WHAT IS A DOCUMENT :- “ ANY MATTER EXPRESSED OR DISCRIBED UPON - TopicsExpress

WHAT IS A DOCUMENT :- “ ANY MATTER EXPRESSED OR DISCRIBED UPON ANY SUBSTANCE BY MENAS OF LETTERS,FIGURES OR MARKS OR BY MORE THAN ONE OF THOSE MEANS,INTENDED TO BE USED OR WHICH MAY BE USED FOR THE PURPOSE OF RECORDING THAT MATTER” -A WRIITING IS A DOCUMENT -WORDS PRINTED,LITHOGRAPHED OR PHOTOGRAPHED ARE DOCUMENTS -A MAP OR PLAN IS A DOCUMENT -AN INSCRIPTION ON A METAL PLATE OR STONE IS A DOCUMENT -A CARICATURE IS A DOCUMENT. FIRST OF ALL LET US UNDERSTAND WHAT IS EVIDENCE EVIDENCE IS DEFINED IN SEC-3 OF INDIAN EVIDENCE ACT HOWEVER FOR THE PURPOSE OF QUASI JUDICIAL THE TERM IS EXPLAINED AS UNDER :- 1.ALL STATEMENTS WHICH THE INQUIRING AUTHORITY PERMIT OR REQUIRES TO BE MADE BEFORE IT BY WITNESSES,INRELATION TO MATTER OF FACT UNDER INQUIRY,THESE STATEMENTS ARE CALLED EVIDENCE. 2.ALL DOCUMENTS INCLUDING ELECTRONIC RECORD PRODUCED FOR THE INSPECTION OF INQUIRING AUTHORITY SUCH DOCUMENTS ARE CALLED DOCUMENTARY EVIDENCE. EVIDENCE IS CLASSIFIED IN TWO WAYS :- A]ACCORDING TO THE SOURCE FROM WHICH IT IS DERIVED I]DOCUMENTARY II] ORAL III]EXPERT OPINION IV]CIRCUMSTANTIAL B]THE RELEVENCE WHICH CAN BE PLACED ON THAT SOURCE I]PRIMARY EVIDENCE[ORIGINAL DOCUMENT,PERSONAL KNOWLEDGE II]SECONDARY EVIDENCE[CERTIFIED COPIES] HERE YOU SHOULD KNOW THE COMPETENCE/EXPERIENCE/AUTHORSHIP/SKILL/ASSUMPTIONS WHILE MAKING THE DOCUMENT BECAUSE IT WILL HELP YOU IN UNDERSTANDING THE DOCUMENT. DEFINITION OF FACT All evidence oral or documentary ( produced during enquiry) must be restricted to ’ facts in issue and relevant facts’. FACT means and includes 1.Anything state of thing or relation of things capable of being perceived by senses. 2.Any mental condition of which any person is conscious . Example: That there are certain objects arranged in a certain order at a certain place that a man hear or saw something , that a man said certain words , that a man hold a certain opinion , had a certain intention , acts in good faith or fraudulently , or uses a particular word in a particular sense , or is or was at a specified time , conscious of a particular sensation , has a certain reputation , are all facts. RELEVENCY RELEVENT ; ONE FACT IS SAID TO BE RELEVENT TO ANOTHER WHEN THE ONE IS CONNECTED WITH THE OTHER IN ANY OF THE WAYS A facts so connected , directly or indirectly with a fact in issue in an action or other proceeding that it tends to prove or disprove the facts in issue . Any two facts so related to each other that according to common course of events one either taken by itself or in connection with other facts proves or renders probable in the past , present or future existence or non-exitence of the other. FACTS IN ISSUE ; ANY FACT FROM WHICH, EITHER BY ITSELF OR IN CONNECTION WITH OTHER FACTS,THE EXISTENSE,NON EXISTENSE,NATURE OR EXTENT OF ANY OTHER RIGHT LIABILITY,OR DISABILITY,ASSERTED OR DENIED Facts out of which some legal right , liability or disability involved in the enquiry , necessarily arises and upon which accordingly decisions must be arrived at. A]FACTS WHICH THOUGH NOT IN ISSUE,ARE SO CONNECTED WITH A FACT IN ISSUE AS TO FORM PART OF THE SAME TRANSACTION,ARE RELEVENT,WHETHER THEY OCCURRED AT THE SAME TIME AND PLACE OR AT DIFFERENT TIMES AND PLACES B]ANY FACT IS RELEVENT WHICH SHOWS OR CONSTITUTES A MOTIVE OR PREPARATION FOR ANY FACT IN ISSUE OR RELEVENT FACT C]FACTS NECESSARY TO EXPLAIN OR INTRODUCE A FACT IN ISSUE OR RELEVENT FACT,OR WHICH SUPPORT OR REBUT AN INFERNCE SUGGESTED BY A FACT IN ISSUE OR RELEVENT FACT,OR WHICH ESTABLISH THE IDENTITY OF ANY THING OR ANY PERSON WHOSE IDENTITY IS RELEVENT,OR FIX THE TIME OR PLACE AT WHICH ANY FACT IN ISSUE OR RELEVENT FACT HAPPENED,OR WHICH SHOW THE RELATION OF PARTIES BY WHOM ANY SUCH FACT WAS TRANSACTED,ARE RELEVENT IN SO FAR AS THEY ARE NECESSARY FOR THAT PURPOSE D]FACTS NOT OTHERWISE RELEVENT ARE RELEVENT if they are inconsistent with any fact in issue or relevant fact if by themselves or in connection with other facts they make the existence or non existence of any fact in issue or relevant fact highly probable or improbable. E]FACTS SHOWING THE EXISTENSE OF ANY STATE OF MIND,SUCH AS INTENTION ,KNOWLEDGE,GOOD FAITH,NEGLIGIENCE,RASHNESS,ILL- WILL OR GOODWILL TOWARDS ANY PARTICULAR PERSON F]WHEN THERE IS A QUESTION WHETHER AN ACT WAS ACCIDENTAL OR INTENTIONAL ,OR DONE WITH A PARTICULAR KNOWLEDGE OR INTENTION MATERIAL CIRCUMSTANTIAL HEARSAY MATERIAL Eye witness is a material witness. On which article of charge is based is called material document. CIRCUMSTANTIAL Principal fact is