ALLOWING ADDITIONAL DEFENCE DOCUMENTS 6.10 ( B ) ii A . Government issued letter to Ministry of Home Affairs OM No. F 30/5/61 AVD dated 25/8/61. IN RAIZADA TRILOK NATH Vs. UNION OF INDIA 1960SC SLR 759 “ The right of access to official records is not unlimited and it is open to government to deny such access if in its opinion such records are not relevant to case or not desirable in the public interest to allow such access. The power to refuse access to official record should , however , be very sparingly exercised. The question of relevancy should be looked at from the point of view of defence and if there is any possible line of defence to which the documents may in some way be relevant though at the relevance is not clear to the disciplinary authority at the time the request is made, the request for access should not be rejected . The power to deny access on the ground of public interest should be exercised only when there are reasonable and sufficient grounds to believe that public interest will clearly suffer --------------- in any case where it is decided to refuse access, reasons for refusal should be cogent and substantial and should invariably be recorded in writing”. ( B ) If a accesss to additional defence documents is denied without cogent and substantial reasons it amounts to denial of reasonable opportunity. ( ATTAR SINGH V. INSPECTOR NORTH DELHI LINES AND OTHERS ( 1991 ) 2 ATJ 507. ( C ) Denial of witness ( STATE OF BOMBAY Vs. NURUL LATIF KHAN AIR 1966 SC 269 ) I O SHOULD INTO CONSIDERATION THE NATURE OF ACCUSATIONS MINISTRY OF HOME AFFAIRS O.M. No. 30/5/61 AND 25/8/61 prescribes that: 1. The relevance should be looked at from the view point of defence and not of prosecution. 2. If there is any possible line of defence in which the clear may in some way be relevant though relevance is not clear to the enquiring authority at the time when request is made the request of the access should not be rejected. 3. In case of refusal , the reasons should be recorded. IN UNION OF INDIA Vs, ACHIN Kr. Dey , 1990 LAB IC 1704 “ Failure to record reasons would be fatal to the action taken. The remark the document was not considered relevant does not satisfy the requirement”. FOLLOWING DOCUMENTS ARE ADMISSIBLE 1. Copies of listed witnesses ‘ s statements . Non- supply will be denial of reasonable opportunity. 2. FIR ( RAIZADA TRILOK NATH Vs. UNION OF INDIA SLR 1967 SC 759 3. Previous statements of prosecution witnesses ( Chandrama Tiwary ). 4. Complaint or representation on whose basis the preliminary enquiry was started ( Chintaman case ). 5. Copies of the confidental or preliminary enquiry report ( K.C. TANDON Vs. UNION OF INDIA AIR 1974 SC 1589 ). 6. Copies of the report forming basis of the charge ( DHUP SINGH Vs. STATE SLR 1969 P & H 436, STATE OF ASSAM Vs. BIMAL KUMAR AIR 1963 SC 1622 ). 7. Material in the nature of evidence – oral or documentary – which from basis of charge ( SRIKANT Vs. UNION OF INDIA AIR 1963 Patna 38 ). 8. CR on conduct. 9. Copy of written statement of Co-accused ( Gunanidhi Saha case ). 10. Other relevant official record ( Raizada Trilok Nath case, Kashi Dikshita A ) . Copies of additional documents shall be provided. 11. Copies which are illegiable and are supplied to CO it will be denial of resonalbe opportunity ( BHUPINDER SINGH Vs. UNION OF INDIA 1987 2 SCC 234 ). DELIBERATE WITHHOLDING THE DOCUMENT – CASE IS NOT SUSTAINED ( CHITTARANJAN CHODHRY Vs. STATE OF BIHAR ( 1987 ) 2 SCC 104 ) The copies of earlier statements have to be supplied if he makes a request before he submits his written statements. Copy of preliminary enquiry report shall be given. ( S.K. GANGULY Vs. UNION OF INDIA , 1988 (5) 1 LLN 63 CAL . HC ) Non – production of most relevant witness is bad ( JAFFER SHERIFF Vs. UNION OF INDIA 1988 (1) SLJ (CAT) 458 HYDERABAD BENCH) CHITTARANJAN CHODDHRY Vs. STATE OF BIHAR (1987) 2 SCC 104 “ Where the material document was in possession of the prosecution but it was deliberately withheld by them, the supreme court held that the conviction of the appellant could not be sustained”. DEFENCE WITNESSES (A). Where the IO disallows the defence witness he will give good, sufficient and cogent reasons ( STATE OF BOMBAY Vs. NURUL LATIF AIR 1966 SC 269 ), the reasons will be recorded at the time of refusal. ( B ). Additional witnesses or documents not in the list can be allowed. (C ). IO Should summon them ( D.N. KULSHRESHTA Vs. STATE OF RAJASTHAN 1986 (4) SLR 734, RAJASTHAN HC) D. IO should write to their employer ( C. BURROWS Vs. UNION OF INDIA 1990(2) SLR 232 CAT JABALPUR). E. Furnishing the list at an appropriate stage will not disentitle him ( UNION OF INDIA Vs. HARCHARAN SINGH 1974 SLR (SN21) RAJASTHAN HC) F. If prosecution witness is dropped, defence can produce him ( S. ANDRE Vs. UNION OF INDIA 1987(4) SLJ (CAT) 639 MADRAS BENCH). G. Evidence of outside witness if relevant should be taken ( S.S.L GUPTA Vs. MANGEMENT OF DCM CHEMICALS 1987 (4) SLR 430 DELHI HC). Arbitrainess or whims have no place in summoning defence witness ( D.D. SENSI Vs. UNION OF INDIA 1985 LAB IC DEHLI (NDC) 7}. The IO has refused to summon some witness on the ground that they were not present at the time of incident. The proceedings were held to be vitiated ( MOHD. YOUSUF ALI Vs. STATE SLR (1973) 1 AP 650) The IO refused the witness on the ground that witness does not appear to have knowledge of the case the proceedings vitiated ( GOVIND SHANKER Vs. STATE AIR 1963 MP 115). If the defence is that alleged act was committed with the approval of or under the specific directions of the superior authority the evidence of such superior authority is material evidence and should be obtained during Enquiry ( N.C.CHOUDHRY Vs. STATE 1961-11 LLJ 470 CAL). STATE OF HARYANA Vs. RATTAN SINGH AIR 1977 SC 1512 “It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian evidence act may not apply. All material which logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility . EVIDENCE -VALUE OF STATEMENT MANGE RAM Vs. LOK SABHA SECRETARIAT 1991 DELJ 77 If there was any bar for summoning such witness and if there was no material except the statements of such witness for coming to the conclusion that the charge against the petitioner stands proved, in such a situation if such a witness is not produced and tendered for cross- examination it is to be held that the enquiry proceedings are completely vitiated and are not worth the paper which has been utilized for recording the same. THE PRINCIPLES APPLICABLE TO THE PRODUCTION OF DOCUMENTS ARE ALSO APPLICABLE TO INSPECTION OF DOCUMENTS This is done when the charge sheeted employee is not sure whether the document or material is relevant for his defence and in order to find this out he wants a prior inspection. C. GABRIEL Vs. STATE (1959) 2 MLJ 15( MAD HC) CHINTAMAN Vs. STATE OF MP AIR 1961 SC 1625 NANDKISHORE Vs. COMMR, JABALPUR AIR 1962 MP 15 When inspection or production of a document is necessary for cross- examination then it can not be denied because to invite a person to cross –examination a witness while keeping back from his earlier statement made by the witness would be to enable a man to find his way blindfolded. This is plainly and manifestly not just . RELEVANT WITNESS RAMESH BABURAO SAWAI Vs. BANK OF BARODA (1988) 56 Flr 164 (BOM HC) When some letters were produced but the persons writing letters were not produced then the appleant could have asked the inquiry officer to tender these parties for cross-examination . If this was not done, no such objection can be taken in writ petition. UNION OF INDIA Vs. INDER NATH 1978 11 LLJ 65 The right to inspect documents, by necessary implication, entitles the employee to take down notes of the documents. Otherwise it is meaningless and contrary to the principles of natural justice. A.K. DATTA Vs. UNION OF INDIA 1978 11 LLJ 337 Failure to give inspection of documents relied on and asked for by the employee and non supply of copies of such documents violates the principles of natural justice. KANDA Vs. GOVERNMENT OF MALAYA (1962) 2 WNR 1153: 1962 Cri LR 485(PC). When copy of a report was forwarded to the adjudicating officer but it was not shown to the accused person then the principles of natural justice were violated because there was a risk that the report might prejudice the adjudicating officer. In such cases copy of the report should be supplied to the accused. STATE BANK OF INDIA Vs. D.C. AGGARWAL 1992 (5) SLR 598 SC ) Non-supply of vigilance report taken into consideration by the Disciplinary Authority-order imposing punishment liable to be set aside. MANAK LAL Vs. PREM