Cross-Examination in Workplace Disciplinary Inquiries in India

Internal disciplinary inquiries in private and public sector establishments form an interesting part of employment law jurisprudence in India. While the statutory framework in India provides little guidance as to the manner in which disciplinary proceedings should proceed in the event of alleged misconduct by an employee, the courts in India, through judicial pronouncements from time to time, have been instrumental in setting some ground rules for employers.

This helps to ensure that the universal principles of natural justice are followed while conducting an internal disciplinary inquiry, including up to arriving at a decision establishing the misconduct of an individual. 

In this article, we examine one of the most important facets of an internal disciplinary inquiry cross-examination. We review how the legal framework on cross-examination in internal inquiries has evolved over the years, through judicial decisions on the form and manner of cross-examination in cases of employee misconduct and the evolving best practices as followed by the private sector in this regard.

While there is no statutorily codified structure for disciplinary inquiries, the underlying principle that permeates the process entails compliance with the principles of natural justice, which broadly translate into hearing the defence of the employee facing the charges.

The principles of natural justice not only envisage giving an opportunity to the employee to put forward their position when questioned by the duly-appointed inquiry officer/panel, but also envisage cross-examination of management representatives/complainants and witnesses by such employee.

The object of cross-examination is primarily to discover the facts of the issue and/or to cast doubt on the statement made by the management/complainant. Cross-examination is deemed such a critical element of the principles of natural justice by the Indian judiciary that its absence affects the validity of the inquiry itself as shown by Sur Enamel and Stamping Works Private Limited v Their Workmen ((1964) 3 SCR 616). 

However, employers are often confronted with situations where the misconduct is so apparent  that conducting an inquiry would be an exercise in futility. For example, if the employment contract forbids any form of employment with a third party and there is clear evidence of an employee joining another organisation while serving the current employer, conducting a full-fledged inquiry with cross-examination of management witnesses to reach a finding that is evident from undisputed facts may not serve any purpose for any of the stakeholders.

Case law jurisprudence has not factored in such practical considerations. Having said that, the Bombay High Court noted that matters of rational inferences and prudent calculations of the employer from the facts discovered cannot be matters of pleading and evidence an interesting observation in Siddhanath Krishnaji Kadam v Dadajee Dhachjee and Company Private Limited (1978 (80) BomLR 614).

Another commonly observed issue in disciplinary inquiries is the form that the cross-examination takes. There are situations where the subject matter of the disciplinary inquiry is a complaint filed by an employee against their reporting manager or even the head of the establishment (say, the managing director of a company). In such cases, a verbal cross-examination by the respondent may create an intimidating atmosphere for the complainant despite the management assuring impartiality in the disciplinary process.

However, the courts emphasise verbal cross-examination as a matter of norm and accept cross-examination through interrogatories (exchange of a questionnaire that may either be anonymous or named) only as a matter of exception, since the latter not only causes delay in conclusion of the proceedings (as a party may deliver one set of interrogatories after another to elicit a detailed/clearer response) but also impairs the right of a party to confront a witness see Dr SC Garg v Kirori Mal College (WP (C) 13275-76/2005).   

As a matter of good practice, employers are generally advised to impress upon their inquiry officers/panels that cross-examination through interrogatories should only be adopted if a specific request is made in this regard by any of the parties to the disciplinary process, with their reasons adequately recorded in writing.

It is important to appreciate that the parties to a workplace cross-examination would probably not have the requisite legal acumen to conduct the process in the most appropriate way. Therefore, the inquiry officer/panel appointed to conduct the inquiry should be one that strikes the necessary balance between allowing an employee to have an effective opportunity to question the other side and ensuring that the employee avoids irrelevant questions see State of Bombay v Narul Latif Khan (AIR 1966 SC 269).

Furthermore, to the extent that the inquiry officer/panel disallows a question to be posed to the counterparty, the same should be recorded in writing.

In cases where the employer establishment does not fully comply with the principles of natural justice, including cross-examination, judicial forums are, now more than ever, not inclined to automatically overrule termination of employment, but instead ask for evidence to demonstrate the existence of misconduct.

If the employer furnishes material evidence before the relevant judicial forum to establish the misconduct of the employee (whose services have been terminated for cause), the judicial forums (including writ courts) are likely to refuse to quash the order of termination of employment.  

Having said that, compliance with the principles of natural justice for conducting an internal disciplinary inquiry, including cross-examination, may save significant time and effort on the part of the employer should the matter turn litigious, because in cases where such principles are followed, judicial forums do not typically sit in appeal to evaluate the internal processes followed in the case on its merits.

Dismissals arising out of misconduct constitute one of the most litigated subjects in India as far as employment litigations are concerned. The key to ringfencing ones interests in such cases is to have internal protocols/guidelines regarding the procedure to be followed while conducting the internal disciplinary inquiry and to document each step within such process in minutes and reports, including any deviations from established principles.