Defense in departmental inquiry
pandey s
(Querist) 03 April 2015
This query is : Resolved
Hello sir. I am facing a criminal trial as well as simultaneously, my company conducting departmental inquiry. Both the facts in inquiry and criminal trial are identical and same and also the witnesses in criminal trial as well as departmental inquiry are also common. both are approaching the final stage. All prosecution witness trial is over in criminal case and also all prosecution witness cross examination is over in departmental inquiry. In departmental inquiry the company is asking me defense. But the defense is common for both criminal trial as well as departmental inquiry. Can I ask the management to wait for my defense in departmental inquiry till the completion of the trial court verdic since , it may be prejudical to my criminal trial case.. any reference case laws may pls be mentioned ..
Guest
(Expert) 03 April 2015
Your perception is wrong. May the charge in criminal case and the departmental inquiry case be identical and witnesses common, but both the cases are fought on different angles, i.e., to scuttle down the angle of crime in criminal case and to defend case against the charge of misconduct as per the donduct and discipline rules of the department. So, defence can also not be the same in both the cases. If both the cases have been defended with the same line of defence then one case is sure to be lost by you that your defence assistant should have understood appropriately.
If the presenting officer of the departmental inquiry has already submitted his prosecution brief, you cannot postpone your defence brief, failing which, the I.O. would be free to ssume that you don't have anything to defend your case. Submit your defence with reference to the evidence adduced in the proceedings of the departmental inquiry as well as the P.O. Brief, but keeping in mind that the defence should be aimed to counter the charge with specific reference to the rules quoted in your charge sheet, not the sections of the criminal law. That will not be prejudicial to your criminal case.
If you want more advice, click at : "CLICK TO TALK" link available at my profile page.
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Raj Kumar Makkad
(Expert) 03 April 2015
I do agree with Ld. Dhingra sir to the extent that the scale of defence in both matters always remains different hence your demand is a futile exercise.
pandey s
(Querist) 03 April 2015
Thank You very much sir. The Presiding Officer , has not briefed to me till today, and I will take care of your advice. actually, as I have mentioned in my query, the prosecution witness persons are same in both criminal trial and also in the departmental inquiry. in the criminal trial, they just escaped by saying that they do not know anything about the facts in the fir. they simply told before the judge that, as per the head office instruction, they filed fir and also the charge sheet matters given to judiciary,court,police as given by the company head office3 and they restrained before judge by saying. that they do not know any thing, whether this has happened or not whether i am inolved in the irregularities or not. But before the management, they have given statement for departmental inquiry that I am of the Opinion..... that he might have donw this irregularity.. like that . the same prosecution witness told two different statements. it is a case of irregularity and company suspects me only, leaving others in fray. The defense in this case is about the internal arrangements of the company working procedures and it involves many people. I thought that, trial court verdict is likely to be spelled out in few weeks, so I can ask the management to wait till the court verdict. any comments may please be provided.
Devajyoti Barman
(Expert) 04 April 2015
nO, BOTH THE CASE AND THE DISCIPLINARY PROCEEDING CAN SUN SIDE BY SIDE.
Sudhir Kumar, Advocate
(Expert) 04 April 2015
Not able to agree or disagree with experts above.
please intimate what are the charges and facts of the case and also at what stage are both the trials.
Dr J C Vashista
(Expert) 04 April 2015
I agree with experts, and submit reply to the question raised by expert Mr. Sudhir Kumar.
Article(s) of Charge in departmental inquiry and charge framed in criminal case has to be different, may be similar (prima facie) but has to be looked after and defended in different perspective, strategy and approach.
ajay sethi
(Expert) 04 April 2015
agree with dhingraji
alexander
(Expert) 04 April 2015
What are the charges being probed under the Sections of the IPC by the Criminal Court. What are the IPC sections concerning your case?
What is the Term of reference of the Departmental Inquiry. Is your Department a Got dept , quasi-government or totally private.
The judicial Magistrate should not be influened by the outcome of the Departmental Inquiry.If the Dept.Inquiry acquits you with honour, it is not axiomatic that the Magistrate's Court should follow suit.
