Departmental inquiry: Cross-examination can’t be denied: SC

ISLAMABAD: The Supreme Court (SC) has held that opportunity of cross-examination cannot be denied and the departmental inquiry should not be conducted in a cursory manner.

A two-member bench of the apex court comprising Justice Muhammad Ali Mazhar and Justice Irfan Saadat Khan issued judgment in two appeals, filed against the judgment passed by the Sindh Services Tribunal, Karachi.

The court allowed the petitions after converting into appeals and held that the penalty awarded to Ghulam Murtaza Sheikh by the Original, Appellate Authority, and enhanced by the Tribunal from 3 years to 5 years is set aside, and he should be restored immediately to his original position with back date benefits.

Similarly, the court also set aside the punishment awarded to Faheem Anwar Memon by the Original, Appellate Authority and conversion of his compulsory retirement into dismissal from service by the Tribunal and reinstated him in service with back date benefits.

It is quite strange that admittedly 20 witnesses were examined who deposed against the petitioners but the inquiry officer failed to provide any opportunity to the petitioners to conduct cross-examination of such witnesses to discredit their statement or testimony,” says a 10-page judgment, authored by Justice Muhammad Ali Mazhar.

Ghulam Murtaza Sheikh and Fahim Anwar Memon, Senior Superintendent and Deputy Superintendent Jail in Central Prison, Karachi had challenged in the apex court, the verdict of Sindh Services Tribunal, Karachi.

Ghulam Murtaza Sheikh was posted as Senior Superintendent Prison in Central Prison Karachi on 11.05.2017. Two hardcore criminals, Shiekh Mumtaz and Muhammad Ahmed were produced with some other under-trial prisoners in the Anti-Terrorism Court (ATC) without any date of hearing from where they managed to escape on 13.06.2017.

Their production orders were tempered and Rafique Channa ordered their production on the pretext that the accused persons had to give instructions to their Advocates, says the judgment adding that after inquiry, three FIRs were lodged; one at New Town Police Station and two at CTD, Police Station.

In addition thereto, departmental proceedings were also initiated and a charge sheet was issued to the petitioner on 10.08.2017. The DIG (Prison) was appointed as inquiry officer. The inquiry officer recorded the statements of 20 witnesses, but not in the presence of the petitioner, nor was the petitioner allowed any opportunity of cross-examination.

As a result of such inquiry, the inquiry officer found the petitioner guilty and recommended the imposition of major punishment. The petitioner was dismissed from service. He filed Departmental Appeal, thereafter; he filed appeal in the Services Tribunal. During the pendency of appeal, the Appellate Authority decided the Departmental Appeal and converted the major penalty of dismissal from service into reduction into lower post from BS-19 to BS-18 for a period of 3 years.

Though the learned Tribunal dismissed the service appeal but enhanced and modified the punishment awarded to Ghulam Murtaza Sheikh whereby his reduction to a lower post, from BS-19 to BS-18, was changed from 3 years to 5 years.

Similarly, Faheem Anwar Memon was posted as Deputy Superintendent Jail in Central Prison, Karachi, on 14.01.2017 and allegations against him were almost identical that two hardcore criminals escaped from the ATC while the reference of FIRs is also the same, says the judgment.

The court noted that the charge sheet was also issued to this petitioner and the same DIG (Prison) was the inquiry officer and this petitioner also asserted that in the joint inquiry of different allegations, the inquiry officer recorded the statements of 20 witnesses but not in his presence, nor was he allowed any opportunity of cross-examination.

The inquiry officer found the petitioner guilty and recommended the imposition of major punishment. The petitioner was dismissed from service against which he filed Departmental Appeal and after the lapse of statutory period of 90 days, he filed the appeal to the Services Tribunal.

During the pendency of appeal, the Appellate Authority decided the departmental appeal and converted the dismissal from service to compulsory retirement. The learned Tribunal maintained the departmental order of dismissal and set aside the appellate order of converting dismissal into compulsory retirement.

The court held that under the civil and criminal law, the examination-in-chief or mere statement of any witness has no legal value or sanctity unless he appears for cross-examination to the other side.

“No evidence which is accusatorial to the opposite party would be admissible unless such party is afforded an evenhanded opportunity of skimming its exactitudes by cross-examination which is a most effective device invented to unearth the truth”, the court ruled.

The court held that it is not a concession but a vested right, hence not only this right should be safeguarded and made available but this right should be provided for effective cross-examination which is a fundamental limb and is at the heart of due process and the doctrine of natural justice.

“If any such grave lapses are committed by the courts in judicial proceedings or quasi-judicial authorities in their proceedings, it will deduce without any shadow of doubt that the matter has not been decided in accordance with law,” says the judgment.

The inquiry officer in the present case did not adhere to the principle of natural justice and due process of law,” the court held adding that neither the inquiry report depicts that the statements of the alleged 20 witnesses were recorded in presence of petitioners nor any right of cross-examination was provided to the petitioners.

The court declared that the departmental inquiry should not be conducted in a cursory or perfunctory manner. “It is often seen that due to defective departmental inquiry conducted either intentionally or unintentionally, the whole process is overturned by this court or Services Tribunal, therefore it must be a grave concern and caution for the competent authority or authorities that while conducting inquiry and appointing an inquiry officer, they should ensure that the inquiry is conducted transparently, fairly and without violating the due process of law and principle of natural justice,” says the judgment.

The court noted that in the case of Federation of Pakistan through Chairman FBR vs Zahid Malik (2023 SCMR 603), it was held that the right of proper defence and cross-examination of witnesses by the accused is a vested right.

It was further held that not providing an ample opportunity of defence and depriving the accused of the right of cross-examination of departmental representatives who lead evidence and produced documents against the accused is against Article 10-A of the Constitution”, the court noted.

The court directed its office to transmit the copy of this judgment to the Chief Secretary, Government of Sindh, Secretary, Law, Parliamentary Affairs & Criminal Prosecution Department, Government of Sindh, and the learned Advocate General, Sindh, for drawing their attention to compile a “Handbook” of inquiry procedure with excerpts of all relevant provisions of Sindh Civil Servants Act, 1973, Sindh Civil Servants (Efficiency & Discipline) Rules, 1973, Sindh Police (Efficiency and Discipline Rules), 1988, and Sindh (Repeal of the Police Order, 2002 and Revival of the Police Act, 1861) Act, 2011, etc., including the rule of natural justice and due process of law enshrined under Article 10-A of the Constitution.

“Once such handbook is compiled and printed, a copy of handbook should be circulated at the governmental level in all government departments/attached departments for the help, assistance and strict adherence of inquiry officers or inquiry committees so that they may be well-conversant with the precise procedure before embarking on the task of an inquiry and conduct the inquiry proceedings fair and square without any defects and ambiguities”, the judgment concluded.