established by direct evidence or circumstance or chain of circumstances. HEARSAY EVIDENCE Third party who has not seen, heard felt it but deposing on the basis of information received by him. In state of Haryana V Rattan Singh Air 1977-SC 1512 supreme court observed. “There is no allergy to hearsay evidence, provided it has reasonable nexus and creditability . But Deptt. Authorities and administrative tribunals should not glibly swallow what is not relevant under the Indian evidence act”. Proof of content of document * Primary Evidence = Original produced for inspection. * Secondary Evidence = Certified copies, compared with originals oral account of contents PROVED A FACT IS SAID TO BE PROVED WHEN AFTER CONSIDERING THE MATTER BEFORE IT THE IO EITHER BELIEVES IT TO EXIST OR CONSIDERS ITS EXISTENSE SO PROBABLE THAT A PRUDENT MIND OUGHT UNDER THE CIRCUMSTANCES OF THE PARTICULAR CASE TO ACT UPON THE SUPPOSITION THAT IT EXISTS DISPROVED A FACT IS SAID TO BE DISPROVED WHEN AFTER CONSIDERING THE MATTER BEFORE IT THE IO EITHER BELIEVES THAT IT DOES NOT EXIST OR CONSIDER ITS NON EXISTENSE SO PROBABLE THAT A PRUDENT MIND OUGHT UNDER THE CIRCUMSTANCES OF THE PARTICULAR CASE,TO ACT UPON THE SUPPOSITION THAT IT DOES NOT EXIST. NOT PROVED A FACT IS SAID TO BE NOT PROVED WHEN IT IS NIETHER PROVED NOR DISPROVED. The drawbacks/objections/inconsistencies given below shouild be recorded by the CO at the first instance.the suggestive list is given below :- 1.what cannot be demonstarted is not evidence. 2.what is demonstarted by a third party but not ratified by the author/signatory/writes is not considered against the CO 3.disguised handwritting should be objected 4.forgeries of signatures 5plaints/annonymous letter Documents are not always what they are represented to be. So first question should be about the authenticity of the document. The findings of the handwritting experts/graphologogists are generally intutitive and should be objected. Moisture on paper/insects/bacteria/fungi Absorption of oil and water Every time a document is exposed to light and handled,some deteroriation takes place Traced forgery Impressions disappear with the passage of time Rubbed/soaked/tea/coffee/mud/cowdung/washed/oressed/folded for artificial ageing. Document’s odour[tobbaco/cosmetics/fungi] Torn and repaired documents Erasure used Blot and smear Dimension and shape of letter/form etc. Tearing and perforation[paper rarely tears evenly] Forgery in date Tattered condition Staple holes are in pair and more than one pair confirms removal or addition of documents Extraneus markings Typing ribbon/impression/fraudlent addition Reinsertion of material in a typed documents Erased typescript Any signature which has been written so that it changes direction should be seen with suspicion. Doubling of lines in signature in forged document Doubling of lines in signature in original document Simultaneous signature on underlying sheets are obtained Bright green signature should be viwed with suspicion Removal of pages Overwritting Faded writing Dcanned/cloned copies It is easy to be wise after the event and this is the reason why many documents are forged to advance a cause beneficial to that person As such if any of the point has been observed during inspection it should be covered in the certificate. Language of Certificate of Inspection. Certified that I have compared the photo copies vide p.o.s list Ext no.---- from Sr. No. -------- with. So called originals which are objected to “ Defence witnesses In State of Bombay V Nurul Lalif Khan ( AIR 1966 SC 269) . If the accused officer desires to examine witnesses whose evidence appears to the IO to be thoroughly irrelevant the IO may refuse to examine such witnesses but in doing so he will have to record his special and sufficient reasons. Marking of Exhibits On regular hearing the PO will present the listed documents one by one to the IO who will mark them as EXT., if these are not challenged. Any document not accepted by the charged officer can be marked by the IO only when it is produced through a witnesses, who certifies its genuinness. However as per CVC Cir no 10 DSP 3 dated 19/6/87 photocopies of the listed documents are furnished to the charged officer alongwith the charge sheet by the disciplinary authority. METHOD OF RECORDING OF ENQUIRY PROCEEDINGS In D & A regulations 6.13 there is a mention of recording of proceedings . but no claboration or codification has ben elaborated WHAT IS DAILY ORDER SHEET IT IS THE REGISTER PREPARED BY IO TO RECORD PROCEEDINGS. HOWEVER THE CASE LAW GIVEN