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Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
(Ad. V Section)
6th Floor, C-Wing, Hudco Vishala Bldg,
Bhikaji Cama Place, New Delhi.
Date the 24th February, 2011.
All Director Generals
All Chief Commissioners of Customs, Central Excise & Service Tax Zones
The Narcotics Commissioner
Directorate of Publicity & Public Relations
Sub: Departmental inquiry under CCS(CCA) Rules, 1965 - consideration of statements recorded earlier in preliminary inquiry or under Customs Act, 1962.
Departmental Proceedings under CCS(CCA) Rules, 1965 are conducted in accordance with the provisions of said Rules and instructions/clarifications issued thereunder. Where an Inquiry is to be conducted to ascertain the truth, the procedure as prescribed under Rule 14 sub-rules ( 3) to (23) thereof is required to be followed. Sub-Rule 14 of the said Rule prescribes the procedure regarding the introduction of documentary and oral evidence by the Presenting officer on behalf of the Disciplinary Authority. In the matter of oral evidence, it provides that 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. 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 leave of the Inquiring Authority.
2 Prior to issuance of then MHA (now DoPT) O.M. No. F134/7/75-AVD.I dated the 11th June, 1976, practice was to disregard any statement made earlier and to record the statement of a witness afresh in the departmental inquiry. However, in the light of certain Supreme Court judgements, the DoPT issued a clarification vide said Office Memorandum that it may be legally permissible and in accordance with the principles of natural justice to take on record the statements made by witnesses during the preliminary inquiry/investigation at oral inquiries , if the statement is admitted by the witness on its being read out to him. Accordingly, it was decided that in future, instead of recording the statement of a witness already recorded at the preliminary inquiry/investigation afresh, it may be read out to him at the oral inquiry and if it is admitted by him, the cross examination of the witness may commence thereafter straightaway. A copy of the said statement should however, be made available to the delinquent officer sufficiently in advance. i.e. atleast three days before the date on which it is to come up at the inquiry. This procedure of reading out the earlier statement to the witness and seek his affirmation enables expeditious recording of the evidence from the prosecution side.
3. Therefore, in respect of the departmental proceedings under Rule 14 of CCS(CCA) Rules, 1965, it is mandatory that oral evidence is recorded in the regular inquiry in the presence of the charged employee who is given full and effective opportunity to cross -examine the witness. Even in cases where an ex parte hearing is held, it is essential that a statement is duly recorded/affirmed in the regular hearing.
4. However, while considering cases of appeal/revision referred to the Board, it has been observed in a number of cases that statements of witnesses recorded in the preliminary enquiry or under the Customs Act, 1962 have been relied upon by the Inquiry officer/Disciplinary Authority even when the witnesses did not appear before the Inquiry officer and affirmed the said statement . In some cases, where the witnesses appeared in the regular oral inquiry but did not affirm the earlier statement, the earlier statement was still relied upon on the consideration that it is permissible in law to rely on retracted statement. It is also seen that statements recorded by a Customs officer under Customs Act, 1962 is routinely relied upon without the witness/complainant appearing before the inquiry officer and facing the cross examination on the plea such a statement has an evidentiary value .
5. It is clarified that proceedings under the CCS(CCA) Rules, 1965 are to be conducted strictly in accordance with the procedure laid down under the said Rule. Proceedings under the Customs Act and under CCS(CCA) Rules are totally of a different and distinct nature. A statement recorded by an officer of Customs are admissible as evidence insofar as they pertain to proceedings under the Customs Act are concerned but the same can not be said to apply to the proceedings under the CCS(CCA) Rules, 1965. Under these proceedings, any statement which is not recorded/affirmed in the course of the regular inquiry and in respect of which full opportunity of cross examination has not been given to charged officer has no evidentiary value, and can not be relied upon by the Inquiry officer/Disciplinary authority.
6. Inquiry officers/ Disciplinary Authorities may keep the above position in view while finalising the Inquiry report/passing the final order respectively.
Deputy Secretary to the Government of India