in the delinquent employee benefiting with essential principles of natural justice. Quasi-judicial spirit may be considered as the means to secure the end of extending principles of natural justice to the delinquent employee.
Concept of Natural Justice to be Allowed to the Delinquent Officer?
The term "Natural Justice" is not defined in any law or statute. Rules of Natural Justice are not embodied rules nor can they be elevated to the position of fundamental rights. It is essentially a judge-made law, stressed in several judicial pronouncements. Principles of Natural Justice have now been recognized as an essential ingredient of all quasi-judicial proceedings and in particular in Departmental Inquiries.
The aim of Natural Justice is to secure justice or to put it negatively, to prevent miscarriage of justice. These rules operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it.
(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."
(C.Pitchiah vs. Andhra University - 1961 A.L.T. 317, AIR 1961 A.P.465).
The principles of natural justice are based on two maxims in English law as under;
No one should be judge in his own case (nemo debet esse judex in propriya causa)
Also hear the other side (audi alteram partem)
A judicial authority is required to be impartial and should not have any interest and secondly such authority is also required not to give any decision without hearing the other side.
The Inquiry should be conducted honestly and impartially. Decisions should be in good faith. Justice should not only be done but also seen to have been done.
The inquiry officer conducting the Inquiry should have no bias against the officer proceeded against nor should have any interest in the subject of the Inquiry. A person is said to be biased when his "mind does not hold the opinion, but the opinion holds his mind ".
The charged officer should be informed about the accusations against him in as clear and specific terms as practicable.
Witnesses in support of the charges in the Inquiry should be examined in the presence of the delinquent officer and he must be allowed to cross-examine him.
All documents sought to be relied upon to prove the charges against the delinquent officer should be placed at the outset, and an opportunity given to the charged officer to impeach the value or the validity of such documents
.
The Inquiry conducted should provide adequate opportunity to the officer to produce, oral and documentary evidence on which he relies in order to substantiate his defence and to examine witnesses to disprove the charges. This is also called the doctrine of reasonable opportunity.
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No extraneous material either oral or documentary, which is not produced during the Inquiry, is allowed to form part of the records of the Inquiry, and should not be relied upon to prove the charges. The inquiry officer should not be influenced by any extraneous consideration in arriving at the decision regarding the alleged misconduct of the charged officer.
These provisions are purported to have been incorporated in PNB Officer employees (Discipline & Appeal) Regulations. It is essential to study and understand the regulations in the background of the principles of natural justice.
Reasonable Opportunity Provided under Article 311 of the Constitution
is Comparable to extending Principles of Natural Justice
Article 311 is provided in the Constitution as a counter-weight to Article 310, which postulates the "Doctrine of Pleasure ".
Though Article 311 (2) speaks of " reasonable opportunity " the substance of the constitutional guarantee is nothing but compliance with principles of natural justice
Smt. Nirmala Chakrabarty v. Commissioner for the Port of Calcutta, 1968 Lab IC 584
Detailed analysis of Articles 310 and 311 relating to service conditions of civil servants is attempted in the Chapters covering "Safeguards & Remedies for Public Servant".
