174. Knowledge Spectrum – Discipline – EX-PARTE INQUIRY 91
279. Can the inquiry be held ex-parte if the charged officer seeks adjournment on medical ground without producing medical certificate?
It has been held in the case of Union of India Vs. I S Singh (1994 SCC Supl. (2) 518] that under such a situation, the Inquiring Authority should either ask for a copy of the medical certificate or in case of doubt, direct the charged officer to get examined by a medical officer. Taking recourse to ex-parte inquiry would amount to violation of the principle of natural justice. The following extract is relevant:
So far as the second ground is concerned, a few facts need be stated. An inquiry was held, in the first instance, which was not found to be in order by the disciplinary authority who directed a fresh inquiry. When notices were issued in the second inquiry, they could not be served on the respondent. On a later date, the respondent sent an application stating that he is suffering from unsoundness of mind and that the inquiry may be postponed till he regains his mental health. The respondent also states that he sent his medical certificate along with he is application. (Indeed, according to him, he sent not one but three letters to the said effect.) The report of the Enquiry Officer, however, does not show that he paid any attention to these letters. If, indeed, the letters were not accompanied by medical certificates, as is now asserted by Shri Mahajan, learned counsel for the appellants, the proper course for the Enquiry Officer was to have called upon the respondent either to produce a medical certificate or to direct him to be examined by a medical officer specified by him. The inquiry report does not even refer to the request contained in the said application nor does it mention why and for what reasons did he ignore the said plea of the respondent. The Enquiry Officer proceeded ex parte, in spite of the said letters and made his recommendation on the basis of which the aforesaid penalty was imposed. It is evident from the facts stated above that the Enquiry Officer has not only conducted the inquiry in a manner contrary to the procedure prescribed by Rule 14(2) of CCS (CCA) Rules but also in violation of the principles of natural justice.
280. What procedure is to be followed during ex-parte proceedings?
During ex-parte proceedings, the Presenting Officer should be directed to lead evidence and establish the charge.
As the Charged Officer does not participate in the proceedings, the stage of cross - examination of State Witnesses may not take place. However, the Inquiring Authority is at liberty to put questions as it thinks fit. Power in this regard has been given under Rule 14(14) of the CCA Rules. Inquiring Authority should however ensure that the questions put by it are not such as to establish the charge. Any questions of this nature may present the Inquiring Authority as wearing the mantle of Presenting Officer and cast aspersions on its neutrality.
Even though the Charged Officer is not attending the Inquiry, the Inquiring Authority should ensure that copies of all the documents relating to the inquiry are sent to the Charged Officer - for example the Daily Order Sheets, statements of the witnesses, written brief of the Presenting officer, etc.
The Inquiring Authority should submit its report to the Disciplinary Authority together with other documents as in any other inquiry.
281. Can the Charged Officer be allowed to participate in the ex-parte inquiry at a later stage?
Ex-parte inquiry, once commenced, does not amount to closing the doors for the Charged Officer. This is only an enabling provision which provides for continuing with the inquiry despite non-co-operation by the Charged Officer. It should not be perceived as a penal provision for putting the Charged Officer to a disadvantage. The Charged Officer who could not or intentionally did not attend a few hearings does not lose his/her right of reasonable opportunity of defence. Accordingly, the Charged Officer cannot be prevented from participating in the inquiry at a later stage.
There may be cases wherein the Charged Officer may try to put the clock back i.e. the Charged Officer may like a witness to be recalled and cross-examined. Such requests need to be considered on merit. If the Charged Officer provides sufficient satisfactory reason for non-appearance, the request for putting the clock may be considered.
Thus the position can be summarized as under:
(a) Future participation is a matter of right of the Charged Officer (b) Putting the clock back is a matter of discretion of the Inquiring Authority
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