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Tuesday, September 25, 2012

Right of Cross Examination and Access to Documents

1.      Kashinath Dikshita vs. Union of India (1986) 3 SCC 229, the Apex Court was considering the importance of access to documents and statement of witnesses to meet the charges in an effective manner in disciplinary proceedings against a government servant. The court observed as under:-

 

"10. …. When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the employee concerned prepare his defence, cross-examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question: 'What is the harm in making available the material?' and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself. On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it."

 

2.      That, in State of Uttar Pradesh vs. Saroj Kumar Sinha (2010) 2 SCC 772,  the Apex Court has further dealt with the argument that no prejudice has been caused to the appellant in the following words:-

"12. Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he would have needed the copies of the documents. So also he would have needed the copies of the documents to enable him to effectively cross-examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself."

 

3.       That, in Bareilly Electric Supply Co. vs. Workmen AIR 1972 SC 330, this is what the learned Judges have held:-

"the application of the principles of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no material can be relied upon and to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used."

 

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