BELOW WILL CLARIFY THE ISSUE :- CHANDRA KISHORE VS J C DEB AIR 1965 TRI 20 “THE ENTRIES IN DAILY ORDER SHEET[PROCEEDING REGISTER] SHOULD BE RECORDED BY THE IO HIMSELF OR TO HIS DICTATION” R RAMESH VS GM SOUTHERN RAILWAY[1988] 7 ATC 552 “ SOMETIME IT IS NECESSARY TO RECORD THE QUESTION AND ANSWER IN VERBATIM.A NOTE SHOULD BE KEPT OF THE QUESTION DISALLOWED DURING THE CROSS EXAMINATION” IN CVC IT IS WRITTEN IN THE FORM OF NARRATIVE WHILE IN PNB IT IS IN THE FORM OF QUESTION ANSWER. WHAT IS CVC OR NARRATIVE FORMAT. PLACE DATE PARTY PRESENT :- 1.name2.designation 3.place of posting 4.signatures DETAILS OF CHARGESHEET:- 1.The preliminary hearing was held today.Sh. CO, confirmed having received the charge sheet no dated from the DISCIPILINARY AUTHORITY/DGM. He has submitted his reply dt to the DA denying the charge. 2.CO,Sh. pleaded not guilty and denied the charge. He has nominated Sh. as his defence assistant. Sh. Has also submitted his accepttance and wilingness and participated in the inquiry.The defence assistant has confirmed that he has not having two inquiries in his hand for the defence and eligible to act as a defence assistant. 3.The PO has informed that he will be going to karnal to finalise the list of documents and list of witnesses in support of article of charge,in consultation with DA. 4.He has been directed to finalise these list and also obtain the original listed documents before . 5.The listed documents should be made available by the PO to the CO on .The CO should complete the inspection of the listed documents on .He will submit list of additional documents on .while listing the additional defence documents on the charged officer should give details of the documents such as no and date,discription,their custodian, and explain the relevency of the additional documents to his defence. If the relevency of the additional defence documents is not indicated such documents would not be allowed. A decision regarding the admisibility of the additional documents will be communicated to the CO and PO after reciept of list of additional defence documents on . 6.In case any of th permitted additional document[s] is/are considered secret/privileged or are not available,a certficate in this effect should be obtained by the PO from the competent authority and sent to the IO with copy of such communcation to the CO. 7.The PO would collect the additional documents allowed by the IO and make available to the CO for inspection within a week after the reciept of the decision of the IO, regarding the additional documents allowed.The Co will complete the inspection of additional documents by .The photocopies of the listed documents/additional documents should be supplied to the CO. 8.In case the CO has any doubt regarding authenticty genuineness of the listed documents/additional documents,he should inform the IO accordingly within three days of inspection with a copy of such communication to the PO.otherwise, it would be deemed that the CO is convinced of the authenticity/genuineness of the documents. 9.The CO is also directed to name his defence witnesses if any under intimation to the PO while so doing he should give their complete addresses official designation if any explaining as to how those persons were connected with the case and how the CO feels,they are relevent and essential for his defence. 10.All these preliminaries should be completed before .the PO and the CO have been informed that the regular hearing in this case would be held in the .suitable dates for the hearing would be intimated to them after the reciept of the confirmation from both the parties regarding completion of the listed/additional documents and other formalities mentioned above. ROAC SD/IO SD/PO SD/CO SD/DR SD/MW- OR DW- REGULATION 6.11 The inquiring authority shall on receipt of the notice for the discovery or production of the documents forward the same or copies thereof to the authority in whose custody or possession the documents are kept with a requisition for the production of the documents on such date as may be specified. KRISHAN LAL GODARA Vs. STATE OF RAJASTHAN 1960 WLN 17: 1969 SLR 667 (RAJ HC ) The inspection can not be refused on the ground that the documents relate to confidential enquiry. On the receipt of the requisition under subregulation (11), the authority having the custody or possession of the requisitioned documents shall arrange to produce the same before the inquiring authority on the date place and time specified in the requisition. REGULATION 6.12 Provided that the authority having the custody