Denial of IA to D.A to cross examine the PW in proceeding.

[Ziaur Rahman]

I am defending a Central Govt employee in a disciplinary proceeding. My services have been allowed by the I.A to act as defence assistant but the I.A is not allowing me to cross examine the P.W and says that my role is only confined to assist the C.O as a clerk or advisor during proceeding. I.A syas thatit is the C.O who will cross examine himself. I.A wants any order of CCS Rule or rulings of SC or HCs allowing the D.As to cross examine the witnesses. Kindly help.I am agree to pay the professional fee if required. Urgent …SOS

[Dr. Ashok Dhamija]

The procedure for conducting disciplinary proceedings for imposing major penalty is contained in Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965.

Sub-Rule (8) of this Rule lays down about the defence assistant (D.A.) who may be allowed in the proceedings to assist the Government servant (i.e., the delinquent):

“(8)(a)   The Government servant may take the assistance of any other Government servant posted in any office either at his headquarters or at the place where the inquiry is held, to present the case on his behalf, but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of the case, so permits ;

Provided that the Government servant may take the assistance of any other Government servant posted at any other station, if the inquiring authority having regard to the circumstances of the case, and for reasons to be recorded in writing, so permits.

Note :  The Government servant shall not take the assistance of any other Government servant who has three pending disciplinary cases on hand in which he has to give assistance.

(b)        The Government servant may also take the assistance of a retired Government servant to present the case on his behalf, subject to such conditions as may be specified by the President from time to time by general or special order in this behalf.”

Now, sub-rule (14) of Rule 14 lays down the procedure about the examination and cross-examination of the witnesses (also generally called the PWs, or the Prosecution Witnesses) produced on behalf of the disciplinary authority:

“(14)      On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority.  The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant.  The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority.  The inquiring authority may also put such questions to the witnesses as it thinks fit.” [Emphasis supplied.]

As you can notice, this sub-rule clearly lays down that such witnesses (PWs) can be cross-examined by or on behalf of the Government servant. It has two parts:

• Cross-examination by the Government servant himself; OR
• Cross-examination on behalf of the Government servant.

Who can cross-examine on behalf of the Government servant. It definitely refers to the Defence Assistant only. Who else can do it on behalf of the Government servant?

Thus, the statutory rule itself clearly lays down that the Defence Assistant is permitted to cross-examine the witnesses on behalf of the delinquent Government servant.

I don’t understand how can the Inquiring Authority refuse to allow the Defence Assistant in your case from cross-examining the witnesses. There is need for any judgments, when the rule itself is so clear. What is the purpose of having the Defence Assistant if he is not to be allowed to cross-examine the witnesses? You may show this sub-rule to the I.A. in your case.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Ziaur Rahman]

Thanks for your kindness and very prompt reply. The I.A is also supplying a copy of the evidences and cross examination to the P.W in departmental proceeding. Is it allowable? Nowhere it is customary or in practice that a P.W should get a copy of his/her examination in chief or cross examination held during the proceedings. By doing this I.A is presumably providing opportunity to the P.W to fill up the lacuna in next hearing by proper reply. Is it permissible in law? What the law says on this issue? Kindly help Sir.

[Dr. Ashok Dhamija]

If the copy of the evidence and cross-examination is being given to the same witness (i.e., whose evidence has been recorded and who has been cross-examined), there is no harm in it, since it was his own examination and he should know what has been recorded on the basis of his examination and/or cross-examination. In any case, after recording of his evidence, it is read over to him and his signatures are obtained. Moreover, evidence is openly recorded in his presence, so he already knows it.

However, if it is being given to next witnesses who are similarly placed and who are yet to be examined, then it may not be as per the prevalent practices. [However, even in such situation, how would you guarantee if the Presenting Officer shows the copy of evidence to the next witnesses unofficially and explains them unofficially in advance? And, in such situation, you’ll not have any evidence to prove this fact, because it would be done in a stealthy manner.]     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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