Top court draws line between inquiry, trial

Says standard of proof depends on balance of probabilities

ISLAMABAD:

The Supreme Court has ruled that the standard of proof in a departmental inquiry is not equivalent to or comparable with the standard of proof obligatory or indispensable in a criminal trial.

"A departmental inquiry is embarked upon to sift allegations of misconduct, where the standard of proof depends on the balance of probabilities or preponderance of evidence," said an eight-page judgment authored by Justice MuhammadAli Mazhar.

Justice Mazhar was part of a division bench led by Chief Justice of Pakistan Yahya Afridi which set aside an inquiry into misappropriation in the Public Health Engineering (PHE) Department and annulled the imposition of a penalty/fine amount and its recovery to the extent of the petitioners.

The court noted that the inquiry officer cannot be equated with a trained judicial officer, but at least the procedure provided for guidance should be adhered to.

"A departmental inquiry should not be conducted in a cursory or perfunctory manner, in which the stake of the employee is much higher than that of the employer," it said.

It said the department may conduct a de novo inquiry strictly in accordance with PEEDA 2006 against the present petitioners based on the show-cause notices/statements of allegations issued initially, and provide a reasonable opportunity to defend the charges.

"[These include] the right to produce oral and documentary evidence and to cross-examine witnesses of the department/management produced by the departmental representative during the course of the inquiry," it said.

It said if a callous or reckless approach is adopted, violating the procedure and/or declaring the employee guilty without observing the codal formalities, principles of natural justice, or the right to a fair trial/due process, the ultimate sufferer would be the employee, who may lose his job.

"So, for all intents and purposes, the inquiry officer must perform his duties with caution and provide a fair opportunity of defence to the delinquent, rather than concluding the inquiry in a slipshod manner.

"It does not matter how many pages are dedicated to the inquiry report; what actually matters is the quality of the inquiry and the affording of a fair opportunity of defence to the accused. It should also be kept in mind that due to a defective inquiry, the whole process may be overturned.

"Therefore, the competent authority, while ordering the inquiry and appointing an inquiry officer, should ensure that the inquiry is conducted transparently, fairly, and without violating the due process of law and the principles of natural justice," it said.

The verdict said a fair opportunity of cross-examination afforded to the opposing party provides leeway and a possibility to expose flaws in testimony to disprove the charges, both in civil and criminal matters, including domestic/departmental inquiries conducted under labour laws or civil servant laws.

Yet again, the purpose of conducting inquiries, on one hand, is to fix responsibility of the delinquent vis-à-vis the charges levelled against him in the show-cause notice or statement of allegations, but at the same time, it also aids and facilitates the identification of the actual culprit or delinquent.

The order also noted that in the case of Zahid Malik, the court had invited the attention of the government to compile a "Handbook of Inquiry Procedure" with excerpts of all relevant rules.