Assignment (Service Law)

PRINCIPLES OF ADDUCING EVIDENCE IN DISCIPLINARY INQUIRY

AGAINST A GOVERNMENT SERVANT

Submitted to Submitted by

Dr. Alok Kumar & Dr. Santosh Sharma Aniket Singh

(Associate Professors of Law) (1020181957)

HIMACHAL PRADESH NATIONAL LAW UNIVERSITY

GHANDAL, SHIMLA, P.O. SHAKRAH, SUB-TEHSIL DHAMI
DISTRICT SHIMLA, HIMACHAL PRADESH-171014
Ph. 0177-2779802, 0177-2779803, Fax: 0177-2779802
Website: http://hpnlu.ac.in
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 ACKNOWLEDGEMENT

I would like to express my sincere gratitude to Dr. Alok Kumar & Dr. Santosh Sharma ,
faculty for the discipline “Service Law” for giving me this opportunity to come up with this
assignment paper and ably guiding me through the material providing during the course of his
lectures.

I would also like to appreciate all the relevant sources I have come across to develop an overall
understanding of the topic in hand and give them a shape in the form of this paper.

Date: May 25, 2023 Name: ANIKET SINGH

Enrolment number: 10201819-57

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 DECLARATION

I, Aniket Singh, the author of this paper titled, “PRINCIPLES OF ADDUCING EVIDENCE
IN DISCIPLINARY INQUIRY AGAINST A GOVERNMENT SERVANT” do hereby
declare that the work included in the assignment is the outcome of the research carried out by the
author himself.

Name: Aniket Singh

Course: B.A.LL.B.(Hons.)

Semester: 10th

Enrollment No.: 1020181957

Batch: 2018-19

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 TABLE OF CONTENTS

I.
INTRODUCTION 5

II.
CASES UNDER DEPARTMENTAL INQUIRY 5

III.
DIFFERENCE BETWEEN JUDICIAL &
6
DEPARTMENTAL PROCEEDINGS

IV.
WHAT IS EVIDENCE?
8

FACTS IN ISSUE & RELEVANT FACTS

V.
9

VI.
TYPES OF EVIDENCES IN DEPARTMENTAL
10
INQUIRY

VII.
WHO CARRIES BURDEN OF PROOF?
11

STANDARDS OF PROOF 12
VIII.

PREPONDERANCE OF PROBABILITIES 14
IX.

EVALUATION OF EVIDENCE- DEPARTMENTAL 14

X.
PROCEEDINGS

4
 CONCLUSION & REFERENCES 19
XI.
PRINCIPLES OF ADDUCING EVIDENCE IN DISCIPLINARY INQUIRY AGAINST A
GOVERNMENT SERVANT

I. INTRODUCTION

Departmental action is a serious proceeding that may have adverse effects on the livelihood and
reputation of an employee. However, the proceeding gives employee a chance to meet the charge
and prove his innocence. It is intended to give adequate opportunity to the charged employee to
put up his defense and also to help the disciplinary authority to assess the guilt of the employee
to decide what action, if any, should be taken against him. During the inquiry, evidences are put
forward by both sides and the inquiry officer has to evaluate the evidences fairly in keeping with
the principles of natural justice such as “Audi Alteram Partem” (Hear both sides – No person
should be condemned unheard), “Nemo Judex in causa, sua potest” (No one can be a judge in
his own cause), and “Justice is not only to be done but it should also seem to have been done”.
As such, it is important for every employee to have a fair idea of certain terms and issues to
understand the process and principles of evaluation of evidences during departmental
proceedings. Some such issues include “Evidence”, “Facts in issue”, “Burden of Proof”, “Types
of Evidence”, “Standard of Proof” etc.

II. CASES UNDER DEPARTMENTAL INQUIRY

The constitution of India, under article 311(2) 1 guarantees that dismissal, removal or reduction in
rank of persons employed in civil capacities under the union or a state shall be affected only after
conducting an inquiry as provided therein except under certain circumstances enumerated in the
article. As per chapter 3 of the Vigilance Manual published by the Central Vigilance
Commission; the general rule is that investigations of the types given below should be entrusted
to the Central Bureau of Investigation or the anti-corruption branch in the Union Territories:

1
The Constitution of India, 1950

5
 (i) Allegations involving offences punishable under law which the Delhi Special Police
Establishment are authorized to investigate, such as offences involving bribery,
corruption, criminal breach of trust, forgery, cheating, falsification of records, etc.;
(ii) Possession of assets disproportionate to known sources of income;
(iii) Cases in which allegations are such that their truth cannot be ascertained without
making inquiries from non-official persons or those involving examination of non-
Government records, books of accounts etc.; and
(iv) Other cases of a complicated nature requiring expert police investigation.