or possession of the requisitioned documents may claim privilege if the production of such documents will by against the public interest or the interest of the bank. In that event it shall inform the inquiring authority accordingly. ADVERSE INFERENCE STATE OF WEST BENGAL Vs. CHIRANTAN SARKAR 1993 (2) SCT 321 (CAL) (DB) Non-production of records – State directed to produce records to substantiate the plea – Non – production of record and evidence in the custody and control of the state – Adverse inference can be drawn against the state. ARTICLE 226- PRATICE AND PROCEDURE Adverse inference / documents – state counsel directed to produce the records to substantiate the please- No – production of documents and evidence in the custody , and control of the party- Adverse inference can be drawn against the party not producing the same [ STATE OF WB Vs. CHIRANTAN SARKAR, 1993 (1) SLR 520 (CALCUTTA )] REGULATION 6.13 On the date fixed for enquiry the oral and documentary evidence by which the article of charge are proposed to be proved shall be produced by or on behalf of disciplinary authority. The witnesses produced by the PO shall be examined by the PO and may be cross-examined by or on behalf his witnesses on any points on which they have been cross examined but not on a new matter without the leave of the enquiring authority . The inquiring authority may also put such questions to the witnesses as it thinks fit. IN T.R. VERMA ‘S CASE ALL evidence are recorded in his presence , cross examined ( adduced oral and documentary evidence). ORAL ENQUIRY ( PERSONAL HEARING) WHETHER THE CO DESIRES TO BE HEARD IN PERSON H. NAGESHUAR RAO V APSRT AIR 1959 SC 308 “Personal hearing enables the authority to watch demeanour of the witness produced against him ( the servant ) and clear up his doubts during the course of argue ments and the party appearing to persuade the authority by reasoned arguments to accepts his point of view”. IT IS INTENDED TO AFFORD OPPORTUNITY TO CO ( UNION OF INDIA V TR VERMS AIR 1957 SC 882 / KHEM CHAND V UNION OF INDIA AIR 1958 SC 300 ) On the day fixed regular hearing 1) All the listed documents will be marked as exhibits. 2) Defence documents allowed and produced shall be marked exhibits. However , DA can produce defence documents ( additional ) at later stages also on cross-examination ( as and when needed ) - after the closure of prosecution case - before closure of case - affidavit can be accepted if IO is s atisfied that person signing the same is unable to attend it. CROSS EXAMINATION ( TO IMPEACH THE ACCURACY CREDIBILITY AND GENERAL VALUE ) - To detect and expose discrepancies - To elicit suppressed facts or hidden information - To question on all aspects of allegation i) Relating to relevant facts ii) To test veracity iii) To discover who is heand is his position in life iv) To shake his character v) To know truth about his previous statements and consistency thereof. In jugraj Singh V Delhi Admn ( AIR 1970 Delhi 400) the court held that the term cross-examination used in disciplinary proceedings would have the same meaning as in the Evidence Act unless any part of such meaning can be shown to be artificial and unwarranted. In manijt Chakraborty V Union of India 91986) 2 AIR 299 it was held that Indian Evidence Act (Sec 136 ) is applicable as far as cross examination is concerned. CROSS EXAMINATION - It requires the greatest ingenuity - A habit of logical thought - Clearness of perception in general - Infinite patience and self control - Power to read man’s mind intuitively - To be judge of their character by faces - To appreciate their motive - The ability to act with force and precision - A masterful knowledge of the subject matter itself extreme caution - The instinct to discover wear point in the witness under examination - To test memory and perception - To contradict ( to show hollowness ) by repetition if he is tutored - If witness is professional , impeach his creditability show him as an interested party or who has scant regard for truth ask the witness source of knowledge - if it is not his personal knowledge or show him as stock witnesses. Closely watch expressions, gesture movements of his hands and arms him manner of emphasiting his hesitation to inconvenient question. Examination of prosecution witness first: Radha kanta V State AIR 1962 orissa 125 High Court observed: A tribunal is wrong if it places the burden of establishing his innocence on the Govt. servant. Where the proceedings are different the co-accused appearing as a witness against the other he can