Likewise if the Dept Inquiry holds you guilty the Magistrate is not bound to declare you guilty if he has a different opinion flowing out of the evidence and his evaluation of the evidence
If your Dept is a Govt one and the Departmental Inquiry is being conducted by a bona fide tribunal,you could take the plea of Res Subju dice and the principle of aborting the possibility ' Double Jeopardy ' granted under the .Constitution. Perhaps it is too late at this stage
You could request your Dept not to declare the findings of the departmental Inquiry till the decision of the Magistrate's Court and that you would not make an issue of the delay that might result on account of this delay.
You could think of approaching the Magistrate's court to issue an Injunction under its inherent power to the Department Concerned to with hold declaration of the judgement of the Departmental Inquiry till the issue has been finally decided by the Criminal Court and that you won't claim any damages or the like for any delay/damage that might ensue
The best would be to have faith in the Judiciary and let the cases run.
What has your advocate to say on this. Do consult a local advocate if you haven't engaged one yet.
Alexander
nom de plume
pandey s
(Querist) 04 April 2015
Thank You very much sir. I summarise below the details of both.
Criminal Case :
FIR lodged by PSU against me before Court on IPC 409,420,467,468. for irregularities in the accounts done by me. The FIR filed by site incharge on the recommendations of Head office at Delhi. Out of 9 witnessess, 3 from police and 6 from PSU employee of the site. All the site prosecution witness of PSU, told before the judge that they do not know any thing about the contents of the FIR. The contents are given to them by the head office , and he simply handed over the same to the police for filing fir.
All the psu witnesses told the same thing. They simply kept away themselves from the con tents of the fir.
Now, Police witnesses trial is going on at the lower court.
In the departmental Inquiry :
The charges framed against me was handed over to me after one and half year of my suspension , and the inquiry started nearly one and half of year of my suspension. I too attended the inquiry held at Noida at the company premises. The charges framed by the company against me are the same matter given in my criminal case fir. similarly, out of total 25 witnessess, company showing in the charge sheet, only 6 psu employees of the site in which this irregularities happend are also present. These 6 persons, has given statement before judge that they do not know anything about the charges. But with the Head office inquiry officer, these 6 persons have given in writing that, From the statements shown to them , IT IS SEEN THAT, the irregularities have been done by me. the financial irregularities mentioned in the charge sheet are supported by SAP DOCUMENTS. from the documents, in which my employee id is appearing they have given their opinion.
Now : Defense. It is a technical factor lying in the face of the documents. As you aware that the documents are the outcome of the processing and , many persons are involved in the processing of documents. The lower court trial is still left with 3 police witness and rest actions. In the departmental inquiry, I have requested for re examination of 6 prosecution witness who are common. and this is to take place at the end of this month.
My query. I hope I have provided almost all the matters connected in criminal trial and inquiry. My query is, according to me, to prove that I am innocent and I am not involved in this financial irregularity, I need to prove that the prosecution witness statements are not acceptable one and it is misleading and I have to put up my defense in support of and in line with the prosecution witnessness. The prosecution witness have recorded two different statements one before judge and one before the inquiry authorities. Therefore i MAY PLEASE BE GUIDED AS TO
1. Is there any harm in expliciting my defense to the departmental inquiry authority, since, the criminal judgement is not declared.
2. Will it be a prejudical to my criminal case.
3. Can I request the departmental inquiry authorities not to declare the findings of the inquiry till the decision of the magistrate's court.
4. On the other hand, If the company, after my submission of defense , took action and sacks me, Can I have any chance of challenging the same before the court of Law.
Kindly give your valuable guidance to me sir. In case still You require any matters in connection with the above query, let me know please sir.
pandey s
(Querist) 04 April 2015
Can I go for intrim injuction from magistrate court , not to declare the departmental findings till court decision
Guest
(Expert) 04 April 2015
You may go, but the court is not likely to interfere with the administrative process of the organisation, unless some instance of injustice or irregularity is established on your part to have been committed in the process of departmental inquiry of the organisation.
alexander
(Expert) 04 April 2015
1. Was the evidence taken on oath in the Departmental Inquiry.?
2, You could use the Provision of ESTOPPEL as mentioned in Sec 115 uf the Indian Evidence Act 1872.