Those cases should be consulted with the CBI where the allegations consist of offence as well as
departmental irregularity or negligence to decide as to which of the allegations should be dealt
with departmentally and which should be investigated by CBI. The whole case should be
entrusted to the CBI if there is any difficulty in separating the allegations for separate
investigation in the suggested manner. The manual further mandates that those case should be
handed over to the local police authorities where allegations prime facie indicate commission of
such criminal offence which the Delhi Special Police Establishment are not authorized to
investigate. Para. 1.5 of the chapter prescribes departmental investigation – if the alleged facts
are capable of verification or inquiry within the department -- for cases involving allegations of
departmental irregularity or negligence or of any misconduct other than an offence. Para.1.3
states that The PSE should not take up inquiries where minor procedural flaws are involved.
They should also take a note of an individual officer’s positive achievement so that a single
procedural error does not cancel out a life-time good work. However, one should note that
whether a procedural flaw is actually “minor” is decided also on the basis of its overall impact.

III. DIFFERENCE BETWEEN JUDICIAL & DEPARTMENTAL PROCEEDINGS

Departmental proceeding is a quasi judicial inquiry. As per Para. 3.18 of Chapter 3 of the CVC
Vigilance Manual, ingredients of misconduct/ delinquency in criminal prosecutions and
departmental proceedings as well as the quantum of proof required in both cases are not
identical. In criminal cases, the proof required for conviction has to be beyond reasonable doubt,
whereas in departmental proceedings proof based on preponderance of probability is sufficient
for holding the charges to have been proved.

6
Some significant differences between the two are enumerated below.

 The degree of proof necessary to record an order of conviction is different from that to
record the commission of delinquency. Departmental proceedings being quasi judicial in
nature, the rules of evidence as laid down in the Evidence Act and the Criminal
Procedure Code are not applicable to the extent indicated therein. The spirit of these
enactments should, however, be followed in departmental enquiries. Reasonable
opportunity must be afforded to both the sides to present their cases including full
opportunity for cross-examining witnesses.
 The standard of proof required in a Departmental action is lighter than court trial. Degree
of proof required in a departmental inquiry is by preponderance of probability while
judicial inquiry requires proof beyond reasonable doubt. The term “reasonable doubt” is
as difficult to define as it is easy to understand. It is the doubt which makes you hesitate
as to the correctness of the conclusions you reach. In departmental enquiry,
preponderance of probabilities indicates that if there are reasonable grounds leading to an
inference that misconduct was committed, it would be sufficient for initiation of
disciplinary proceedings against delinquent official, although evidence may not be
entirely free from doubt.
 Onus of proof in judicial inquiry lies on the prosecution. In departmental inquiry the
prosecution is bound to prove the allegations made against employee. The burden of
proving facts relating to his version of things lie on employee.
 Punishment in judicial inquiry is codified under the law but no such codification of
misconduct and penalties exists in case of departmental proceedings.
 In disciplinary proceeding the technicalities of criminal law are not invoked and strict
mode of proof prescribed by the evidence act not applied. But even in disciplinary
proceedings, the charges framed against the public servant must be held to be proved
before any punishment can be imposed.
 Hearsay evidence, if it has logically probative value, is admissible in departmental
inquiry. Mere suspicion, however reasonable, is not allowed to take place of proof
sufficient to hold an employee guilty. Charges cannot be sustained on mere conjectures in

7
 the absence of evidence. The conclusions of an enquiry must rest on evidence and not on
matters outside the record.
 The Enquiry has to rely on the facts of the case during the conduct of proceedings.
Proceeding should be “lawful”, but not “legalistic”. The legal principles concerned are
only the principles of natural justice. The laws and procedures are also relaxed in
departmental enquiries.
IV. WHAT IS EVIDENCE?

The word ‘Evidence’ has been derived from the Latin word ‘evidere’ which implies to show
distinctly, to make clear to view or sight, to discover clearly, to make plainly certain, to certain,
to ascertain, to prove. Dictionary meaning of the term is “the available body of facts or
information indicating whether a belief or proposition is true or valid’’.