request for postponement of his deposition till evidence in his own case is closed Govt. of India Deptt. Of personal OM no. 134/7/75 AVD DT. 11/6/76 ( State of Punjab V Bhagat Ram 1975 ( I ) SLR 2 SC ) Previous statement of witness during examination in chief If on showing the statement the witness accepts, it will be recorded.” I am shown my earlier statements dated and taken on record” Where the statement is partially accepted partially denied “I donot accept para ---------- of the same. It is signed by me today and the same is marked as EX------------ and taken on record.” Section 141 of Indian Evidence Act Leading Question = Any question which is suggestive, indicative or direct giving lead to the answer answer. IF WITNESS IS NOT PRODUCED HIS STATEMENT CANNOT BE USED In central Bank of India V P C Jain AIR 1969 SC 1983 “The principle that a fact sought to be proved must be supported by statement made in the presence of the person against whom the enquiry is held and that the statements on the back of the person charged are not be treated as substantive evidence, is one of the basic principals are not bound by the technical rules of the procedure contained in the Evidence Act- Eo can curtail the cross examination or limit it ( State of AP V N C Lingam 1988 - 11 – LLN- 565 SC) EO cannot subject the CO to extensive cross-exam ( Balu Singh V Union of India 1986 (i) SLJ (CAT) 149 New Delhi If the manner of questioning reflects bias enquiry will be vitiated ( Abdul wajeed V State Karnataka 1981 (i) SLJ 388 Karnatka high court ) EO cannot put leading of searching questions to CO. Sri Durgaswar Hazarika V Union of India and others 1988 (2) SLJ (CAT) 177 Guwahati. BURDEN OF PROOF NARAYAN Vs. GOPAL AIR 1960 SC 100 If the party on whom the burden lies not lead any evidence then the opposite party need not to give any evidence in rebuttal and the fact will not be deemed to be proved. MOHINDER SINGH Vs. STATE , AIR 1953 SC 415, BHAGOJI Vs. STATE , AIR 1954 HYD 196, JAIRAMDAS Vs. STATE , AIR 1956 BOM 426, 1956 Cri LJ 725, MOOLCHAND Vs. STATE , AIR 1955 BHOPAL 9 The prosecution must stand on its own legs and should not seek support from the weakness of the defence. TATA IRON & STEEL CO. LTD. Vs. RAJ KISHORE PRASAD 30 FIR 319 ( PATNA HC) When the Inquiry officer proceeds on the assumption that the onus is on the workmen to prove their innocence then the wrong approach would be a serious mistake. SUKHANDRA CHANDRA Vs. UNION TERRITORY OF TRIPURA AIR 1962 In a disciplinary proceeding against a government servant, it is for the government to substantiate the charge and it is not for the civil servant to substantiate his innocence. RADHAKANTA PATNAIK Vs. STATE , AIR 1962, ORISSA 125 If the Inquiry officer placed the burden to prove his innocence on the public servant , then it is opposed to the rules of natural justice. MULCHANDANI ELECTRICAL AND RADIO INDUSTRIES LTD. Vs. THEIR WORKMAN 1975 LAB ICI 508 What is material is not the place where the misconduct took place but where the consequences of the misconduct were felt. If the enquiry officer puts some questions to the witnesses by way of clarification , it could not be said that he had done something that was not fair or proper. G.C.SHARMA Vs. BAWEJA 1972 II LLJ 475 After the examination –in-chief of each management witness, the enquiry officer must ask the accused employee whether he wishes to cross-examine the witness. HINDUSTAN LEVER VS PRESIDING OFFICER, LABOUR COURT 1970 II LLJ 20 The enquiry officer cannot cross- examination the defence witnesses or ask leading questions to them. HIRAMONY VS STATE OF ASSAM AIR 1954 ASSAM 224 Where there is a fragrant violation of rules of natural justice or where the authority which passed the impugned order, lacked jurisdiction to pass it or where the authority acted contrary to all accepted principle of justice or where an appeal would be illusory etc. a High Court may, in its discreton , entertain an officer’s writ petition even before he has exhausted the remedy of an appeal and or a review. INDIAN BANK Vs. EVALAPPAN 1979 II LLJ 31 The enquiry officer is ecercising a quasi-judicial function. His orders must be”speaking orders” i.e. each order must show on the face of it the reasons for the conclusion. The Appellate Authority exercises a quasi-judicial function . Its oder must be a “speaking order “ , i.e. the order must show on the fact of it the reasons therefore. KHARDAH AND CO. LTD. Vs. ITS WORKMAN 1963 II LLJ 452 In domestic enquiries it is essential that all the witnesses on whoe testimony the management relies in