Tag Archives: evidence

Major Punishment – Examination of Witnesses

In Subhash Chandra Sharma v. Managing Director, 2000 (1) UPLBEC 541, it was held as under:

          “The Court also held that in the enquiry witnesses have to be examined in support of the allegations and opportunity has to be given to the delinquent to cross – examine these witnesses and to lead evidence in his defense. In Punjab National Bank v. A.I.P.N.B.E. Federation, AIR 1960 SC 160, the Supreme Court held that in such enquiries evidence must be recorded in the presence of the charge-sheeted employee and he must be given an opportunity to rebut the said evidence. The same view was taken in ACC Ltd. v. Their Workmen, 1963 (7) FLR 269, and in Tata Oil Mills Co. Ltd. v. Their Workmen, 1963 (6) FLR 257.

          Even if the employee refuses to participate in the enquiry, the employer cannot straightaway dismiss him, but he must hold an ex-parte enquiry where evidence must be led vide Imperial Tobacco Co. Ltd. v. Its Workmen, 1961 (3) FLR 524 and Uma Shanker v. Registrar, 1992 (65) FLR 674.

          Hon’ble Supreme Court in Roop Singh Negi v. Punjab National Bank, 2009 (120) FLR 610, held as under:

          “Indisputably, a departmental proceeding is a quasi judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding  upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceedings. Not witness was examined to prove the said documents. The management witnesses merely tendered, the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.”

          Similar view has been taken in Sohan Lal v. U.P. Co-operative Federation Ltd., 2013 (139) FLR 723:

          “The principle of law emanates from the above judgments are that initial burden is on the department to prove the charges. In case of procedure adopted for inflicting major penalty, the department must prove the charges by oral evidence also.

          From the perusal of the enquiry report it is demonstrably proved that no oral evidence has been led by the department. When a major punishment is proposed to be passed, the department has to prove the charges against the delinquent/employee by examining the witnesses and by documentary evidence. In the present case, no witness was examined to prove the documents in the proceedings.

          It is trite law that the departmental proceedings are quasi-judicial proceedings. The Inquiry Officer functions as quasi-judicial officer. He is not merely a representative of the department. He has to act as an independent and impartial officer to find out the truth. The major punishment awarded to an employee visits serious consequences and as such the departmental proceedings ought to be in conformity with the principles of natural justice. Even if, an employee prefers not to participate in the enquiry, the department has to establish the charges against the employee by adducing oral as well as documentary evidence. In case the charges warrant major punishment, then the oral evidence by producing the witnesses is necessary.” Lalta Prasad v. State of U.P., 2019 (161) FLR 183.        

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Departmental Enquiry – Duty of Disciplinary Authority

In Chamoli District Co-operative Bank Ltd. v. Raghunath Singh Rana, (2016) 12 SCC 204, it was held as under:
“(i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.
(ii) If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.
(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.
(iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.”
The principal of law that emanates is that initial burden is on the department to prove the charges. In case where enquiry is initiated with a view to inflict major penalty, department must prove charges by adducing evidence by holding oral enquiry. State of U.P. v. Aditya Prasad Srivastava, (2017) 2 UPLBEC 901.

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Departmental and Criminal Proceedings – Are Different

The law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delionquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused “beyond reasonable doubt”, he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of “preponderance of probability”. Acquittal by the Trial Court, therefore, does not ipso facto, absolve the employee from the liability under the disciplinary jurisdiction. Om Prakash Singh v. State Bank of India, 2016 (150) FLR 939.

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Pre-condition for Leading – Secondary Evidence

The pre-condition for leading secondary evidence are that such original documents could not be produced by the party relied such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original document is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot be accepted. Rakesh Mohindra v. Anita Beri, 2016 (114) ALR 253.

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Criminal Trial – Principle of Issue Estoppel

The rule regarding issue estoppel relates to admissibility of evidence in subsequent proceedings which is designed to upset a finding of fact recorded on the previous occasion and mandates that the finding so rendered on earlier occasion must operate as issue estoppel in subsequent proceedings. It makes it impermissible to lead any such evidence at a subsequent stage or occasion. The law on the point was succinctly stated in Sangeetaben Mahendrabhai Patel v. State of Gujarat, (2012) 7 SCC 621:
“The court has time and again explained the principle of issue estoppel in a criminal trial observing that where an issue of fact has been tried by a competent court on an earlier occasion and a finding has been recorded in favour of the accused, such a finding would constitute an estoppels or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the acceptance/reception of evidence to disturb the finding of fact when the accused is tried subsequently for a different offence. This rule is distinct from the doctrine of double jeopardy as it does not prevent the trial of any offence but only precludes the evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding has been recorded at an earlier criminal trial. Thus, the rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court in a previous trial on a factual issue. Ashwani Kumar v. State of Punjab, (2015) 6 SCC 308.

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Dying Declaration – Importance of

The philosophy of law which signifies the importance of a dying declaration is based on the maxim nemo moriturus praesumitur mentire, which means, “no one at the time of death is presumed to lie and he will not meet his maker with a lie in his mouth.” Though a dying declaration is not recorded in the court in the presence of the accused nor is it put to strict proof of cross examination by the accused, still it is admitted in evidence against the general rule that hearsay evidence is not admissible in evidence. The dying declaration does not even require any corroboration as long as it inspires confidence in the mind of the court and that it is free from any form of tutoring. At the same time, dying declaration has to be judged and appreciated in the light of surrounding circumstances. The whole point in giving lot of credence and importance to the piece of dying declaration, deviating from the rule of evidence is that such declaration is made by the victim when he/she is on the verge of death.
In spite of all the importance attached and the sanctity given to the piece of dying declaration, the courts have to be very careful while analyisng the truthfulness, genuineness of the dying declaration and should come to a proper conclusion that the dying declaration is not a product of prompting or tutoring.
The Hon’ble Apex Court in Atbir v. Govt. (NCT of Delhi), (2010) 9 SCC 1, taking into consideration earlier judgments in Paniben v. State of Gujarat, (1992) 2 SCC 474 and another judgment of the Hon’ble Apex Court in Panneerselvam v. State of T.N., (2008) 17 SCC 190, has given certain guidelines while considering a dying declaration:
(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity, such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be rejected.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.” Umakant v. State of Chhatisgarh, (2014) 7 SCC 405.

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Scope of Section 145 of Negotiable Instruments Act

Section 145(1) of the Negotiable Instruments Act gives complete freedom to the complainant either to give his evidence by way of affidavit or by way of oral evidence. The court has to accept the same even if it is given by way of an affidavit. The second part of Section 145(1) provides that the complainant’s statement on affidavit may, subject to all just exceptions, be read in evidence in any enquiry, trial or other proceedings. Section 145 is a rule of procedure which lays down the manner in which the evidence of the complainant may be recorded and once the court issues summons and the presence of the accused is secured, an option be given to the accused whether, at that stage, he would be willing to pay the amount due along with reasonable interest and if the accused is not willing to pay, the court may fix up the case at an early date and ensure day-to-day trial. Indian Bank Association v. Union of India, (2014) 5 SCC 590.

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