Documents Being Unavailable Or Untraceable Can’t Be A Foundation For Leading Secondary Evidence: Bombay High Court

The Bombay High Court held that if the documents are not immediately available or traceable, that cannot be a foundation for leading secondary evidence.

The Nagpur Bench held thus in a Writ Petition filed against the Order of the Central Government Industrial Tribunal cum-Labour Court by which an Application seeking permission to lead secondary evidence was rejected.

A Single Bench of Justice Prafulla S. Khubalkar observed, “The only reason mentioned in the application that the documents are not immediately available/traceable, in my opinion cannot constitute to be a foundation for leading secondary evidence. Although photocopies of these documents are on record, there is no justification to establish that the original has been destroyed or lost or on account of reasons not arising from the default or neglect of the employer the originals cannot be produced in reasonable time. The petitioners have failed to make out any exceptional case.”

The Bench was of the view that there is no foundation in the pleadings or in the Application for allowing Petitioners/Management to lead secondary evidence.

Senior Advocate R.B. Puranik appeared on behalf of the Petitioners while Senior Advocate R.L. Khapre appeared on behalf of the Respondent.

Factual Background

The Respondent was employed at the Petitioner-company and was working as Chief Administrative Assistant. In 2009, the Respondent was charge-sheeted for certain charges of misconduct and the Management decided to conduct departmental enquiry against the Respondent. The enquiry was concluded and the punishment of dismissal from service was imposed upon the Respondent. He raised an industrial dispute under Section 2-A of the Industrial Disputes Act, 1947 (IDA) and on failure of the conciliation proceedings, the reference was registered before the Central Government Industrial Tribunal (CGIT).

The Tribunal found the departmental enquiry conducted against the Respondent to be fair and proper, however, it held that the findings of the Enquiry Officer were not based on proper appreciation of evidence and the same were inferred to be perverse. But it granted opportunity to the Management to prove the misconduct before it. During the proceedings before the CGIT, the Management examined witnesses to prove misconduct and also filed an affidavit. Thereafter, it moved an Application for grant of permission to lead secondary evidence with respect to four documents on the ground that the documents were not available/traceable at their office. As their request was rejected, they approached the High Court.

Reasoning

The High Court after hearing the arguments from both sides, noted, “… the secondary evidence can be permitted to be led if the party is able to establish that the case falls in any of the categories mentioned in these provisions. The position of law is fairly settled that for leading secondary evidence there has to be a foundation in the pleadings or in the evidence. This position of law is reflected even in the judgments relied upon by the petitioners, preferred above.”

The Court said that the crucial issue is whether Petitioners Management has led sufficient foundation for leading secondary evidence with respect to the four documents mentioned in the application.

“The description of the documents mentioned in the application shows the documents are related to correspondence/letters by the employees and, therefore, for considering admissibility of these documents the original documents will be indispensable”, it added.

The Court remarked that the Petitioners’ contention about absence of original documents only on the basis of bare statement in an application cannot be straightway accepted.

“In the backdrop of enunciation of the legal position, on careful consideration of the factual and legal aspects involved in this matter it is clear that the petitioners have failed to make out any exceptional case for enabling it to lead secondary evidence. The impugned order passed by the Tribunal is in consonance with the position of law with respect to provisions of Section 58 of the Bharatiya Sakshya Adhiniyam 2023. I find no perversity in the impugned order”, it concluded.

Accordingly, the High Court dismissed the Writ Petition.

Cause Title- Hindustan Petroleum Corporation Ltd. & Anr. v. Vinod s/o. Anandrao Parate (Neutral Citation: 2025:BHC-NAG:8183)

Appearance:

Petitioners: Senior Advocate R.B. Puranik and Advocate N.W. Almelkar.

Respondent: Senior Advocate R.L. Khapre and Advocate R.G. Kavimandan.

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