JUDGMENT
Sudhir Narain, J.
1. This Full Bench has been constituted to answer the following question :
“In absence of applicability of Evidence Act to departmental enquiries, on what basis the concepts of “admissibility” or “relevancy” of evidence can be imported into departmental enquiry?”
2. The question referred to above arises on the facts given below :
“The State of U.P. implemented the recommendations of the Vth Pay Commission Report from 1.1.1996. This report provided that the pay scale of the Government employee shall be fixed on new pay scales. The Government of Uttar Pradesh issued a Government Order dated 6.9.1997 addressing to the Commissioner/Secretary, Board of Revenue, U. P., Lucknow, wherein it was stated that the pay scale of Tehsildars/Apar Tehslldars is being enhanced in the pay scale of Rs. 2,200-4,000 and in the like manner, the pay scales of Naib Tehsildars being Rs. 1,400-2,300 is being enhanced at Rs. 1,640-2,900. In view of the said Government Order, respondent No. 2 issued an order on 29.10.1997 directing all District Magistrates/Commissioners of the State of U. P. to revise the pay scales of Tehsildars and Naib Tehsildars in accordance with the Government Order dated 6.9.1997. In the meantime, the Principal Secretary, Department of Finance, issued Government Order dated 31.12.1997 laying down the guidelines in respect of the Pay Fixation in the revised pay scales. According to the said Government order, it was provided that it will be open to cadre/post-holder to exercise option to opt either revised pay scale of the pay scale existing on 1.1.1996 or opt general revised pay scale of the aforesaid enhanced/modified pay scale from the date on which the pay scale was enhanced/modified.
3. The petitioners are alleged to have received the enhanced pay scale. A special audit report was submitted from the office of the District Magistrate, Sultanpur, that the petitioners were getting enhanced salary and not in accordance with the Government order dated 31.12.1997.
4. The contention of the petitioners is that they were not required to submit option and the audit report was wrong.
5. The letters dated 16.8.2001 and 29.2.2002, whereby the petitioners have been asked to refund the excess amount paid to them, have been challenged in these writ petitions.
6. When the matter came up before the learned single Judge, learned counsel for the petitioners placed reliance upon the decision Dilip Singh Rana v. State of U. P., 1994 All LJ 580, in support of his contention that the petitioners should have been afforded opportunity of hearing before the audit report is accepted by the authority concerned. The learned single Judge was of the view that the said decision had made certain observations that in the departmental enquiry, the audit report is not “substantive evidence” and the facts must be proved only by “admissible evidence”. In Dilip Singh Rana’s case (supra), the question of the applicability of the Evidence Act was not involved. In that case, the disciplinary proceedings were initiated against the petitioner therein. He was served with a charge-sheet and one of the charges was that he misappropriated the funds. The State Government relied upon the audit report, which indicated that the petitioner had misappropriated the funds. The Court took the view that since no enquiry was held, no witness was examined and no compliance was made with the mandatory provisions of Article 311 of the Constitution, the impugned order of removal was bad. In that context, an observation was made that the audit report could not be used as ‘substantive evidence’ of the genuineness or bonafide nature of the transactions referred to in the audit report. If it has to be used against an incumbent in a disciplinary proceedings, it has to be proved like any other fact by relevant and admissible evidence. The Court was not considering the admissibility of the evidence in the context of the provisions of the Indian Evidence Act, 1872.
7. Section 1 of the Evidence Act itself provides that it will apply to all judicial proceedings in or before any Court, including courts-martial, other than courts-martial convened under the Army Act. The Supreme Court in Union of India v. T. R. Varma, AIR 1957 SC 882, held that the Evidence Act has no application to enquiries conducted by Tribunals, even though they may be Judicial in character. The law only requires that such Tribunals should observe rules of natural justice in the conduct of the enquiry and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a court of law. The principles of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by the party, and that no material should be relied on against him without his being given an opportunity of explaining them. In State of Haryana and Anr. v. Rattan Singh, AIR 1977 SC 1512, it was held that in a domestic enquiry, the strict and sophisticated rules of evidence under the Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. It was observed as under :
“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 materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is, strictly speaking, not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach 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 vitiate the conclusions reached, such finding, even though of a domestic Tribunal, cannot be held good.”
8. In the facts and circumstances of the case, the question referred to above, does not apply. However, after hearing the learned counsel for the parties, we answer to the question as follows :
“The Evidence Act is not applicable in the departmental enquiry but the principles of natural justice will be applicable. Whenever any evidence is produced either oral or documentary on behalf of any person/authority. In case an oral evidence is relied upon, the person concerned should be given opportunity to cross-examine and if a document is relied upon, he should be given opportunity to explain it.”
The question is answered accordingly. 9. The matter shall not be listed before the appropriate Bench.