CHAND AIR 1957 SC 425 It is often said that justice must not only be done but must also appear to be done - The objection on the ground of bias must be taken at the earliest opportunity. DIRECTOR GENERAL OF POSTS AND TELEGRAPHS Vs. N.J. MAJMDAR 1974 11 LLJ 44 Refusal to permit the accused employee to inspect the report of the preliminary investigation , which the Inquiry officer relied on as evidence , is a violation of the principles of natural justice. Refusal of request for permission to be defended by a lawyer in a case in which there was voluminous evidence of as many as twenty-seven witness , quit a number of documents exhibited and also evidence of experts adduced and the presenting officer was a trained prosecutor was violation of the principles of natural justice. UNION OF INDIA Vs. H.C. GOEL 25 FJR 159(SC) Suspicion can not be treated as an evidence against the worker because even in disciplinary proceedings scrupulous care is necessary to see that innocent person are not punished. K. SUNDARA RAJAN Vs. DIG, 1972 SLR 723, 1973 3LJ 100 (MAD HC) The proof should be capable of scrutiny and should stand the test of reasonableness consistent with normal conduct and probability and were the findings proceed on erroneous view of the matter then the high court can interfere. DEFENCE OF ALIBI ( means that the worker was not present at the spot at the time when the incident is said to have happened). MALWA SUGAR MILLS CO. LTD. Vs. T.T. PUNJAB 25 FJR 209( PUN.HC) When the worker was charged of misbehaviour with the chief Engineer and worker was asked to put any question to him which he declined but he was not examined as a witness nor his complaint was produced then he was the best person to state as to what actually transpired and the Tribunal was not wrong in drawing any adverse inference from this fact. HARISCHANDRA PATHAK Vs. REGISTRAR OF CO-OP. SOCIETIES (1966) 12 FLR 141 (MP HC ) When the charge was that the employee communicated the offending information to the press, the evidence of the press correspondent and the collector who came to know of the disclosure , is material . These witnesses can not be dispensed with on the presumption that the press correspondent would not have disclosed the soueces of information and collector would not have liked to disclose the source from which he obtained the documents. This has resulted into denial of reasonable opportunity. The difficulty of proof is no substitute for proof necessary to establish the charge and it can not support an unfair conclusion grounded merely on suspicion. BANKELA COLLIERY Vs. WORKMEN (1966) 12 FLR 60 (IT) If an order is given by means of a particular documents then that document is a material evidence. When the charge was that the workers came up from the mine through the haulage incline road inspte of prohibitory notices and neither the notices were produced nor the officer mentioned in the charge sheet who saw them coming out of the haulage incline then the charge can not be said to be proved. MATERIAL WITNESS IN CASE OF INSUBORDINATION If the abusive, derogatory or defamatory language is used in a certain document then that documents is a material documents . RAMCHORBHI JAGBHI Vs. HIMABHAI MILLS CO. LTD. 1956 ICR 725 (IC) when a worker was charged for abusing an officer and his defence is that he did not abuse the officer but on the other hand the officer had abused him, then the officer is a material witness and ought to be produced by the management. RANBAXY & CO. (P) LTD. Vs. WORKMEN , DEL GOVT, GAZ. PART VI, DT 28.3.1968, P.127 (IT) When the subordinate employee says “I will see” the words complained to be taken by themselves do no necessarily amount to a threat in all circumstances. Whether the words are threats in a particular case will depend upon the contents and, therefore, the evidence of the officer to whom the words are spoken becomes material. DEVIDAS Vs. SHRI SHAILAPPA , AIR 1961 SC 1277 Where the documents having an important bearing on the dispute is withheld by a party an adverse inference may properly arise that if produced the documents may not support the party’s case, but for this it must be shown that document was with the party or in his power. OIL AND ALLIED PRODUCTS PVT. LTD. Vs. WORKMEN SHRI HEMRAJ ARORA DEL FAZ, DATED 22.10.1970, P. 