Preliminary Enquiry Evidence Cannot Form Basis Of Departmental Findings Without Cross-Examination: J&K&L High Court

The Court reiterated that evidence from a preliminary enquiry cannot be used in a regular departmental enquiry as it would violate principles of natural justice.

The Court was hearing a writ petition filed by an employee who was dismissed from service following two departmental enquiries conducted against him in connection with alleged irregularities pertaining to two plots of land situated at Housing Colony Baghi-Mehtab, Srinagar and Housing Colony Sanat Nagar, Srinagar. The enquiries stemmed from complaints lodged before the Divisional Commissioner, Kashmir regarding illegal sale of migrant property and involvement of land mafia.

The bench of Justice Javed Iqbal Wani observed,

"It is evident that the evidence recorded in preliminary inquiry cannot be used in regular inquiry as the delinquent is not associated with it, and opportunity to cross-examine the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of natural justice."

The petitioner was employed as Khilafwarzi Inspector with the Jammu & Kashmir Housing Board. Certain complaints were lodged before the Divisional Commissioner, Kashmir with regard to illegal sale of migrant property being plot No. 57 situated at Housing Colony Baghi-Mehtab, Srinagar. The Divisional Commissioner appointed an Inquiry Officer to conduct a preliminary enquiry regarding the sale of the plot, execution of a power of attorney, as well as plot No. 170 situated at Government Housing Colony, Sanat Nagar, Srinagar, and the involvement of land mafia and officials of the Board, including the role of the petitioner.

During the preliminary enquiry, the Inquiry Officer collected records from the Board and contacted the original allottee of plot No. 57, who denied having executed any power of attorney in favour of any person. The Inquiry Officer recorded statements of various persons, including the purported attorney holder, who stated that he had deposited approximately Rs. 16,00,000/- in the bank account of the petitioner and his son in connection with the transaction. The Inquiry Officer concluded that the petitioner was prima facie involved in attempting to transact with the plot and had been a facilitator in preparation and use of documents, recommending that the matter be handed over to the Crime Branch for thorough investigation.

Based on the preliminary report, the petitioner was placed under suspension on January 18, 2021, and disciplinary proceedings were initiated against him. A charge sheet was served upon the petitioner, alleging that he had misused his position in connection with plot No. 57, had financial dealings with the purported attorney holder, and had committed misconduct and abused his official position.

An Inquiry Officer was appointed, who submitted a report concluding that the charges against the petitioner were established beyond doubt. Another charge sheet was served upon the petitioner in connection with plot No. 170, and a separate enquiry was conducted, with the Inquiry Officer concluding that the petitioner had violated the Jammu & Kashmir Government Employees Conduct Rules, 1971. Based on the reports of both enquiries, a show cause notice was issued to the petitioner and subsequently, the impugned order of dismissal was passed.

Court's Observation:

The Court analyzed the distinction between a preliminary enquiry and a regular departmental enquiry, referring to the judgment of the Supreme Court in State of Uttar Pradesh v. Ram Prakash Singh, 2025 SCC OnLine SC 891. The Court noted that the purpose of holding a preliminary enquiry is only to find out whether there exists sufficient material to initiate a disciplinary enquiry against a delinquent employee, and that findings recorded in such preliminary enquiry cannot constitute evidence unless such evidence is produced and subjected to cross-examination during the regular departmental enquiry.

The Court observed that materials brought on record by the parties to which consideration in the enquiry ought to be confined mean only such materials can be considered which are brought on record in a manner known to law. Though the Indian Evidence Act, 1872 is not strictly applicable to departmental enquiries, the principles flowing therefrom can be applied in specific cases, evidence tendered by witnesses must be recorded in the presence of the delinquent employee, and he should be given opportunity to cross-examine the witnesses, the Court underscored.

“… if a documentary evidence is relied upon in a departmental enquiry against a delinquent official not only the contents of the said documentary evidence are to be proved by examining a witness thereof having knowledge of the contents of said documentary evidence but the delinquent employee also is to be provided opportunity to cross examine such witness”,the court opined.

Referring to the Supreme Court judgment in Nirmala J. Jhala v. State of Gujarat, (2013) 4 SCC 301, the Court noted that a Constitution Bench in Amalendu Ghosh v. North Eastern Railway had held that the purpose of holding a preliminary enquiry is only for the purpose of finding a particular fact and prima facie to know whether alleged misconduct has been committed, and on the basis of findings recorded in preliminary enquiry, no order of punishment can be passed.

Applying these principles to the facts of the case, the Court examined the record of the enquiry and found that several statements of witnesses had been relied upon in the enquiry reports in respect of which the petitioner had not been given an opportunity to cross-examine the witnesses.

The Court noted that these statements had been examined during the holding of the preliminary enquiry against the petitioner and were relied upon in the regular departmental enquiry without providing an opportunity to the petitioner to rebut the same by cross-examination.

The Court further noted that even in respect of the enquiry pertaining to plot No. 57, though the Inquiry Officer had opined that there was no evidence showing the involvement of the petitioner in the preparation of the alleged fake power of attorney, yet the Inquiry Officer concluded that all charges against the petitioner stood established beyond doubt. The Court observed that such a finding was ex facie inconsistent, raising serious doubts about the mode and manner in which the enquiry had been conducted.

The Court acknowledged that the scope of judicial review in matters arising out of departmental proceedings is limited, and the Court would not sit in appeal over such proceedings. However, referring to the Supreme Court judgment in Parvin Kumar v. Union of India, 2020 (9) SCC 471, the Court noted that where a decision-making process itself is vitiated by breach of principles of natural justice or on the ground of perversity or non-availability of legal evidence, the Court would be justified in interfering.

Finding that the disciplinary proceedings initiated against the petitioner suffered from serious legal infirmities, the Court allowed the writ petition and quashed the impugned dismissal order

Case Title: Petitioner Vs Union Territory of J&K & Ors.

Citation: 2026 LiveLaw (JKL)

Appearances

Petitioner: Advocate Mr. Hakim Suhail Ishtiaq

Respondents: Deputy Advocate General Mr. Bikramdeep Singh

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