Rajasthan High Court bars use of Section 161 CrPC statements to impose pension penalty without cross-examination

Jaipur: The Rajasthan High Court has held that a statement recorded under Section 161 of the Code of Criminal Procedure has no independent evidentiary value in departmental proceedings unless the witness is examined and made available for cross-examination, and that reliance on such a statement violates principles of natural justice.

Justice Ashok Kumar Jain, while allowing a writ petition filed by a retired government employee, ruled that disciplinary authorities cannot base findings of misconduct or impose major penalties, including forfeiture of pension, solely on untested statements recorded during criminal investigation Vilayati-Ram.

The court reiterated that although strict rules of evidence do not apply to departmental inquiries and the standard of proof is preponderance of probabilities, the minimum requirement of fairness must still be met. This includes producing material witnesses before the inquiry officer and affording the delinquent employee an opportunity to cross-examine them. A Section 161 CrPC statement, the court observed, can only be used for contradiction or omission under Section 162 CrPC and cannot be treated as substantive evidence.

The High Court further held that where an inquiry officer records a finding of exoneration, the disciplinary authority, while disagreeing with such findings, must clearly indicate the evidence relied upon and ensure that the proposed material was part of the inquiry record. Reliance on material never put to the delinquent employee or examined during inquiry renders the punishment arbitrary and illegal.

The court also emphasised that before invoking Rule 7 of the Rajasthan Pension Rules, 1996, the disciplinary authority is required to record a clear finding as to whether the conduct amounts to “grave misconduct” or “grave negligence”. Withholding 100% pension without such a finding is contrary to settled law.

Applying these principles to the case, the High Court found that the entire punishment order was founded on the statement of a Tehsildar recorded under Section 161 CrPC during investigation of a criminal case. The witness was neither examined in the departmental inquiry nor produced before the criminal court, and no opportunity of cross-examination was given to the petitioner.

The court noted that the inquiry officer had, after a full departmental inquiry, exonerated the petitioner of all charges. The disciplinary authority reversed this finding solely on the basis of the police statement, which was not even disclosed as proposed evidence in the disagreement notice. The petitioner had also been acquitted in the criminal case arising from the same allegations.

Holding that the punishment order dated August 19, 2020, suffered from violation of natural justice and perversity, the High Court quashed the order forfeiting 100% pension for life and directed that the petitioner be granted all consequential benefits.

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Case Title
Vilayati Ram vs State of Rajasthan & Others
S.B. Civil Writ Petition No. 13646/2020
High Court of Judicature for Rajasthan, Bench at Jaipur

Advocates
For the petitioner: Mr. Tribhuvan Narayan Singh
For the respondents: Mr. Archit Bohra, AGC, with Ms. Sweekriti Sharma;
Mr. Rahul Lodha, AGC; Mr. Dilip Singh