support of the charges against the accused employee should be examined in the employee’s presence. Evidence should not be allowed to be led after the case is called unless both of the parties agree. EO report should be clear and brief indicating his reasons to reach that conclusion. Law laid down by Supreme Court on 15th Dec.1971 is also applicable to disposal of the employee’s application for permission or approval. J.P.SAXENA Vs. THE STATE OF HADHYA BHARAT 1963 II LLJ 325 Failure to examine witness in support of the charges will vitiate the enquiry. MARTIN Vs. UNION OF INDIA 1967 II LLJ 417 An enquiry which consisted only of the recording of the statement of the accused employee without presentation of the management’s case and examination of the management’s is not valid. DATTARAM SITRAM PATILVS. RAPTOKOS BRETT AND CO.LTD. 1986 II LLJ 694 Where the accused employee is not allowed to ask question in cross-examination to the management’s witnesses, there is contrary to natural justice. The enquiry officer cannot cross-examination the defence witnesses or ask leading questions to them. LEADING QUESTIONS M.S.DASAN Vs. UNION OF INDIA 1992 (3) SLJ 9 CAT) 276 (ERNAKULAM) P.C.put leading questions to the witnesses examined in support of charges- Inquiry officer omitted to question the applicant on the evidence appearing against him in the testimony of witnesses examined - Inquiry officer also omitted to require th applicant to adduce evidence on his side and to submit defence – held enquiry proceedings vitiated. SREERAMULU Vs. STATE OF A.P. AIR 1970 AP 114 Thought it may not be permissible to probe into mental prowess of the Inquiry officer or the person charged with making an administrative decision, but where bias or prejudice is obvious, the principle that “justice should not only be done but seem to be done” has its full impact upon the validity of the proceedings. PADMANABHAN Vs. KERALA STATE HANDLOOM DEVELOPMENT CORP.LTD. 1993(1) LLN 63 (KERALA ) (DB) It is not to a party to object to the right of opposite party to rely on a document with is marked without any objection. BIAS BY INQUIRY OFFICER MANEKLAL Vs. PREMCHAND (DR.) , AIR 1957 SC 427 A judge should act impartially , objectively and without bias because justice must not only be done also appear to be done. RAMARAO LAXMIKANT SHRIKHODAR Vs. ACCOUNTANT GENERAL MAHARASHTRA (1963) LLJ 428 (BOMBAY HC ) , RANGER Vs. GREAT WESTERN RAILWAY CO. (1854) 5 H CASAS 72 , 89 A judge ought to be and is supposed to be indifferent between the perties . He has or is supposed to have no bias inducing him to lean to the side rather than to the other. REGULATION 6.13 : DOCUMENTS AND WITNESSES Oral vis-à-vis documentary evidence- documentary evidence is a dead evidence and the other is live evidence – The dead evidence has to be proved by a witness – it must be brought through the medium of a person to prove it (ibid) – Central Civil services [ Classification , Control and Appeal , 1965 , Rule 14 (4)]. All documents will not only have to be proved by a competent witness but also have to be explained as to how they prove the allegation against the delinquent . In doing so, the delinquent will get the opportunity to cross-examine the witness (ibid). P.S. GOPALA Vs. UNION OF INDIA 1993 91) SLJ (CAT) 171 (ERNAKULAM) Departmental not producing a witness – It it fair to expect the defence to produce that witness – It is wrong to expect the delinquent to cite as his witness one who ought to have been examined as a departmental witness. For , he would then have been deprived of his precious right to cross- examination. Right to cross-examination – Certain documents produced – Defence objected to their without any witness to prove the same and enable him to cross-examination – Still no witness brought – Held , it was denial of right of cross-examination . D & A REGULATION 6.14 Before the close of the case, in support of he charge the inquiring authority may, in discretion allow the presenting officer to produce evidence not included in the charge sheet or may itself call for new evidence or recall or re-examine any witness. In such case the officer employee shall be given opportunity to inspect the documentary evidence before it is taken on record or to cross- examination a witness who had been so summoned. The inquiring authority may also allow the officer employee to produce new evidence if it is of opinion that the production of such evidence is necessary in the interest of the justice. Govt, of India Ministry to home affair vide their office memorandum no.7/1/70 ESTS (A) dt. 24/9/70 have clarified that if re- examination by the PO is allowed on any new matter not already covered by earlier examination / cross examination , A further cross examenation on such new matters covered in the re – examination may also be allowed to meet the end of justice. If new evidence is allowed by IO request for suitable adournment to rebut it may be made. NEW EVIDENCE ADMISSIBLE Before closure of the case by PO, EO may allow new evidence and inspection will be allowed to defence. But the new evidence will not be allowed to fill in the gaps. GAP If something is lft out while producing evidence which is sought to be bridged by bringing new evidence or recall of witness. It is not permitted. MINISTRY OF LAW “ Inherent lacuna or defence in evidence means evidence which is required to enable the authority to pronounce judgement or for any other substantial cause. Secondly , that either party to the inquiry inspite of their best efforts, could not produce evidence at the time of enquiry or that evidence was discovered after the close of the enquiry . Under the above circumstances only new evidence can be introduced as far as the word ‘gap’ is concerned , it means that evidence was available at the time of enquiry , but however due to reasons at the time of enquiry”. P. PARMESWARAN NAIR Vs. SENIOR SUPDT. OF POST OFFICES AIR 1990 (1) CAT 372 ERNAKULAM. “IO permitted a witness in place of other witness of PO as a gap. It was held that allowing of new witness who was not in the list was in violation of the principle of natural justice”. STATE OF ASSAM Vs. M.K. DAS AIR 1970 SC 1255 When Enquiry officer collects information from third parties and acts upon it without disclosing it to the accused employees, that proceedings would be vitiated being contrary to the principle of natural justice. NIPENDRA NATH BAGCHI Vs. GOVT. OF WEST BENGAL 1961 II LLJ 312 Departmental tribunals do not have the power to summon witnesses or compel production of documents. TATA OIL MILLS CO. LTD WORKMEN 1963 II LLJ 78 An officer holding a domestic enquiry can take no valid or effective steps to compel the attendance of any witness and just as the management produces its own witness /es before the enquiry for giving evidence , it is the duty of the accused employee to produce his own witness / es. REGULATION 6.15 When the case in support of the charges is closed , the officer employee may be required to state his defence orally or in writing , as he may prefer. If the defence is made orally it shall be recorded and the officer employee shall be required to sign the record. In either a copy of the statements of defence shall be given to the presenting officer, if any, appointed. REGULATION 6.16 The v on behalf of the officer employee shall then be produced. The officer employee may examine himself in his own behalf, if he so prefers. The witnesses produced by the officer employee shall then be examined by the officer employee and may be cross- examination shall be entitled to re-examination any of his witnesses on any points on which they have been cross-examined, but not on any new matter without the leave of Inquiring Authority. NON-OBSERVANCE OF PROCEDURE PROVIDED UNDER THE RULES – ART. 311 BHOLA NATH ROY Vs. STATE OF WEST BENGAL 1993 (2) RSJ 156 (CAL) It )non observance of procedure ) denies the reasonable opportunity of defence as enshrined under article 311 of the constitution – Absence on account of being prevented by some interested persons, authorities did not offer necessary protection or safety and security despite repeated requests – Held court can not overlook such lawlessness – Termination set aside. B.H.DAVE Vs. STATE OF GUJJARAT 1970 I LLJ 417 The enquiry officer may permit a perty calling a witness to put any questions to him which may be put in cross-examination ( i.e. to treat the witness as hostile) when there is anything on record or in the testimony of the witness or the behaviour or demeanour of the witness which satisfies him that the witness is not desirous of telling the truth as he knows and sees it. The accused employee cannot be held guilty on the basis of the evidence of an accomplice unless such evidence is corroborated in material particulars. KARAM CHAND PREM CHAND Vs. SHANTARAM PANDURANG MAH. GAZ. DT. 23/10/1959 P.5023 (IT) If the worker takes up the defence that at the time of incident he was at his home then he must produce the members of his family or given evidence in support of his defence otherwise the defence cannot be believed. PRINCIPLES OF NATURAL JUSTICE AND REASONABLE