BOMBAY HIGH COURT’S RULING ON NON-TRACEABILITY OF DOCUMENTS

INTRODUCTION

The case of Hindustan Petroleum Corporation Ltd. v. Shri Vinod examines the legal threshold for admitting secondary evidence in judicial proceedings, specifically in the context of employment and industrial disputes, under the newly enacted Bharatiya Sakshya Adhiniyam, 2023. The petitioner, Hindustan Petroleum Corporation Ltd. (HPCL), sought the High Court’s intervention under Article 227 of the Constitution after the Central Government Industrial Tribunal-cum-Labour Court, Nagpur, rejected their application to submit secondary evidence for four critical documents that allegedly supported misconduct charges against the respondent, Vinod Anandrao Parate. The crux of the petitioner’s grievance lay in the Tribunal’s refusal to allow photocopies of original documents, purportedly lost or untraceable within HPCL’s custody, to be considered as valid evidence.

The background of this writ petition is rooted in a protracted industrial dispute. The respondent, Parate, was dismissed from HPCL following a departmental inquiry into alleged misconduct. Parate invoked Section 2A of the Industrial Disputes Act, 1947, resulting in reference proceedings before the Tribunal. Although the Tribunal found the inquiry itself fair, it held that the findings were perverse and unsubstantiated, thereby allowing the Management to attempt to prove misconduct directly before it. During these proceedings, HPCL moved to submit photocopies of documents believed to be unavailable, with an application for permission to adduce secondary evidence.

The legal contest became one of procedure and evidentiary rules: HPCL argued that its application, which referenced Section 58 and 60 of the Bharatiya Sakshya Adhiniyam, was sufficient foundation for admission of secondary evidence, and that further procedural safeguards could be satisfied in final hearings. They relied on Supreme Court and High Court precedents affirming that foundational requirements may be established either in pleadings or via subsequent evidence. Conversely, Parate contended that HPCL’s application lacked a foundational affidavit, and the mere assertion of non-availability of originals was insufficient to satisfy the statutory prerequisites for secondary evidence.

Thus, the matter before Justice Prafulla S. Khubalkar revolved around the intersection of employment law, procedural compliance, and evidentiary standards under the new Adhiniyam. The judgment’s ultimate significance lies in its articulation of what constitutes “sufficient foundation” for leading secondary evidence, and how these requirements are to be interpreted in light of the legislative intent to prevent abuse and ensure fairness in industrial adjudication.

FACTS OF THE CASE

Vinod Anandrao Parate was employed at HPCL in its clerical cadre as Chief Administrative Assistant at Khapri LPG Plant. On May 11, 2009, Parate was issued a charge sheet for alleged misconduct, prompting a departmental inquiry that subsequently resulted in his dismissal from service. Parate, disputing both the charges and the inquiry’s outcome, raised an industrial dispute under Section 2A of the Industrial Disputes Act, 1947. Upon failure of conciliatory proceedings, the matter was referred to the Central Government Industrial Tribunal (CGIT), Nagpur.

The Tribunal initially adjudged the departmental inquiry as fair, but found the Inquiry Officer’s findings “perverse” and lacking in proper appreciation of evidence, which undercut the basis for termination. However, it allowed HPCL a further opportunity to prove the alleged misconduct before the Tribunal—a decision subsequently challenged by both parties in writ petitions to the High Court. By a common order, those petitions were dismissed, and the Tribunal’s directive stood.

During the subsequent proceedings before CGIT, HPCL produced witnesses and submitted the affidavit of Kamlesh Sheth, but crucially also filed an application on April 8, 2025, seeking permission to lead secondary evidence for four documents: employee leave applications, a statement by a workman, a letter to State Bank of India, and JDE screenshots for cash receipts. HPCL stated the originals of these documents were “not available/traceable” at its office, and only photocopies could be produced.

The respondent did not file a reply to this specific application but opposed it during the hearing, arguing that HPCL’s mere assertions regarding non-availability were unsupported by any affidavit or proper factual foundation. The Tribunal, recognizing that the documents were in HPCL’s own custody, found the reasons for unavailability “lacking genuineness,” particularly since no effort at tracing or affidavits from responsible officials had been presented. As a result, HPCL’s application to lead secondary evidence was rejected, which was challenged in the present writ petition.

RULE APPLIED

The legal framework relevant to this case is provided primarily by Sections 58 and 60 of the Bharatiya Sakshya Adhiniyam, 2023. Section 58 elaborates the definition and admissibility parameters of secondary evidence, stating that copies made from originals by mechanical processes and other categories may qualify as secondary evidence. Section 60 outlines the conditions under which secondary evidence may be admitted, notably when the originals have been “destroyed or lost,” or when a party cannot produce them for reasons not attributed to their own neglect or default.

