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F.No.C-14010/5/2011 -Ad.V

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.

To

 

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.                                                                                  

 

Yours faithfully,

 

 

 (Vijay Kumar)

Deputy Secretary to the Government of India