The term evidence refers to any matter of fact that a party to a lawsuit offers to prove or disprove
an issue in the case. As per the Indian Evidence Act, “Evidence” means and includes all
statements which the court permits or requires to be made before it by witnesses, in relation to
matters of fact under inquiry, called oral evidence; and all documents including electronic
records produced for the inspection of the court, called documentary evidence.

The Supreme Court in Sivrajbhan v. Harchandgir2 has held “The word evidence in connection
with law, all valid meanings, includes all except agreement which prove or disprove any fact or
matter whose truthfulness is presented for Judicial Investigation. At this stage it will be proper
to keep in mind that where a party and the other party don’t get the opportunity to cross-
examine his statements to ascertain the truth then in such a condition this party’s statement is
not Evidence.”

The Indian Evidence Act also defines three terms ‘Proved”, “Disproved” and “Not proved”. A
fact is said to be “proved” when, after considering the matters before it, the court either believes
it to exist, or considers its existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it exists. A fact is said to be
disproved when, after considering the matters before it, the court either believes that it does not
exist, or considers its non-existence so probable that a prudent man ought, under the

2
(1920) 38 MLJ 532

8
circumstances of the particular case, to act upon the supposition that it does not exist. A fact is
said not to be proved when it is neither proved nor disproved.

A system of rules and standards is used to determine which facts may be admitted, and to what
extent a judge may consider those facts as proof of a particular issue in a lawsuit.

V. FACTS IN ISSUE & RELEVANT FACTS

The Indian Evidence Act defines "Fact" to mean and include anything, state of things, or relation
of things, capable of being perceived by the senses; and any mental condition of which any
person is conscious. For example, all the following are facts:

 There are certain objects arranged in a certain order in a certain place.

 A man heard or saw something.
 A man said certain words.
 A man holds a certain opinion, has 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
 A man has a certain reputation

However, all facts may neither be in issue in a case nor be relevant for the case. Evidence Act
says that The expression "facts in issue" means and includes any fact from which, either by itself
or in connection with other facts, the existence, non-existence, nature or extent of any right,
liability, or disability asserted or denied in any suit or proceeding, necessarily follows.
Whenever, under the provisions of the law for the time being in force relating to Civil Procedure,
any court records an issue of fact, the fact, to be asserted or denied in the answer to such issue is
a fact in issue. The act also prescribes that one fact is said to be relevant to another when the one
is connected with the other in any of the ways referred to in the provisions of this act relating to
the relevancy of facts. A document – as per the Act – means any matter expressed or described

9
upon any substance by means 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.

VI. TYPES OF EVIDENCES IN DEPARTMENTAL INQUIRY

Generally two types of evidence are led in departmental evidence viz.

(i) documentary evidence and

(ii) oral evidence. In contrast, in criminal trials certain objects (such as weapons or
clothes worn by the victim, etc.) may also be produced as evidence and these are
known as Exhibits

Circumstantial Evidence or Indirect Evidence: Circumstantial Evidence attempts to prove

the facts in issue by providing other facts. It relates to a series of other facts than the fact in
issue. It leads to a satisfactory conclusion by dint of general experience of causality
associated with the fact in issue.

It is relevant to see what the Supreme Court Observed in Hanumant v. State of Madhya
Pradesh3: “In dealing with circumstantial evidence there is always the danger that
suspicion may take the place of legal proof. It is well to remember that in cases where the
evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt
is to be drawn should, in the first instance, be fully established and all the facts so
established should be consistent only with the hypothesis of the guilt of the accused. In other
words there can be a chain of evidence so far complete as not to leave any reasonable
ground for a conclusion consistent with the innocence of the accused and it must be such as
to show that within all human probability the act must have been done by the accused.”

In Ashok Kumar v. State of Madhya Pradesh4, the Supreme Court held that:

1. The circumstances from which an inference of guilt is sought to be drawn must be

cogently and firmly established.
2. Those circumstances should be of a definite tendency unerringly pointing towards
the guilt of accused.

3
AIR 1952 SC 343, 1953 CriLJ 129, 1952 1 SCR 1091
4
AIR 1989 SC 1890, 1989 CriLJ 2124, 1989 (2) Crimes 423 SC

10
 3. The circumstances, taken cumulatively, should from a chain so complete that there is
no escape from the conclusion that within all human probability the crime was
committed by the accused and none else.
4. The circumstantial evidence in order to sustain conviction must be complete and
incapable of explanation on any other hypothesis than that of the guilt of the accused
and such evidence should not only be consistent with the guilt of the accused but
should be inconsistent with his innocence.