617(LC) The withholding of necessary documents raises adverse presumption against the management. BALLARPUR COLLIERIES Vs. STATE I.C. (1964) 1 LLJ 175 ( BOMBAY HC ); MADRAS PRESS LABOUR UNION Vs. BHARATA DEVI (1954) 1 LLJ 752 ( IT ); WORKERS OF MURUGAN TRANSPORT LTD. Vs. MANAGEMENT, 1994 LLJ 327( IT) The officer who give the order , which was disobeyed, must be produced ( Material evidence in case of disobedience of orders ) HINDUSTAN STEELS LTD. Vs. WORKMEN CAL GAZ, PART IC, DT. 10.8.1967, P. 555 (IT) When it was alleged that an officer reported against refusal of an employee to perform work, then that officer is a material witness to prove the allged charge. Even if the management withheld him from giving evidence, the Inquiry committee ought to have insisted on his production. GANESH SAKHARI SAKHAR KARKHANA COPERGAON Vs. SYED IBRAHIM 1967, ICR 650 (IC), MUREGESAM PILLAI Vs. GNANA SAMBANDH PANDARA SANNADHI , AIR 1917, PC 6, SHANTIPRASAD JAIN Vs. KALINGA TUBES LTD, AIR 1962 ORISSA 202, RAMESHWAR SINGH Vs. BALJITLAL PATHAK, AIR 1929 PC 95, HIRALAL Vs. BADKULAL AIR 1953 SC 225 If a document is material then it must be produced by the employer or by the charge sheeted workmen if the document is in their possession irrespective of the fact whether the burden of proof lies on one party or the other. The Indian courts have strongly commented against the practice adopted by the parties not to produce important documents or information relying upon the abstract doctrine of onus of proof and thus failing to furnish to the courts the best material for its decision. According to the courts, this is inversion of sound practice. Relying upon the aforesaid cases, it was held by PATNA HIGH COURT that if a document is in possession of a party to litigation and is likely to throw light on the case then he should produce before the court . The rule that a party wanting production of documents should summon the same applies to third parties but were parties to suit do not produce such documents then adverse inference can be to drawn against them. HARZARIBAGH MUNICIPALITY Vs. FULCHAND AIR 1966 PAT 434. MANAGEMENT OF KORES INDIA PVT. LTD. Vs. D.P. HISSARIA, DEL GAZ, DT. 13.1.1972 , P. 47 When complaints were addressed to an officer who also witnessed part of the incident then his non production shatters the inquiry. STATE Vs. ABDUL HAFIZ, AIR 1955 HYDERABAD 200, 1955 Cri LLJ 1962, FRANCIS HECTOR Vs. EMPEROR , AIR 1937 ALL 182 The witness can be classified as eye witness and hearsay witness. The eye witness are those who have actually witnessed the incident for which a charge sheet has been given to an employee. The eye witnesses are , therefore , material witnesses. BEGUM LAXMI COTTON MILLIS LTD. Vs. WORKMEN CAL GAZ, PART 1-C, DT.17.6.1955, P. 535 (IT) When the charge was that the workmen was found sleeping but the eye witnesses were not examined, then it is difficult to believe the evidence. JAGADISHPRASHAD KASHIPRASAD Vs. STATE , AIR 1970 BOMBAY 166 For drawing an adverse inference material should be placed either by cross – examination or witnesses to show that witness was available to the other party for the purpose of giving evidence and unless this is done there is no question of drawing an adverse inference. NARAIN Vs. STATE OF PUNJAB [ AIR 1959 SC 484; AIR 1954 SC 54; AIR 1955 (NUC) 6099 ( BOMBAY ), AIR 1936 PC 289 ] It is an accepted rule that witness essential to the unfolding of the narrative on which the prosecution is based, must be called by the prosecution. The test whether a witness is material is not whether he would have given evidence in support of the defence but whether his testimony is essential to the unfolding of the narrative on which the prosecution case is based. A person who comes immediately after the incident can not be called material witness. RAGHAVA KURUP Vs. STATE OF KERALA AIR 1965 KERALA 44 Whether the witness is essential or not would depend on whether the witness could speak to any part of the prosecution case or whether the evidence led disclosed that he was so situated that he would have been able to give evidence of the fact on which the prosecution relies in proof of their case. STATE OF U.P. Vs. JAGGO (1971) 2 SCC 42 When a witness was taking with a person , who was attacked , at the time of alleged incident