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

The Jammu & Kashmir and Ladakh High Court has quashed the dismissal order passed against an employee of the Jammu & Kashmir Housing Board, holding that the disciplinary proceedings were vitiated as the Inquiry Officer relied upon statements recorded during a preliminary enquiry without providing the delinquent employee an opportunity to cross-examine the witnesses.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...

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

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