Judicial precedent provides that the right to lead secondary evidence is not absolute, but contingent upon a party establishing a proper foundation—by way of pleadings or explicit factual evidence—as to why the originals are unavailable. The Supreme Court’s interpretation highlights that primary evidence is the best evidence, and only “exceptional cases” warrant deviation from this principle. If originals are within possession or could be produced with due diligence, secondary evidence cannot supplant them. Furthermore, a mere assertion in application or pleadings does not suffice; a credible account of the circumstances leading to the loss or destruction is essential, often corroborated by affidavits or other supporting evidence.

Recent authorities emphasize that where the document is otherwise available or in the custody of the party seeking to lead secondary evidence, strict scrutiny is required to prevent abuse of process. The foundational prerequisites must be met to ensure the authenticity of the secondary evidence and guard against admission of potentially untrustworthy or fabricated documents. The Tribunal and the High Court considered both statutory and precedential requirements in reaching their decisions, determining that HPCL had failed to provide sufficient factual basis or supporting affidavit justifying its inability to produce the originals, thereby failing to satisfy the legal conditions for admissibility of secondary evidence under the Adhiniyam.

ANALYSIS:
ARGUMENTS OF THE PETITIONERS

The petitioners, Hindustan Petroleum Corporation Ltd., approached the High Court after the Central Government Industrial Tribunal refused their request to present secondary evidence in relation to four documents that were claimed to be missing or untraceable. HPCL argued that to prove allegations of misconduct against an employee in departmental proceedings, it was essential to rely on all available evidence, including copies, since the originals were unavailable. They insisted that photocopies of the relevant documents had already been submitted to the Tribunal and, therefore, the Tribunal ought to have allowed them to substantiate their case through those copies.

HPCL further maintained that Sections 58 and 60 of the Bharatiya Sakshya Adhiniyam, 2023 anticipated circumstances where secondary evidence could be accepted, so long as the originals could not be produced. The petitioners stressed that the presentation of these copies would not prejudice the employee, especially since the documents were already part of the case record. Moreover, they argued that denying their application for secondary evidence would amount to grave procedural unfairness, effectively preventing the management from presenting its side and proving alleged misconduct. In essence, HPCL contended that the Tribunal’s refusal to admit secondary evidence infringed upon their right to a fair adjudicatory process, unjustly restraining them from fully demonstrating the facts necessary for a proper determination of the dispute

ARGUMENTS OF THE RESPONDENTS

In response, the employee, Vinod Anandrao Parate, contested the petition and supported the Tribunal’s decision. He argued that Hindustan Petroleum Corporation Ltd. failed to provide either a legal justification or sufficient factual grounds to warrant the admission of secondary evidence. According to Parate, the company’s application relied solely on an ambiguous statement that the documents were “not immediately available/traceable” in their office, a claim unsupported by any affidavit or corroborating material. Such informal assertions, he maintained, fell short of the evidentiary requirements for dispensing with the originals.

Parate highlighted that, under the Bharatiya Sakshya Adhiniyam, secondary evidence is permissible only when the originals have been lost, destroyed, or cannot be produced for reasons genuinely beyond the applicant’s control, none of which HPCL had established. He further pointed out that HPCL had not made serious efforts to locate the original documents. Stressing the need for authenticity, especially for documents bearing signatures or other unique identifiers, Parate argued that only the originals could be conclusively verified. Admitting secondary evidence without a proper basis, he asserted, would undermine the legal safeguards built into evidentiary law.

Therefore, Parate urged that the Tribunal’s order was logical and justified, and should be sustained.

JUDGEMENT

Justice Prafulla S. Khubalkar delivered a reasoned judgment affirming the Tribunal’s order rejecting HPCL’s application to lead secondary evidence. The Court began by contextualizing the controversy—not as a blanket challenge to all secondary evidence, but rather focusing on whether HPCL had met the requisite legal standard and factual foundation.

The Court meticulously examined the contents of HPCL’s application dated April 8, 2025, determining that the only reason offered for non-production was that the documents were “not immediately available/traceable” at the HPCL office. The Court noted that the documents in question—leave applications, workman statements, a letter to SBI, and JDE screenshots—were ones that would be expected to remain within HPCL’s custody throughout. The assertion that such documents were unavailable, without a cogent explanation or evidence of genuine loss or destruction, lacked credibility.

Justice Khubalkar cited sections 58 and 60 of the Bharatiya Sakshya Adhiniyam, outlining the conditions under which secondary evidence may be admitted—most notably, when originals are lost, destroyed, or unproducible for reasons outside the party’s own default. The Court reiterated that admitting secondary evidence is the exception, not the rule, and that the best evidence principle mandates the production of originals unless a proper statutory exception is proved.

