The main legal point established is that the Evidence Act is not applicable in departmental enquiries, but the principles of natural justice must be observed.

( 1 ) THIS Full Bench has been constituted to answer the following question :

"in absence of applicability of Evidence Act to departmental enquiries, on what basis the concepts of "admissibility" or "relevancy" of evidence can be imported into departmental enquiry?"

( 2 ) THE question referred to above arises on the facts given below :

"the State of U. P. implemented the recommendations of the Vth Pay Commission Report from 1. 1. 1996. This report provided that the pay scale of the Government employee shall be fixed on new pay scales. The Government of Uttar Pradesh issued a Government Order dated 6. 9. 1997 addressing to the Commissioner/secretary, Board of Revenue, U. P. , Lucknow, wherein it was stated that the pay scale of Tehsildars/apar Tehslldars is being enhanced in the pay scale of Rs. 2,200-4,000 and in the like manner, the pay scales of Naib Tehsildars being Rs. 1,400-2,300 is being enhanced at Rs. 1,640-2,900. In view of the said Government Order, respondent No. 2 issued an order on 29. 10. 1997 directing all District Magistrates/commissioners of the State of U. P. to revise the pay scales of Tehsildars and Naib Tehsildars in accordance with the Government order dated 6. 9. 1997. In the meantime, the Principal Secretary, Department of Finance, issued government Order dated 31. 12. 1997 laying down the guidelines in respect of the Pay Fixation in the revised pay scales. According to the said Government order, it was provided that it will be open to cadre/post-holder to exercise option to opt either revised pay scale of the pay scale existing on 1. 1. 1996 or opt general revised pay scale of the aforesaid enhanced/modified pay scale from the date on which the pay scale was enhanced/modified. "

( 3 ) THE petitioners are alleged to have received the enhanced pay scale. A special audit report was submitted from the office of the District Magistrate, Sultanpur, that the petitioners were getting enhanced salary and not in accordance with the Government order dated 31. 12. 1997.

( 4 ) THE contention of the petitioners is that they were not required to submit option and the audit report was wrong.

( 5 ) THE letters dated 16. 8. 2001 and 29. 2. 2002, whereby the petitioners have been asked to refund the excess amount paid to them, have been challenged in these writ petitions.

( 6 ) WHEN the matter came up before the learned single Judge, learned counsel for the petitioners placed reliance upon the decision Dilip Singh Rana v. State of U. P. , 1994 All LJ 580, in support of his contention that the petitioners should have been afforded opportunity of hearing before the audit report is accepted by the authority concerned. The learned single Judge was of the view that the said decision had made certain observations that in the departmental enquiry, the audit report is not "substantive evidence" and the facts must be proved only by "admissible evidence". In Dilip Singh Ranas case (supra), the question of the applicability of the Evidence Act was not involved. In that case, the disciplinary proceedings were initiated against the petitioner therein. He was served with a charge-sheet and one of the charges was that he misappropriated the funds. The State Government relied upon the audit report, which indicated that the petitioner had misappropriated the funds. The Court took the view that since no enquiry was held, no witness was examined and no compliance was made with the mandatory provisions of Article 311 of the constitution, the impugned order of removal was bad. In that context, an observation was made that the audit report could not be used as substantive evidence of the genuineness or bonafide nature of the transactions referred to in the audit report. If it has to be used against an incumbent in a disciplinary proceedings, it has to be proved like any other fact by relevant and admissible evidence. The Court was not considering the admissibility of the evidence in the context of the provisions of the Indian Ev