and his name was mentioned in the first information report then he should not have been left out on the plea that he was won over. EVIDENCE RANCHHORE BHAI JAGBHI Vs. HEEMABHI MILLS CO.LTD. 1956 I CR 725 (IC) The charge against a worker was that he had abused the head jobber and his defence was that it was the head jobber who abused him and threatened to assault him with a bride. In the circumstances it became very necessary to enquiry into the allegation against the head jobber and it was very necessary to examine him . SATE OF PUNJAB Vs. DEWAN CHUNNILAL , AIR 1963 PANJ 503 When adverse reports against an employee are brought on record in support of the charge then justice and fair play required that favourable reports should not be withheld . STEHEN SENEVIRATNE Vs. KING, AIR 1936 PC 289, 300; 37 Cri LJ 963 ( PC ) , MASALTI Vs. STATE OF U.P. AIR 1965 SC 202, RAI SINGH Vs. State of h.p. AIR 1965 HP 49, SURESH Vs, State , 1967 , DLT 243 (Del HC), HABEEB MOHD. Vs. STATE OF HYDERABAD , AIR 1954 SC 51, 1954 SCR 475 The witnesses which are essential to the unfolding of the narrative must of course, be called by the prosecution whether the effect of their testimony is for or against the prosecution itself and , therefore , even if such witnesses are not reliable the prosecution is bound to produce the same . SANJOY SEN Vs. UNION OF INDIA (1984) 2 SLJ 600 (CAL HC ) The documents were sought to be inspected because they would prove that in past occasions similar contract had been extended. It is for the petitioner to decide what documents are required for defence. His defence was that his recommendations for extension of the contract itself. He is therefore , prejudiced by withholding the above documents. UNION OF INDIA Vs. T.R. VERMA (1958) 2 LLJ 259 (SC) , 1958 SCR 499, AIR 1957 SC 882, NAND KISHORE Vs. COMMISSIONER , JABALPUR AIR 1962 MP 15 ALL documents necessary for cross-examination or defense should be made available if asked for – A worker has a right to be given all opportunity for the effective exercise of the right of cross examination. One of the aside for cross examination is perusal of the previous statements of persons who appeared as witness before the inquiry officer. If it appears that effective exercise of this right has been prevented by the enquiry officer by not giving to the officer relevant documents to which he is entitled that inevitably would mean that enquiry had not been held in accordance with the rules of natural justice. KESAVAN NAMBOODRI Vs. STATE OF KERALA 1982 1 LLJ 219 It was held that where the disciplinary authority is satisfied that some evidence which would have been available was not collected by the enquiry officer, the disciplinary authority can direct the inquiry to proceed further with the enquiry and record such evidence in the interest of justice. TIRLOK NATH Vs. UNION OF INDIA, 1967 SLR 759 (SC) When the inquiry officer did not permit inspection of the first information report and the statements recorded at the investigation stage then employee was prejudiced in making his only violates Rule 55 of the civil service ( classification , control and appeal ) Rules 1 930 but also Article 311 of the Constitution of India. GOURI PT. GHOSH Vs. STATE OF W.B. 1968, SLR 625 (CAL HC ) When the petitioner depended for his defence on two letters and he repeatedly presented himself for inspection of these documents or getting their copies and they were promised to him by the authorities but were not supplied on one pretext or the other, then the proceedings are vitiated. GAURI PRASAD GHOSH Vs. STATE OF W.B. 1968, Lab IC 735 (CAL HC ) If files in possession of government are not produced and it caused prejudice then proper procedure is not followed. THE ACCUSED EMPLOYEE HAS A RIGHT TO PRODUCE ANY DOCUMENT IN HIS DEFENCE HARSH NARAYAN SINGH Vs. I.G. POLICE AIR 1954 UP 50 In a departmental enquiry the charge sheeted worker has two distinct rights for production of documents. In the first phase he has a right to see such documents or statements which may be helpful to him in cross-examination or to find out which defence should be taken by him. Such documents may be a part of his defence. Apart from these documents a charge-sheeted worker is entitled to ask production of such documents which he thinks necessary