Preponderance of Probability

The preponderance of Probability is an interesting legal principle that all top management personnel and the legal and HR Fraternity must understand. Although, the principle is strongly applicable in civil and taxation cases. The author has focused on labour jurisprudence and its implications in Disciplinary Inquiry.

The Bharatiya Sakshya Adhiniyam, 2023 under Sec.2 (1) (h) (j) (j) "proved". – “A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists”;

Cholan Roadways Ltd. v. G. Thirugnanasambandam, (2005) 3 SCC 241, the Supreme Court held that “It is now a well-settled principle of law that the principles of the Evidence Act have no application in a domestic enquiry”.
​
In this judgment, it implies the principle of Equity. Although, in criminal cases, there is very strict adherence to the provisions of the Evidence Act, here where, the Courts shall not go into quantum of punishment whatever the personal circumstances. Theft means theft, whatever the value of the items.

In the case of Wheels India Ltd VS Ganesh Bajirao [2024 LLR 406], Bombay High Court has held “Hearsay evidence is permissible in domestic enquiry……….”

In the case of Hindustan Petroleum Corp VS Mavji Jethala [2024 LLR 641], Bombay high court has held “Charge is not required to be proved beyond doubt. Principles of Preponderance of Probability applies in domestic enquiry.”

In the case of Suresh Vasudeo VS Priyadarshini Indragandi Kreeda Sankul [2024 182 FLR 41], Bombay High Court has held “In domestic enquiry hearsay evidence can be considered”
​
In the case of Godson A Rodrigues VS SVC Co-operative Bank [2024 LLR WEB 135], Bombay High Court has held “In domestic enquiry hearsay evidence is admissible. Test of Proof of charge in domestic enquiry of probabilities”

As we have seen in various labour adjudications, the courts go beyond to ensure fairness and justice. Whether the punishment is disproportionate to the act of misconduct, liberal and broad interpretations of social welfare legislations like, the Maternity Benefit Act, Payment of Gratuity Act, Employee Compensation Act, Equal Remuneration Act, PoSH Act, etc are all based on the principle of equitable justice. Here, the courts closely balance the probability of facts of evidence provided the circumstantial or compelling circumstances.

But, at the same time, the domestic enquiry must strictly adhere to & follow the Principles of Natural Justice. We already know that all the labour legislation comes under COURTS OF EQUITY, where all other legislations fall under the jurisdiction of COURTS OF LAW.

Here where, our flexibility in adhering to fairness, justice, and transparency, plays a great role. As we know the inner meaning of EQUITY, calls for flexible interpretations, putting forth actual facts & circumstances by both the employer as well as the employees.
 
What is Preponderance of Probability?
About:

• It is determining which fact or evidence is more likely to happen.
• This concept does not involve the elimination of all doubts rather it weighs the two presented facts based on which has a greater likelihood.
• It contrasts with the principle of proving beyond a reasonable doubt, which is mandated under Criminal Laws. In criminal courts there is strict adherence to “evidence” shall have to be established on the documents/oral evidence etc.
• In civil/labour cases the party having the burden of proof has to show that their side of the story is more plausible than the other side.
  This is the strong base of this principle.

Key Elements of Preponderance of Probability:

• The fact of one side must be proved that it is more likely to occur than the other side.
• The evidence having greater credibility or weight shall be determined by the court to conclude the case.
• Such principle can be applicable in disputes related to contracts, and torts, where the burden of proof lies on the claimant.
• The balance should be made by the court between the seriousness of the case to the evidence presented. The standard of evidence varies with the gravity of the issue.

What are the Challenges in Applying Preponderance of Probability?The nature of subjectivity is a very critical one, due to varying interpretations by courts, as judges are required to assess the credibility of witnesses, the reliability of evidence, and the likelihood of conflicting versions of events. In domestic inquiries, the challenging task of assessing the nature of proving/establishing is on the shoulders of “Enquiry Officers” & “Representatives of the Employer”.

1. Subjectivity in Weighing Evidence: The Enquiry Officer must evaluate the quality and quantity of evidence presented by both parties. The representatives of both parties. The representatives of both parties may contend strongly by quoting different judgments of various courts interpreting similar pieces of evidence differently.

2. Circumstantial Evidence: In many cases, direct evidence may not be available, and courts must rely on circumstantial evidence. While circumstantial evidence can be compelling, it requires careful analysis to avoid erroneous conclusions. This is extremely important evidence in matters of sexual harassment cases, misappropriation, fraud, theft, and most importantly cases related to performance evaluations etc. And more importantly in PoSH cases.

3. Bias in Decision-Making: Human biases can influence how Disciplinary Authorities finally perceive evidence and witnesses. While the legal system strives for impartiality, the subjective nature of the preponderance standard can sometimes lead to judgments influenced by personal or cultural biases.

The Allahabad High Court in the case of Rishi Kesh Singh v. State (1970) emphasised that “preponderance” literally means the “outweighing” of evidence, however slight the tilt of the balance. The court explained that even a slight probability in favour of one side, if more convincing than the other, would suffice.
​
Difference Between Principle of Preponderance of Probability & Proving Beyond Reasonable Doubt in strict adherence to “The Bharatiya Sakshya Adhiniyam, 2023”.

Conclusion
​The preponderance of probability is a cornerstone of employment-related litigations, ensuring that cases are decided on the balance of evidence rather than absolute certainty. Its lower threshold compared to criminal cases allows courts to resolve disputes fairly and efficiently. However, the subjective nature of this standard also presents challenges, as Top Management must carefully weigh the evidence and avoid bias in decision-making.

Judicial precedents in both civil and many employment-related contexts emphasise the importance of evaluating the totality of circumstances and evidence presented by the parties. Top Management must remain vigilant in applying this principle consistently, ensuring that justice is served based on the most probable outcome. Despite the complexities and challenges, the preponderance of probability remains an essential tool for resolving employment-related disputes and balancing the scales of justice.
​
About the Author
K. Vittala Rao is Legal & Management Consultant, Bangalore

Courtesy:
Business Manager
June 2025

Preponderance of Probability
File Size:	1919 kb
File Type:	pdf

Download File

---

---

K. Vittalarao Books