The judgment referenced leading authorities, including the Supreme Court’s recent pronouncement in Vijay v. Union of India. The Court extracted several pivotal principles:

1. Law requires best evidence—primary evidence—first, with secondary evidence admissible only when originals cannot be produced through no fault of the proponent.
2. Mere application or marking of a document as an exhibit by the court does not substitute for proof of its contents as per law.
3. Secondary evidence becomes admissible only upon a foundational showing, generally supported by affidavits or other credible demonstration of unavailability of originals.

Justice Khubalkar found HPCL’s application wanting in every respect. Not only was there no supporting affidavit from a responsible official attesting to the search for originals or explaining their unavailability, but there was no evidence to suggest the documents were truly destroyed or irretrievable for reasons not due to HPCL’s neglect. The application only stated, in counsel’s bare words, that originals were “not immediately available/traceable.”

The Court further observed that the authenticity of the documents—especially those critical to employment termination—could only be properly established by examining originals. Allowing secondary evidence in such circumstances, without a stringent foundation, posed risks to the sanctity of factual determination and created precedent for lackadaisical compliance with evidentiary standards.

Accordingly, the High Court held that the Tribunal’s order was legally sound; HPCL had failed to satisfy the statutory prerequisites. The writ petition was dismissed, and the rule discharged. The judgment closed with a general observation that “no indulgence is required under Article 227 of the Constitution of India,” and that evidentiary law under the Adhiniyam must be strictly applied to preserve both procedural discipline and substantive justice

RATIO DECIDENDI 

The ratio decidendi of the judgment is anchored in the requirement that the party seeking to adduce secondary evidence must lay a sufficient legal foundation, demonstrating with credible explanation (ideally supported by affidavit and factual proof) why the original documents cannot be produced. Vague claims of unavailability or mere procedural assertions do not satisfy the legislative intent underlying Sections 58 and 60 of the Bharatiya Sakshya Adhiniyam, 2023.

The Court held that secondary evidence is admissible only in exceptional cases—where originals are lost, destroyed, or cannot be produced for reasons not attributable to the default or neglect of the party offering evidence. This ratio is fortified by the Supreme Court’s pronouncement in Vijay v. Union of India (2023) and a consistent line of prior authorities that articulate the “best evidence rule.” Justice Khubalkar emphasized that a party must actively endeavor to produce primary evidence, and the departure to secondary evidence requires strict compliance with procedural and substantive safeguards.

Where documents are in the custody of the party seeking to adduce secondary evidence, the burden to explain their absence increases. Such explanation must be more than a routine claim; it must be supported by the record, including adequate searches and efforts by responsible officers. Failure to supply such foundation mandates rejection of secondary evidence.

Therefore, the ratio stands as: Secondary evidence may not be led unless the application is supported by a clear, bona fide factual foundation demonstrating loss or destruction beyond the applicant’s fault, corroborated as necessary by affidavit or admissible evidence. This preserves the integrity of judicial proof and guards against manipulation or procedural irregularity in industrial and other adjudications.

CONCLUSION

The judgment in Hindustan Petroleum Corporation Ltd. v. Vinod Anandrao Parate marks a reaffirmation of key procedural and substantive standards governing the admissibility of secondary evidence in Indian courts. By insisting on a strict foundation—beyond mere assertion—for the loss or unavailability of original documents, the Court underscores the importance of thorough, transparent, and credible procedures in employment and industrial matters, where the rights and livelihood of individuals hang in the balance.

The case demonstrates that while the law accommodates exceptional circumstances in which originals cannot be produced, this accommodation must not be allowed to erode the basic evidentiary safeguards. The requirements of the Bharatiya Sakshya Adhiniyam are not mere technicalities; they are core standards ensuring the reliability of evidence and the fairness of adjudication.

Ultimately, the Court’s refusal to permit HPCL to lead secondary evidence, in the absence of any genuine search or explanatory affidavit, reflects both judicial caution and fidelity to legislative intent. It serves as authoritative guidance for tribunals and litigants—reminding all parties that foundation and authenticity remain the bedrock of evidence, and that shortcuts in evidentiary compliance, especially by parties in control of the originals, will not be tolerated.

This ruling, though rendered in the industrial law context, will likely influence a broader spectrum of litigation, fortifying the best evidence rule and curbing procedural laxity. The High Court’s approach thus balances justice, procedural rigor, and legislative clarity, contributing meaningfully to the evolving jurisprudence on secondary evidence in India.