VII. WHO CARRIES BURDEN OF PROOF?

The onus probandi or burden of proof is the obligation that lies on a party in a trial to produce
the evidence to prove allegations. It refers to the obligation of a party to prove its allegations at
trial. In a civil case the plaintiff sets forth its allegations in a complaint. The defendant is then
required to file a response denying some or all of the allegations and setting forth affirmative
facts in defence. Each party has the burden of proof of their allegations. In general, onus
probandi lies on the party who will lose if no evidence is produced in support of any side.

The burden of proof is often associated with the Latin maxim semper necessitas probandi
incumbit ei qui agit, which means "the necessity of proof always lies with the person who lays
charges”. The Latin legal maxim Actori incumbit onus probandi means the burden of proof is
on the plaintiff. He who does not carry the burden of proof gets the benefit of assumption,
meaning he needs no evidence to support his claim.

It is not to be confused with evidential burden, which is an obligation to adduce sufficient

evidence to properly raise an issue at court and that shifts between parties over the course of the
hearing.

VIII. STANDARDS OF PROOF

In law, evidence is useful to prove or disprove facts. Courts take the evidence and then evaluate
on the bases that by looking to the evidence whether a particular fact is proved or not. Evaluation
of evidence may be understood by four propositions:

11
 1. Evidence is given of facts (facts in issue or relevant facts)
2. Evidence is given by way of "oral evidence" or "documentary evidence"
3. The burden to prove the fact lies generally on plaintiff
4. After evaluation of evidence the facts are either "proved" (prove, disprove, not prove) or
"presumed" (may presume, shall presume, conclusive proof)

So the court, by looking into the evidences produced (either Oral or Documentary) before it, may
determine whether the facts are proved or presumed to be proved. The standard of proof can be
defined as the quantum of evidence that must be presented before a court before a fact can be
said to exist or not exist.

In common law, two separate standards of proof are recognized as “proof beyond reasonable
doubt” and “proof based on the balance of probabilities”.

The standard of proof courts follow in a criminal case is that of “beyond reasonable doubt”
whereas the standard of proof lowers to the “balance of probabilities” in civil proceedings. As
the standard by which proof can be measured, Indian Evidence Act accepts the condition of
general prudence. It is however to be noted that even then, courts also make allowance to
probable or improbable circumstances and conditions so that in cases which do not require the
criminal trial standard of reasonable doubt to be applied, the standard of the probability or
improbability of an event can be considered as appropriate.

The concept of reasonable doubt is considered to be the appropriate standard of proof for
criminal cases. Although not defined in the Act, it has been interpreted through various judicial
decisions. In Commonwealth v. Webster5, it was observed that reasonable doubt is not meant to
be a mere possible doubt because all that is connected to the affairs of humans can be said to
contain a possible element of doubt. Reasonable doubt is the state of mind of the jury wherein
they are not in a position to confirm the veracity of the guilt of the accused even after careful
perusal of all the adduced evidence. Since the law presumes that the accused is innocent until he
is proven guilty, it is essential that before he is condemned, such a reasonable doubt does not
exist. In the event that a doubt is created in the mind of the judge, the accused is permitted the
benefit of the aforementioned presumption. Beyond reasonable doubt, however, does not mean
5
59 Mass. 295 (1850)

12
that those who have assessed the evidence at hand should be absolutely certain of the guilt of the
accused. It must merely rule out all the reasonable possibilities, except the one it is trying to
prove.

Proof beyond a reasonable doubt, thus, is such a convincing proof that one would be willing to
rely upon it without hesitation. However, it does not mean an absolute certainty. The standard
that must be met by the prosecution's evidence in a criminal prosecution is that no other logical
explanation can be derived from the facts except that the defendant committed the crime, thereby
overcoming the presumption that a person is innocent unless and until proven guilty.

The Supreme Court has laid down that the conscience of the court cannot be bound by any rule
but the fact that such a conscience is rising is proof of the fact that prudent judgment is at play.
This has been likened to explain the standard of reasonable doubt. The doubt which is created in
the mind of a reasonable man is to be taken into account while coming to a conclusion provided
that for this doubt to be important enough, it must be proportional in nature to the offence alleged
in the case. A mere guess or "hunch" is not enough to constitute reasonable suspicion.