to prove his defence and in case he makes any such request then the enquiry officer is bound to ask the management or the government department to produce such document unless he thinks that the document asked for is irrelevant. DEBAJYOTI BURMAN Vs. NALINAKASHY SANYAL (Dr) AIR 1954 CAL 216 In order to decide the relevancy of the document, it is necessary for the Inquiry officer to summon the documents from the department because unless such a document is before him it is impossible for him to find out whether the document had the value claimed for it by the defence or not. This principles is also recognized in criminal cases. STATE OF M.P. Vs. CHINTAMAN , AIR 1961 SC 1623 The failure of the Inquiry officer to make sufficient efforts to trace a departmental file which was missing and his indecent haste in the matter were held to amount to a denial of reasonable opportunity. Good faith is not sufficient to save a wrong procedure from challenge. NIRANJAN DASS Vs. STATE OF PUNJAB 1968 SLR 183 (P & H HC ) The disclosure of documents is necessary because the responsibility of officer to explain and justify their acts are the chief safeguards against oppression and corruption. STATE OF BOMBAY Vs. AMAR SINGH RAVAL AIR 1963 GUJ 244 If a copy of the confidential sheet is not supplied then it is material fact which is relevant to the question of reasonable opportunity. KANDHAI Vs. DISTT. OPERATING SUPDT, AIR 1971 ALL 323 When the memorandum served with the charge sheet mentioned certain documents then it is apparent that departmental authority intended to place reliance on the documents and inspection can not be refused on the ground that it was confidential. MATERIAL EVIDENCE IN CASE OF FALSIFICATION OF DOCUMENTS When in case of charge of false entries in the account books, the defence was then it was done at the instance of the son of the managing director it was the duty of the management to produce inevitably to the inference that the appellant was afraid to face cross-examination . C.N. KRISHNA MURTHY Vs. ABDUL SUBBAN AIR 1965 MYS 128 In case of falsification of accounts, it is not sufficient to show that the entries were wrong but it should also be shown that the accused willfully made wrong entries to defraud the state . past similar instances show that these were not made innocently . Whenever it is necessary to rebut even by anticipation, the defence of accident mistake or other innocent condition of mind, the evidence that he was following a systematic course of conduct of the same specific kind is relevant. AMRITA LAL HAZRA Vs. EMPEROR, 1LR CAL 957 In such cases evidence of similar facts can be given to show the state of mind of the parties. PRODUCTION AND INSPECTION OF DOCUMENTS STATE OF U.P. MOHD. SHARIF (1982) 2 SCC 376, 1982 LAB IC 1234, AIR 1982 SC 937, (1982) 2 SLJ 259 When a preliminary enquiry was held in which the statements of witnesses were recorded then the request of the employee to inspect the file of the preliminary enquiry should not have been rejected and copies of the statement should have been given to the employees. GOURI PRASAD GHOSH Vs. STATE OF W.B.,1988 SLR 625 (CAL HC ) When the petitioner depended for his defence on two letters and he repeatedly presented himself for inspection of these documents or getting their copies and they were promised to him the authorities but were not supplied on one pretext or the other then the proceedings are vitiated. CHHOTALAL VAGHJIBHAI Vs. VIVEKANAND MILLS CO.LTD, 1970 LAB IC 1606, AIR 1970 GUJ 277 In order to decide whether the manager misappropriated or the worker misappropriated the worker relied upon a practice and for that purpose other past documents were relevant. Such documents were refused and the charge of misappropriation was limited to two transaction only. The enquiry in the circumstances can be held to be vitiated. STATE OF M. P. Vs. CHINTAMAN SADASHIVA AIR 1961 SC 1963 If copies of documents are not supplied in spite of demand then enquiry is vitiated if there is prejudice. STATE OF A.P. Vs. KAMESHWARRAO (1957) 1 AnWR 371 (AP HC ) An accused officer called for 28 documents out of which some of the documents were not made available and it was held that there was denial of adequate opportunity. LAKSHMI NARAYAN Vs. PURI AIR 1954 CAL 335 Where instead of supplying