1000 TIT BITS ON DISCIPLINE -191
809. Mind-Set of Inquiring Authority
Open mind.
No bias/No prejudice/No prejudging.
No conjectures.
No surmises.
No suspicion.
No pressure/influence should bear on his mind.
The mental process must not be silent instead it must seek reasons by raising questions based on six friends of Kipling-why, who, when, whose, whom and where.
High degree of objectivity.
No twist. Finding/conclusion should come the way it is coming.
810. Standard of Proof
A disciplinary proceeding is not a criminal case and the standard of proof is that of preponderance of probability and not proof beyond reasonable doubt. Therefore, probability is a very important element of proof. The dictionary meaning of probability is that it means the appearance of truth or likelihood of being realized with any statement or event based in the light of present evidence. It means the likelihood of anything to be true reduced from its conformity without knowledge, observation and experience. As the knowledge, observation and experience of men vary their notions of possibilities and probabilities, might naturally be expected to differ. Where evidence adduced by both the parties is imperfect, the court may base its decisions on probabilities. In civil cases, the balance of probabilities is the governing standard. There is a great danger of prima facie proof being mistaken for actual proof based on evidence, which is tested by probabilities. It must be remembered that when it is said that there is a prima facie case, it only means that there is ground for proceedings. It is not the same thing as proof which comes later when a court or an inquiring authority has to find whether a particular fact is proved or not. Proof is the basis for accepting an allegation to be true. There is vital difference between evidence and proof. Evidence is the means by which any alleged fact is proved or disproved and is therefore the means adopted for presenting proof. Proof is the result of evidence.
Arguments of Presenting Officer and contentions/rebuttals of Charged Official on each and every distinct fact/event should be weighed with reference to factual and truthful fact/position which the relevant exhibit/deposition on the fact/event under consideration throw. Probabilities of both the sides should be weighed to see which way the preponderance goes. All the facts/events should be assessed and weighed in a similar way with respect to each allegation/charge. At the end, if the preponderance goes on the side of the prosecution, charge may be held as proved. If the preponderance goes on the side of the defence, charge should not be held as proved.
811. There may be a situation and in fact, there are whose fulcrum of facts may be at the centre and in such a situation, it becomes difficult for Inquiring Authority to decide which way the decision should be taken. In such a situation, if Inquiring Authority is not in a position to arrive at a decision even after breaking the charge into elements, as discussed below, if the prosecution, on whom onus lies to prove the charge, fails to prove the same beyond doubt, the decision should be taken in favour of the defence who has brought sufficient evidence to nullify what the prosecution has brought on record.
Alternatively, allegation/charge may be broken into elements and each element should be assessed. At the end, combined decision may be taken to see as to whether the entire charge can be held proved or not or some element can be proved. Extent of proving the charge can be determined in this manner.
812. Sometimes it is also noticed that the prosecution fails to bring on record relevant and adequate evidence to prove the charge. But there is evidence available in the additional/defence documents which proves the charge. In such a situation, it is a fact that the Charged Official has brought this document(s) as some evidence was available to defend his case; but what happens that this document also contains evidence which goes in favour of the prosecution. Since it is an accepted evidence and if preponderance of evidence goes in favour of the prosecution, the same cannot be ignored by Inquiring Authority. In such an eventuality, Inquiring Authority has no alternative, but to prove the charge, as Inquiring Authority, whose function is to find truth, cannot ignore the evidence simply because it pertains to the defence.
If two or more than two Charged Officials are involved in separate and simultaneous proceedings and if all the listed and additional documents are not common, every care should be taken that document which is not meant for a particular Charged Official should not be used, otherwise the inquiry will be vitiated. Text of reports of Charged Officials should be carefully gone through to ensure that facts pertaining to other Charged Official(s) have not crept into the report.
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