The standard of “beyond reasonable doubt” is used in criminal trials. The standard required for
civil cases is the balance of probabilities. The standard continues to be the balance of
probabilities even in cases which are primarily civil in nature but where a criminal charge may
be made out against the party. This is concluded from the definitions of the terms ‘proved’ and
‘not proved’, in the Act (a fact is said to be “proved” also when, the court considers its existence
so probable that a prudent man ought, under the circumstances of the particular case, to act upon
the supposition that it exists). This does not mean the evidence considered be wholly exempt
from doubt. It has been held by the courts that for civil cases, the parties are required to make
their best case before the courts based on which the decision is granted in favour of either of the
parties.

Beyond the shadow of a doubt is the strictest standard of proof. It requires that there be no doubt
as to the issue. Deriving from the nature of knowledge itself, this is an impossible standard.
Evidence in a court cannot reach this level. This phrase actually has gained currency in popular
culture associated with the law.

13
To understand the implications of the three standards, we can take an example. It has high
preponderance of probability that a freshly joined officer “A” will outlive his grandfather “B”.
However, to say the same or otherwise ‘without a shadow of doubt’, one has to wait till either of
A & B dies; and to prove this possibility ‘beyond reasonable doubt’ in any particular case of A
and B, an in-depth investigation into life status and living conditions of both A & B along with
inquiry from expert witnesses shall be required.

IX. PREPONDERANCE OF PROBABILITIES

As already mentioned, a lower standard of balance (or preponderance) of probabilities is applied

in civil litigation. Even though this standard of proof is lower, the rationale behind the use of
such a standard is that in some cases the question of the probability or the improbability of a
happening is an imperative consideration for deciding whether that event has actually taken place
or not. Lower standard of proof does not tell anything about attachment of lower significance to
civil cases. It is apt to see what Baroness Hale had said in this connection:

“...Neither the seriousness of the allegation nor the seriousness of the consequences should
make any difference to the standard of proof to be applied in determining the facts. The inherent
probabilities are simply something to be taken into account, where relevant, in deciding where
the truth lies.

“...there is no logical or necessary connection between seriousness and probability. Some

seriously harmful behaviour, such as murder, is sufficiently rare to be inherently improbable in
most circumstances. Even then there are circumstances, such as a body with its throat cut and
no weapon to hand, where it is not at all improbable. Other seriously harmful behaviour, such
as alcohol or drug abuse, is regrettably all too common and not at all improbable. Nor are
serious allegations made in a vacuum. Consider the famous example of the animal seen in
Regent’s Park. If it is seen outside the zoo on a stretch of greensward regularly used for walking
dogs, then of course it is more likely to be a dog than a lion. If it is seen in the zoo next to the
lions’ enclosure when the door is open, then it may well be more likely to be a lion than a dog."

X. EVALUATION OF EVIDENCE- DEPARTMENTAL PROCEEDINGS

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Evaluation of evidence is a judicial process and arbitrariness is surely not allowed. Although the
Indian Evidence Act is not applicable in the departmental proceedings, its provisions have to be
noticed during evaluation of evidence; albeit not with the same rigour as done in courts of law.
The Supreme Court observed in Union of India v. HC Goel6 that “mere suspicion should not be
allowed to take place of proof even in domestic inquiries” and also that “the principle that in
punishing the guilty scrupulous care must be taken to see that the innocent are not punished,
applies as much to regular criminal trials as to disciplinary inquiries.”

In State of Haryana v. Rattan Singh 7, the Supreme Court stated that; “The essence of a judicial
process is objectivity, exclusion of extraneous materials or considerations and observance of
rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or
surrender of independence of judgment vitiates the conclusions reached, such finding, even
though of a domestic tribunal, cannot be held good.”

The following established norms and principles are practiced in departmental inquiries to
appreciate and evaluate evidences:

1. Inquiry report must be based on records of the case alone- The deliberations in the
report must remain confined to the records of inquiry which consist of the Charge-sheet,
Reply thereto, Original documents relied upon by prosecution as well as defence, written
briefs filed by both parties summing up their respective cases in their own way,
depositions of witnesses produced by both sides, statement of charge-sheeted employee
and his answers to questions put by inquiry officer. Inquiry officer can neither leave out
anything from these records nor can consider anything out of the records. All public
servants can claim the constitutional guarantee provided to civil servants under article
331 that any penalty can be imposed only on the basis of evidence adduced during the
course of inquiry.
2. Material collected behind the back of accused can not be used by Inquiry Officer-
Supreme Court has clearly held in State of Assam v. MK Das8 and Union of India v.