OPPORTUNITY MADHUKAR KAUSHINATH KARNIK Vs. NAGPUR DIVISIONAL CO-OP . INSTITUTE LTD. 1961 ICR 233 IC, SAXBY FARMER (INDIA) PVT. LTD. Vs. THIRRD INDUSTRIAL TRIBUNAL 1962 (4) FLR 307 (CAL HC ) MUKHTAR SINGH Vs. STATE AIR 1957 ALL 297 It is now well established that mere opportunity to explain the conduct is not sufficient and the applicant should have the opportunity to produce his defence. VASUDEVAN NAIR Vs. GOVT. OF KERALA (1961) 2 LLJ 50 (KER HC ) PATEL GANDALAL SOMNATH Vs. STATE OF GUJARAT , AIR 1963 GUJ 50, GABRIAL Vs. STATE OF MADRAD (1959) 2 MLJ 15 (MAD HC ) He ( person charged) should have fair opportunity to state his case and to meet the accusations made against him. MacLEAN Vs. WORKERS UNION (1929) CH 602, STATE OF MYSORE Vs. SHIVABESAPPA SHIVAPPA (1964) 1 LLJ 24 AIR 1963 SC 375 He should have full opportunity to correct or contradict a relevant statement prejudicial against him. KANTA PANDEY Vs. STATE OF BIHAR , AIR 1970 PAT 23 (1970) 1 LLJ 314 In one case the anti-corruption department gave a report to the superintendent in which it was held that the Asstt. Inspector demanded bride. The Superintendent wrote the words file then the acceptance of the report could amounted to condonation or satisfaction that no grounds against the Inspector were made out. REGULATION 6.17 The Inquiring Authority may after the officer employee closes his evidence and shall if the officer employee has not got himself examined him in the evidence fo the purpose of enabling the officer employee to explain any circumstances appearing in the evidence against him. REGULATION 6.18 The Inquiring Authority may after the completion of the production of evidence hear the presenting officer, if any appointed and the officer employee or permit them to file written briefs of their respective cases within 15 days of the date of completion of the production of evidence if they so desire. BHARAT IRON WORKS Vs. BHAGUBHAI 1976 IC 4 Ordinarily , a person is victimized if he is made a victim or a scapegoat and is subjected to prosecution or punishment for no real fault or guilt of his own , in the manner as it were of a sacrificial victim. The burden of proving victimization is on the workman. R. KARUPPAMAN Vs. TNWS&D BOARD 1992 LLR 761 (MADRAS HC ) Allegation of purchase of 11 pumpsets in excess of requirement –Allegation siught to be proved on the basis of documentary evidence alone- No independent oral evidence produced to prove the charges – Held the order of punishment to be set aside. BANARAS ELECTRIC LIGHT & POWER CO. LTD. Vs. LABOUR COURT 1972 II LLJ 328 Person concerned must give his evidence in a logical and credible manner and must withstand the scrutiny of cross-examination of the opposite party. REGULATION 6.19 If the officer employee does not submit the written statement of defence referred to in sub-regulation (3) on or before the date specified for the purpose or dose not appear in person or through the assisting officer or otherwise fails or refuse to comply with any of the provisions of these regulations the Inquiring Authority may hold the Inquiry ex-parte. REGULATION 6.20 Whenever any inquiring authority after having heard and recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein and is succeeded by another inquiring authority which has and which exercises such jurisdiction the Inquiring Authority so succeeding may act on the evidence so recorded by its predecessor , or partly recorded by its predecessor and partly recorded by itself . Provided that if the succeeding inquiring authority is of the opinion that furher examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, it may recall examine cross- examination and re-examine any such witnesses as herein before provided. REGULATION 6.21 (I) On the conclusion of the inquiry the inquiring authority shall prepare a report which shall contain the following: (a) a gist of the articles of charge and the statements of the imputations of misconduct or misbheviour, (b) a gist of the defence of the evidence in respect of each article of charge, (c) an assessment of the evidence in respect of each article of charge, (d) the findings o each article of charge and the reasons therefore. Explanation If in the opinion of the Inquiring Authority the proceedings of the inquiry establish any article of charge different from the original article of charge, it may record its findings on such article of charge. Provided that the findings on such article of charge shall not be recorded unless the officer employee has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.