3. Once awitness has stated a particular thing as in the ibstant case thahe witnesses have stated in the Judicial Magistrate's Court that don't anything about the case then they cannot go back on their statements and say something else on the same issue.
4. The Magistrate's Court would or at least should pass an adverse verdict against you if the Court is not convinced about the offence having been committed " beyond a reasonable doubt" ; and so many witnesses denying any knowledge of the offence being committed should be in you favour and if the Court acquits you the acquittal could be of help against departmental inquiry also
Pl consult a local lawyer
Kumar Doab
(Expert) 04 April 2015
The experts have guided you very well.
Apparently the witnesses of the PSU are commanded..........and are cautious too.
You can avail a good defense assistant.
You can avail the services of an able Lawyer/Law firm dealing in such matters.
Mr. Dhingra is from Delhi and may agree to counsel you.
Prepare well for your case.
pandey s
(Querist) 04 April 2015
thank you very much sir
pandey s
(Querist) 04 April 2015
let me update the status by 26th april after attending the inquiry at noida and trial on 10th april.
on 8th april, my challenge writ petition is due for hearing. in which i have challenged the inquiry on the ground that charge sheet provided to me after one and half year of my suspension. and also for reelease of subsistence allowances at the enhanced rate, . My writ has been admitted by hon Hc for final hearing.
Guest
(Expert) 04 April 2015
Ok, you will be welcome any time, with full facts of the case.
Kumar Doab
(Expert) 04 April 2015
Expert Mr.Dhingra is right.
Post full facts of the case.
Sudhir Kumar, Advocate
(Expert) 05 April 2015
I may partially disagree with Mr Alexender.
The principle of double jeopardy does not apply if the criminal trial and deptt proceedings can go separately and parallel.
No statement is taken on oath in deptt proceedings.
standard of evidence are different in criminal trial and deptt proceedings. in Criminal trial the charge should be proved "beyond reasonable doubt" and in depttl proceedings the "pre-poderance of probability" is the standard of evidence. SO the acquittal in criminal case is no guarantee of acquittal in depttl case. In any case the deptt proceedings are expected to conclude earlier.
You have no right to request deptt to withhold findings of the deptt inquiry. Deptt has no such powers. It has obligation (rather policy of Govt and CVC) that inquiry should be concluded early.
Trial judge has no jurisdiction to interfere in the deptt proceedings as it is merely a service matter. Such like injunction can only be given by High Court (in case of PSU) or CAT/SAT (in case of central/state deptt).
There is nothing know as a tribunal for inquiry of such cases in govt deptt or PSU. The deptt has to appoint separate IO/PO for each case against each individual.
Sudhir Kumar, Advocate
(Expert) 05 April 2015
your specific questionas (as understood from given facts) are replied as under :-
1. Is there any harm in expliciting my defense to the departmental inquiry authority, since, the criminal judgement is not declared.
IF YOU DO NOT DISCLOSE DEFENC EIN DEPTT PROCEEDINGS IT WILL BE TAKEN EX-PARTE AND DECISION WILL BE TAKEN AGIANST YOU AND THE CHARGES APPEAR TO BE FIT ENOUGH FOR DISMISSAL FROM SERVICE.
2. Will it be a prejudical to my criminal case.
DO YOU HAVE A CHOICE
3. Can I request the departmental inquiry authorities not to declare the findings of the inquiry till the decision of the magistrate's court.
NO THE PSU HAS NO SUCH POWERS
4. On the other hand, If the company, after my submission of defense , took action and sacks me, Can I have any chance of challenging the same before the court of Law.
YES
Kindly give your valuable guidance to me sir. In case still You require any matters in connection with the above query, let me know please sir.
T. Kalaiselvan, Advocate
(Expert) 08 April 2015
Different opinions though most of them go together at one or the other issue. However, I go with the views of expert Mr. Dhingra on the subject issue.
