Introduction:
In a significant ruling clarifying the scope of secondary evidence under the Bharatiya Sakshya Adhiniyam, 2023, the Bombay High Court in Hindustan Petroleum Corporation Ltd. v. Vinod Anandrao Parate [Writ Petition No. 2546 of 2025] held that mere assertions of non-availability or non-traceability of documents, without any supporting affidavit, cannot justify admission of secondary evidence. Justice Prafulla S. Khubalkar delivered this ruling while dismissing a writ petition filed by Hindustan Petroleum Corporation Ltd. (HPCL) challenging an order of the Central Government Industrial Tribunal (CGIT), Nagpur, which had refused permission to HPCL to lead secondary evidence in a departmental dispute. The case highlights the Court’s strict interpretation of the evidentiary framework under the newly enacted Bharatiya Sakshya Adhiniyam, underscoring the principle that secondary evidence is an exception rather than the rule, and that parties must lay a proper legal and factual foundation before invoking it.
Arguments of the Petitioners:
The petitioners, Hindustan Petroleum Corporation Ltd., approached the High Court aggrieved by the CGIT’s rejection of their application seeking to produce secondary evidence of four documents that were said to be missing or untraceable. They contended that they were entitled to establish misconduct in departmental proceedings against the employee, and for this purpose, all available evidence including secondary evidence was crucial. The petitioners stressed that they had already placed photocopies of the relevant documents on record and thus the Tribunal ought to have permitted them to prove their case through these copies. It was argued that the provisions of Sections 58 and 60 of the Bharatiya Sakshya Adhiniyam, 2023, envisaged situations where secondary evidence could be relied upon if the original was not available, and that no prejudice would be caused to the employee since the documents were already part of the record. Further, it was emphasized that denial of secondary evidence would result in grave injustice, as it would prevent the management from substantiating its allegations of misconduct against the employee. HPCL therefore maintained that the Tribunal’s refusal to permit secondary evidence amounted to a denial of their right to a fair adjudication.
Arguments of the Respondent:
On the other hand, the employee, Vinod Anandrao Parate, opposed the petition and supported the Tribunal’s order. It was argued that the petitioners had failed to establish any legal or factual basis for admission of secondary evidence. The respondent pointed out that the employer’s application merely contained a vague assertion that the documents were “not immediately available/traceable” in the office and that such casual statements, without any affidavit or substantiating material, could not be considered sufficient to displace the requirement of producing the original. It was further submitted that under the Bharatiya Sakshya Adhiniyam, secondary evidence can be allowed only when the original has been destroyed, lost, or cannot be produced for reasons beyond the control of the party seeking to rely on it. In this case, no such reason had been shown by the petitioners, nor had they taken any serious steps to locate the documents. The respondent stressed that the authenticity of documents can only be verified through the originals, particularly when they bear signatures or other identifying features, and that permitting secondary evidence in the absence of a proper foundation would amount to diluting the safeguards built into the evidentiary law. Accordingly, the respondent contended that the Tribunal’s order was well reasoned and ought to be upheld.
Court’s Judgment:
After considering the rival contentions, Justice Prafulla S. Khubalkar upheld the Tribunal’s order and dismissed the writ petition. The Court observed that Sections 58 and 60 of the Bharatiya Sakshya Adhiniyam make it clear that secondary evidence is permissible only in limited circumstances, namely when the original document has been destroyed, lost, or cannot be produced due to reasons not attributable to the default or negligence of the party. Importantly, before a party can be allowed to rely on secondary evidence, it must lay a proper foundation through pleadings or evidence establishing why the original is unavailable. In the present case, the Court noted that the petitioners had not filed any affidavit explaining the unavailability of the documents, nor had they provided any credible reason to show that the originals were destroyed or lost. The only explanation given in the application—that the documents were “not immediately available/traceable”—was found to be vague and lacking in genuineness. The Court emphasized that such a casual assertion could not be treated as a sufficient foundation for admission of secondary evidence. Moreover, the Court pointed out that the application was signed only by the counsel and not supported by any affidavit of a competent officer of the company, thereby further weakening the credibility of the petitioner’s plea.
The Court also highlighted the importance of original documents in establishing authenticity, especially when they bear signatures or markings of concerned persons. It observed that since the documents in question were expected to be in the custody of the management, a higher level of diligence was expected from the employer to either produce the originals or at least demonstrate convincingly why they were unavailable. The failure to do so, according to the Court, suggested neglect or lack of bona fides. In this context, the Court categorically held that merely stating that documents are not traceable does not constitute sufficient justification for invoking secondary evidence under the Bharatiya Sakshya Adhiniyam.
Ultimately, the Court concluded that the Tribunal had correctly rejected the application for leading secondary evidence, as the petitioners had failed to establish the necessary legal foundation. It reiterated that secondary evidence is not a matter of right but an exception to the general rule requiring primary evidence, and that strict compliance with statutory requirements is mandatory. The writ petition was therefore dismissed, reaffirming the Tribunal’s order.
This judgment carries significant implications for employers, managements, and litigants generally, as it underscores the stringent standards applicable for admission of secondary evidence under the Bharatiya Sakshya Adhiniyam. It makes clear that vague assertions of non-availability or non-traceability will not suffice, and that supporting affidavits and credible explanations are essential prerequisites. The decision reflects the Court’s commitment to upholding the integrity of the evidentiary process and preventing misuse of secondary evidence provisions to bypass the requirement of primary documents. By insisting on strict compliance, the Court has reinforced the principle that evidentiary exceptions must be sparingly and cautiously applied, ensuring fairness to all parties involved.