a full report only a part thereof is supplied the inquiry will be vitiated only if it is proved that there is a prejudice by the absence of the omitted portion. IYENDAR ( B.V.N.) Vs. STATE OF MYSORE (1965) 2 LLJ 519 (MYS HC ) When the departmental or employer did not want to rely on certain statement recorded during preliminary enquiry and it is the employee officer who wants the statements for cross-examination then it is for him to take copies of the same. PROCEDURAL STAGES PRELIMINARY HEARING Inspection of Listed documents on receipt of charge sheet (CVC cir latter no.10 DSP 3 dated 19/6/87. If the documents are bulky and photo copies be given he may be given opportunity to inspect the documents in about 15 days time. Defence Documents The question of relevance should be looked at from the point of view of defence . If even the relevance is not clear the request should not be rejected. INSPECTION OF DOCUMENTS DEFINATION 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. FACTS IN ISSUE 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. RELEVANT FACTS 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. Since photo copy is not admissible as evidence unless it is compared by original. In the absence of original, even expert has given his opinion on photo state copy, it is not admissible. However, opinion of expert can only be given on the basis of certain fundamental characteristics of writing of a person, which can not be ascertained from photo state copy. The majority of original documents stand seized by the CBI. The seizure memos to this effect have been produced by me as regards seized documents in order to prevail upon that the originals cannot be got inspected and further I plan to prove the xeroxed copies of seized listed documents from the bank Officials who handed over the Originals to the CBI. What is the status of such listed documents on account of theirs originals in custody of CBI and the originals of these cannot be produced for inspection by CO and his DO. The delinquents are supposed to obstruct the exhibiting of such documents in evidence. production of xexox copies - attested or verified along with the seizure memo would do for the department enquiry. If there is an objection it can be objected on the ground 1) it is not original 2)they are not the true or valid document 3) the document are forged etc..- and all allegation have to be proved beyond doubt! CBI is a statutory authority established under the Delhi Special Police Establishments Act. You can produce the photocopies along with the seizure memos from CBI as to the originals. In departmental enquiries, the Indian Evidence Act is not strictly followed you may certainly request the court to summon the concerned officer of CBI handling the matter and direct him to produce the attested true copies of all the originals in his custody. when he produces all the originals along with attested copies, you may exhibit the same after comparing them with originals. If original are with others, then you can produce xerox copies of the documents, get those xerox copies notarize or certified, or even you can also request for issue of summons to those person who are having the custody of original and can have it compared or ispected in the court. Whether there is any legal or technical difference between xeroxed copies Verified and Attested to be true copy. The CO is contesting the word verified used on the xeroxed copies of listed documents and insisting it to be substituted by the word Attested to be true copy in these cases the CO will not take your words all he may want is the words he is familiar or that has already used in earlier files! - most notary public use the terms - attested to be true copies of the original for the very reason for person like your CO - but some of them use only the term verified - it also means that he had verfied the document with the orginals - if the copies did not match the originals he will not seal it as verified - in basic principle both the terms mean the same but to the person like your CO it will apear as similar but not the same! hope you understand the pun! - the CO wants not the words - ask him what excatly he wants?!!
Posted on: Sun, 14 Dec 2014 06:44:22 +0000
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