Preponderance of probability of electronic evidence

S.B.adil rahman (Querist) 02 August 2020 This query is : Resolved
Whether in a disciplinary proceeding an electronic evidence of the prosecution without any certificate u/s 65 B of the Evidence Act or the original instrument from where it was copied can be relied as a proof of misconduct of employee under the doctrine of the preponderance of probability? If not so then what are the parameters to prove the electronic evidence in a disciplinary proceeding. I am finding no judgment on the admissibility of the electronic evidence in a disciplinary proceeding on the basis of the preponderance of the probability. Experts to kindly resolve the problem based on settled laws.

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This discussion explores whether electronic evidence, such as a CD recording, can be used in employee disciplinary proceedings based on the 'preponderance of probability' doctrine, even without a Section 65B certificate or proof of its original source. While disciplinary proceedings don't require the same strict proof as criminal trials, the reliability and admissibility of such evidence, especially when its origin is unknown and potentially relates to a different incident, are questioned. The consensus suggests that while Indian Evidence Act rules aren't strictly applied, the Inquiry Officer must be satisfied of the evidence's authenticity and relevance, potentially requiring a competent witness if the evidence is challenged.

Rajendra K Goyal (Expert) 02 August 2020
Disciplinary proceedings are different than the trial in court and material relied in it are not as of high standard as in court proceedings. It should be to find the fact.

Karnataka High Court in the case of “T.V. Gowda vs State Of Mysore And Ors. on 13 December, 1973 observed as under:

From the aforesaid two decisions relied upon by the learned First Additional Government Advocate, the following points of distinction between the criminal proceedings and the disciplinary proceedings emerge :

(1) A disciplinary proceeding is not a criminal trial.

(2) In criminal proceedings the purpose sought to be achieved is protection of the public while in disciplinary proceedings the purpose sought to be achieved is purity and efficiency of public service.

(3) A criminal Court requires high standard of proof for convicting an accused, while such a standard of proof is not required for finding a person guilty in disciplinary proceedings and it is enough if there is preponderance of probability of the delinquents guilty.

Sudhir Kumar, Advocate (Expert) 02 August 2020
please give facts of the case.

S.B.adil rahman (Querist) 02 August 2020
Issue is the production of a CD recording of misconduct of an employee. The footage was not from the cctv footage of the organisation but said to be copied from a mobile phone description or ownership of which is unknown. Employee says that the cd shows him but its contents (intoxication) were not related to the instant proceeding but was of an old incident for which he had been punished earlier. The description of the wearing apparel of the CO as stated in the charge differs from the footage of the CD. Quality of evidence is not the issue. The issue is the reliability and the admissibility of CD without knowing its source or any physical evidence. Can the CO be pronounced guilty based only on the CD. Any ruling of court on its admissibility without any supporting evidence or certificate?

Dr J C Vashista (Expert) 03 August 2020
Since it is not a direct CD of the CCTV footagae the evidence is not covered by provisions of Section 65B of the Indian Evidence Act,1872

Rajendra K Goyal (Expert) 03 August 2020
Provisions of Indian Evidence Act are not strictly applicable in departmental proceedings. If the Inquiry Officer is satisfied beyond doubt regarding the genuineness of the proof, he can proceed accordingly.

P. Venu (Expert) 03 August 2020
The charged officer has the option to object to the said evidence being taken on record. If so, the presenting officer need to introduce the same through a competent witness. The evidence could be taken on record if the Inquiry Authority is satisfied as to its authenticity and relevance.

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