The Chhattisgarh High Court last week comprising of a bench of Justice Goutam Bhaduri while setting aside a dismissal order passed against a constable and a head constable who allegedly wanted to favour the criminal and the phone conversation to that effect was recorded, observed that the dismissal order shall be focused solely on telephone communication recorded, which, therefore, would amount, against the dictum established by the Supreme Court, offending Article 21 of the Indian Constitution. Therefore, a judicial judgment cannot isolate the reason for dispensation from the enquiry on the basis of a registered telephone discussion. (Toman Lal Sahu S/O Panth Ram Sahu Vs State of Chhattisgarh)
Facts of the case
The pleas is of the petitioners who were dismissed from service on the basis of the telephonic/mobile conversations (with a criminal) merely on the basis of CD transcriptions of the conversation by invoking power under Article 311(2) Clause (b), as such, no departmental enquiry was held.
Further, when the said dismissal order was subject to departmental appeal, the same was also affirmed in appeal.
The challenge in the petitions before the Court, therefore, was to the dismissal orders passed by the respondent State Respondents.
Issue before the court
Whether the telephonic conversation between the two individuals can be recorded to form a basis of dismissal?
Contention of the Parties
Learned counsel for the petitioners submitted that admittedly before the petitioners were dismissed from services, though the ground was taken that if the departmental enquiry is held, no evidence would be available but the reading of dismissal order would show that the mandatory requirement of Article 311(2)(b) were not satisfied.
They submitted that on the basis of source of alleged conversation converted in a Compact Disk (C.D) the petitioners' services were terminated. It was contended that neither the source of CD was disclosed nor the CD wassupplied to the petitioners and even it was not revealed in the dismissal order whether the voice which has been relied upon by the State-respondents is that of the petitioners and the accused Anwar.
The Learned counsel further submitted that even if the State was of the opinion that the voice of conversation is of the petitioners, then it could have been proved by any Forensic expert. They would further submit that when the basic ground on which the dismissal orders were passed is on the telephone conversation tape, such action of State-Respondents cannot be allowed as recording of telephonic conversation offends Article 21 of the Constitution.
The Counsel placed reliance on People's Union for Civil Liberties (PUCL) V. Union of India AIR 1997 SC 568 and submitted that in the like nature of the cases in absence of compliance of valid procedure/guidelines, the action of respondents cannot be held statutory and the conversation so recorded cannot be used to dismiss the service as the statutory mandates were not followed. They further submitted that dispensing with the enquiry on the mere recording of conversation will not bring home the requirement.
Learned counsel for the petitioners further submitted that dispensing with the enquiry cannot be logically accepted for the reason that the petitioners were posted at Moudhapara Police station and if the circumstances warrant, they could have been transferred to other police station and thereafter enquiry could have been conducted.
The learned counsel for the State submitted that the conversation has been placed on record along-with CD. He submitted that the record would show that the petitioners were in contact with a notorious criminal against whom number of criminal cases stand registered against him. Therefore, it would not have been possible to get the evidence against him. Consequently the enquiry was dispensed with. He further submitted that the nature of conversation will prove the seriousness of the offence as the petitioners who were posted at Moudhapara Police station as Head constable and Constable and since they were involved in conversation with a criminal, in order to uphold the public safety, the enquiry was dispensed with.
Courts Observation & Judgment
The court observed that the “orders didn’t disclose the fact as to how the voices of the petitioners were identified and it was clarified as to whether proper assistance of any officer was taken to identify the voice of the petitioners or the criminal in question. The Court also noted that the compact disk was not sent for examination to any expert or to any Forensic Science Laboratory and that the telephones or the mobiles in which the voice of conversation was recorded were not produced in original.”
The Court also noted that the compact disk was not sent for examination to any expert or to any Forensic Science Laboratory and that the telephones or the mobiles in which the voice of conversation was recorded were not produced in original.
Noting that Section 65-B of the Evidence Act lays down certain procedure to be followed about the admissibility of the electronic record, the Court remarked, “ In the instant case, it appears that the procedure for admissibility of such Compact Disk (CD) as envisaged in section 65-B of the Evidence Act has not been followed. When a question comes to fore that whether any valid procedure or statutory mandate was followed to dispense with the departmental enquiry which proceeded on the premises of a telephonic recorded statement, the obvious answer would be in negative.”
To reach to a conclusion, the Court categorically observed that in PUCL Vs. Union of India AIR 1997 SC 568, the Supreme Court had issued certain directions/ guidelines for telephone tapping as otherwise, it had held that it would offend Articles 19(1)(a) & 21 of the Constitution of India.
The Court also remarked,
"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."
By disposing of the petition, the respondents were given the liberty to hold the departmental inquiry against the petitioners by giving them the proper opportunity of hearing and following the procedure of rules of natural justice and thereafter may pass appropriate orders.
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