6
1964 AIR 364, 1964 SCR (4) 718
7
AIR 1977 SC 1512, 1977 LablC 845, (1982) ILLJ 46 SC
8
1970 AIR 1255, 1971 SCR (1) 87

15
 Ramzan khan9 that any information not collected and put to the charged employee during
the course of inquiry cannot be used by inquiry officer for drawing his inferences.
3. For drawing his inferences, Inquiry Officer cannot use his personal knowledge of the
case or of persons involved. His findings must be free from personal bias.
4. Assessment is to be made only of the points at issue.
5. The burden of proof is on the employer- The Orissa High Court, in Radhakrishna v.
State10 observed that “… a tribunal is wrong if it places the burden of establishing his
innocence on the public servant” and Tripura High Court in Sulendhra v. UT11 observed
that “… charge has to be proved against delinquent and it is not for the delinquent to
absolve himself from the charge”. But it is necessary to understand that the prosecution is
bound to prove those facts which are necessary to prove the allegations made against
employee. The burden of proving essential facts relating to his version of things lie on
employee. For example, in case of a charge of misappropriation of funds; prosecution is
bound to prove that the money in question was entrusted to the charge-sheeted employee.
After that, it is for the employee to prove that he applied the money for the purpose for
which it was entrusted to him. This understanding is necessary because, in the
departmental inquiry, the case of prosecution fails, no doubt, if the basic facts relating to
charge are not proved. But, if basic facts of charge as well as certain facts related to the
version of employee are also proved; the final findings shall be arrived using the
preponderance of probability standard of proof applicable for such inquiries.
6. Guilt is not there if charges not proved-In keeping with The Supreme Court
observation in Union of India v. HC Goel12 that the principle of taking care so that the
innocent are not punished, applies to disciplinary inquiries; the inquiry officer cannot
report finding of guilt if the burden of proof has not been discharged by the prosecution
and the articles of charge have not been proved in accordance with the standard of proof
required in such inquiry.
7. Presumptions cannot fill up gaps in evidence or constitute basis of guilt - Drawing up
presumptions for the sake of filling up gaps in evidence is not allowed. Findings based on

9
1991 AIR 471, 1990 SCR Supl. (3) 248
10
Appeal (crl.) 1018 of 2002
11
1989 AIR 1094, 1989 SCR (1) 941
12
ibid

16
 such surmises would be infructuous as laid down by the Supreme Court in Jagdish
Prasad Saxena v. State13. The AP High Court has opined in re: Ganisetti Venkana14 that
in departmental inquiry, the articles of charge have to be proved by positive evidence. A
finding cannot be returned on the basis of presumption only, even though raising of such
presumption be admissible under evidence act.
8. Evidence that is afterthought has less credence- In departmental inquiry, the charged
employee has to take up all his defence points the moment he puts forth his defence. In
course of the proceeding, he may add his points of view to his defence line as the things
emerge but these will be of secondary nature and shall be related to the main defence put
forth earlier. Any material point of defence taken up for the first time at a later stage of
proceeding may be considered afterthought and may attract less credence. Similarly, such
evidence is unreliable that testifies such circumstance that is highly improbable in the
context of the case.
9. It is a general principle that motive is not relevant in departmental proceeding and hence
it is not necessary for the prosecution to prove the motive of misconduct.
10. Past record of the employee does not ipso facto prove present charge- The Supreme
Court has observed in State of Mysore v. K. Manchegowda15 that inquiry officer cannot
take into account the past bad record of the employee except when it is specifically
mentioned in the articles of charge and the employee is given a reasonable opportunity to
explain the same. It is also relevant to reiterate here the aforementioned guidance of CVC
mentioned in Para.1.3 of Ch. 3 of their Vigilance Manual that while taking up inquiries
PSE should also take a note of an individual officer’s positive achievement so that a
single procedural error does not cancel out a life-time good work.
11. Hearsay Evidence is not barred- While Hearsay Evidence is not admissible in Indian
Evidence Act, its applicability in departmental proceeding is not barred. Earlier there was
reliance on the Supreme Court observation of 1961 in the case of Jagannath Prasad
sharma v. State of UP16 that even though departmental inquiry tribunal was not bound by
formal rules related to the procedure of evidence, it cannot rely on evidence which is

