Chhattisgarh High Court: Gautam Bhaduri, J., held that proper opportunity of hearing shall be given and procedure of rules of natural justice to be followed before passing appropriate orders in departmental enquiry.
The facts of the case are such that the petitioners, Toman Lal Sahu working as Head Constable and Chandrabhan Singh Bhadoriya as constable were both posted at Police Station Moudha Para, Raipur, City Kotwali. The telephonic conversations made between criminal Chhota Annu @ Anwar (a mastermind criminal) and the petitioners were recorded. The conversations depicted favoritism towards the criminal by the petitioners and CD transcripts were produced before the higher officials. The services were thus terminated on the basis of the telephonic/mobile conversations by invoking power under Article 311(2) Clause (b), as such, no enquiry was held. The dismissal order was challenged which was thereby affirmed, assailing which instant petition was filed.
Counsel for the petitioners Mr N K Shukla submitted that the mandatory requirement of Article 311(2) (b) was not followed and no evidence was produced to prove that the voices were of the petitioners by a forensic expert or any co worker. It was further submitted that termination order was supplied on the basis of source of alleged conversation converted in a Compact Disk (C.D) but neither the source of CD was disclosed nor was it supplied. Moreover, in view of various judicial pronouncements, it is clear that action of State-Respondents cannot be allowed as recording of telephonic conversation offends Article 21 of the Constitution of India.
Counsel for the State Mr Somkant Verma opposed the prayer stating that as the criminal is notorious and the nature of conversation is extremely serious, getting evidence against him was not possible and hence departmental enquiry was dispensed with.
The court observed that a certain procedure which is required to be followed regarding the admissibility of the electronic record under Section 65-B of the Evidence Act has not been followed in the instant case. It was further observed that the action of respondents to dispense with the departmental enquiry before passing the dismissal orders on the basis of telephone tape conversation itself would be illegal.
The Court further relied on judgment PUCL v. Union of India, (1997) 1 SCC 301 wherein it was held
Telephone conversation is an important facet of man’s private life. Right to privacy would certainly include telephone conversation in the privacy of one home or office. Telephone tapping would, thus infract Article 21 of the constitution of India unless it is permitted under the procedure established by law”.
When a person is talking on telephone, he is exercising his right to freedom of speech and expression. Telephone tapping unless it comes within the grounds of restrictions under Article 19(2) would infarct Article 19(1)(a) of the Constitution”.
Directions regarding Telephone tapping in India [as laid down in PUCL case (supra)]
- An order for telephone-tapping in terms of Section 5(2) of the Telegraph Act shall not be issued except by the Home Secretary of India (Central Government) and Home Secretaries of the State Government. In an urgent case, the power may be delegated to an officer of the Home Department of the Government of India and the State Government not below the rank of Joint Secretary. Copy of the order shall be sent to the Review Committee concerned within one-week of the passing of the order.
- The order shall require the person to whom it is addressed to intercept in the course of their transmission by means (of) a public telecommunication system, such communications as are described in the order. The order may also require the person to whom it is addressed to disclose the intercepted material to such person and in such manner as are described in the order.
- The matters to be taken into account in considering whether an order is necessary under Section 5(2) of the Act shall include whether the information which is considered necessary to acquire could reasonably be acquired by other means.
- The interception required under Section 5(2) of the Act shall be the interception of such communications as are sent to or from one or more addresses, specified in the order, being an address or addresses likely to be used for the transmission of communications to or from, from one particular person specified or described in the order or one particular set of premises specified or described in the order.
- The order under Section 5(2) of the Act shall, unless renewed, cease to have effect at the end of the period of two months from the date of issue. The authority which issued the order may, at any time before the end of two months’ period renews the order if it considers that it is necessary to continue the order in terms of Section 5(2) of the Act. The total period for the operation of the order shall not exceed six months.
- The authority which issued the order shall maintain the following records:
(a) the intercepted communications,
(b) the extent to which the material is disclosed,
(c) the number of persons and their identity to whom any of the material is disclosed
(d) the extent to which the material is copied,
(e) the number of copies made of any of the material
- The use of the intercepted material shall be limited to the minimum that is necessary in terms of Section 5(2) of the Act.
- Each copy made of any of the intercepted material shall be destroyed as soon as its retention is no longer necessary in terms of Section 5(2) of the Act.
- There shall be a review Committee consisting of Cabinet Secretary, the Law Secretary and the Secretary, Telecommunication at the level of the Central Government. The Review Committee at the State Level shall consist of the Chief Secretary, Law Secretary and another member, other than the Home Secretary, appointed by the State Government.
(a) The Committee shall on its own, within two months of the passing of the order by the authority concerned, investigate whether there is or has been a relevant order under Section 5(2) of the Act. Where there is or has been an order whether there has been any contravention of the provisions of Section 5(2) of the Act. (b) If on an investigation the Committee concludes that there has been a contravention of the provisions of Section 5(2) of the Act, it shall set aside the order under scrutiny of the Committee. It shall further direct the destruction of the copies of the intercepted material. (c) If on investigation, the Committee comes to the conclusion that there has been no contravention of the provision of Section 5(2) of the Act, it shall record the finding to that effect”.
The Court held “The order of dismissal is primarily based on telephonic recorded conversation, which is against the dictum laid down by the Supreme Court, therefore, would tantamount to offend Article 21 of the Constitution of India. Hence, the justification to dispense with enquiry on the basis of telephonic recorded conversation cannot be insulated by the judicial verdict.”
In view of the above, petition was disposed off.[Toman Lal Sahu v. State of Chhattisgarh, 2021 SCC OnLine Chh 711, decided on 26-03-2021]
Arunima Bose, Editorial Assistant has reported this brief.