13
Appeal (civil) 348 of 1958
14
1958 CriLJ 1460
15
1964 AIR 506, 1964 SCR (4) 540
16
1961 AIR 1245, 1962 SCR (1) 151

17
 purely hearsay, because to do so would be contrary to the rules of natural justice.
However, later in 1977, the Supreme Court held in State of Haryana v. Rattan Singh17
that Hearsay Evidence was not totally inadmissible in departmental inquiry. It observed
that “all materials which are logically probative for a prudent mind are permissible”
and “There is no allergy to hearsay evidence provided it has reasonable nexus and
credibility”. In the same case it was also held that “departmental authorities and
administrative tribunals … should not glibly swallow what is strictly speaking not
relevant under the Indian Evidence Act.” Thus hearsay evidence in departmental inquiry
is not completely irrelevant but cannot be treated as substantive evidence to be solely
relied upon for decision. The context and circumstances of such evidence must be
corroborated by direct evidence.
12. Documentary evidence is more reliable than oral evidence - Oral evidence cannot be
offered to contradict a document. Section 94 of Evidence Act is relevant in such case.
However, document must be placed in proper context. It is to be noted that the document
which is a report by a superior officer regarding the particular misconduct, has the same
footing as the complaint and not more. Affidavit does not have any evidentiary value. An
affidavit given by a party as proof of some fact (such as- a document has actually been
lost) shall bear value if the fact stated therein has not been controverted by a counter-
affidavit by the other party. In case of such counter-affidavit, matter has to be proved
independently.
13. Non-production by a party of a document material to the case shall raise presumption
against it. This has been codified under illustration (g) of section 114 of Evidence Act.
14. Newspaper report is no solid evidence - The Supreme Court held in SN Balakrishna v.
George Fernandez18 that “a news item without any further proof of what had actually
happened through witnesses is of no value.” Central Administrative Tribunal in AVS
Reddy v. State of AP19 observed that Press Report, though admissible in departmental
inquiry, is second-hand secondary evidence. It is credible when the person concerned
admits that the reported version is more or less the same as the views expressed by him.

17
ibid
18
1969 AIR 1201, 1969 SCR (3) 603
19
1970 AIR 422, 1970 SCR (1) 115

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 15. Expert’s reports are not substantive evidence - The reports or certificates issued by
experts are admissible evidence but cannot be treated as substantive evidence. Medical
certificate is also of the nature of expert evidence and it cannot be operative as conclusive
evidence. The report of handwriting expert is also not conclusive evidence and the
probative value of such evidence will depend on reasons stated by expert and points
noticed by him on which the alleged handwriting differs from the known handwriting of
concerned person forwarded to the expert.
16. There should not be any missing links in the circumstantial evidence - If the chain is
broken and there is no connecting evidence, the conviction becomes suspicious. The
inferential links, if any, must be accurately based upon legal presumptions.

XI. CONCLUSION

It is obvious from the foregoing that presumption of innocence is not so strongly available in the
doctrine of preponderance of probability as it is in the case of criminal trial. Preponderance of
probability is the standard of proof required to hold conviction of misconduct and to hand out
punishment. So, it is necessary for the public servants to comprehend that their actions need not
only be transparent and fair but it is also important that all actions they perform invariably appear
to be so. It is important to ensure that during scrutiny of their action, no prudent person may infer
that the probability of the same being unjust or unfair is high.

XII. REFERENCES

Books:

1. "Service Law Handbook" by LexisNexis

2. "Disciplinary Proceedings and Practice" by S.C. Sarkar

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 3. "The Law Relating to Discipline & Disciplinary Proceedings in India" by Justice V.N.
Khare
4. "Administrative Law and Practice" by C.K. Takwani

Articles:

1. "Principles of Natural Justice and Disciplinary Proceedings" by Adv. Abhishek

Choudhary (Available at: https://www.lawctopus.com/academike/principles-of-natural-
justice-and-disciplinary-proceedings/)
2. "Principles of Natural Justice in Departmental Inquiry" by Adv. P.P. Tripathi (Available
at: http://www.legalserviceindia.com/article/l269-Principles-of-Natural-Justice-in-
Departmental-Inquiry.html)
3. "Principles of Natural Justice in Disciplinary Proceedings" by Adv. Alok Prasanna
Kumar (Available at: https://www.barandbench.com/columns/principles-of-natural-
justice-in-disciplinary-proceedings)

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