Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Date of decision: 10 December, 2020.
+ W.P.(C) 9092/2020 & CM No.29341/2020 (for stay)
BANKE RAM ..... Petitioner
Through: Mr. Milind P. Singh, Adv.
Versus
GOVT. OF INDIA & ANR. ..... Respondents
Through: Mr. Rahul Sharma, Mr. Siddharth
Khatana and Mr. C.K. Bhatt, Advs.
Mr. Ankur Chhibber, Adv./Amicus
Curiae.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
[VIA VIDEO CONFERENCING]
RAJIV SAHAI ENDLAW, J.
1. The petitioner, an Inspector in the respondents Central Industrial
Security Force (CISF), has filed this petition, (i) impugning the order dated
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20 August, 2020 of the Director General of respondents CISF, directing the
Enquiry Officer to take ‘sample voice’ of the petitioner to the concerned
State Forensic Laboratory; and, (ii) seeking directions to the Director
General of respondents CISF, to complete its departmental enquiry against
the petitioner, in a time bound manner, before the date of superannuation of
the petitioner i.e. October, 2021.
W.P.(C) 9092/2020 Page 1 of 12
2. The averments in the petition are vague and the petition is poorly
drafted and the facts are incomprehensible therefrom. However, on perusal
of the documents annexed to the petition, it transpires that a preliminary
enquiry was conducted against the petitioner and on the basis of findings
thereof, disciplinary proceedings under Rule 36 of the Rules aforesaid were
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initiated. The petitioner was served with a Memorandum dated 3 August,
2019 by the Commandant of respondents CISF, informing the petitioner that
an enquiry under Rule 36 of Central Industrial Security Force Rules, 2001
was proposed to be held against the petitioner. The substance of the
imputation of misconduct or misbehaviour in respect of which the enquiry
was proposed to be held was set out in the enclosed statement of articles of
charge and the petitioner was directed to submit written statement of his
defence and to state, whether he desired to be heard in person. The
petitioner, vide the said Memorandum was also informed that an enquiry
will be held only in respect of those charges as were not admitted. The
statement of article of charge enclosed to the aforesaid Memorandum was as
under:
"That, No.884110020 Insp/Exe Bankey Ram of CISF Unit
RAPS/HWP Kota was on deputation with NCB as Intelligence
Officer NCB (Delhi Zonal Unit) wef. 04.07.2013 and was
repatriated on 03.07.2018 after completion of his deputation.
During follow up action in NCB Delhi Zonal Unit Crime
No.07/2018, Insp/Exe Bankey Ram of CISF Unit RAPS Kota
was found to have indulged in corrupt activities in a particular
Narcotics case affected by the zone. He has failed to maintain
integrity and exhibited gross negligence, dereliction of duty,
gross indiscipline and absolute lackadaisical approach towards
duty. Thus he acted in a manner unbecoming of a Government
servant violating the provision of Rule 3(1)(i),(ii) and (iii) of
CCS (Conduct) Rule, 1964. Hence the charge."
W.P.(C) 9092/2020 Page 2 of 12
The statement of imputations of misconduct or misbehaviour in
support of the article of charge aforesaid, the list of documents and the list
of witnesses was also enclosed to the Memorandum.
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3. The impugned order dated 20 August, 2020 records, (i) that the
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petitioner submitted his written reply dated 10 September, 2019 to the
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Charge/Memorandum dated 3 September, 2019, denying the charges
framed against him; (ii) accordingly, the Enquiry Officer and the Presenting
Officer were appointed; (iii) that the Enquiry Officer conducted the enquiry
and submitted the enquiry report to the Disciplinary Authority, not
approving the charges leveled against the petitioner; (iv) that the
Disciplinary Authority found variance in the statements of some of the
prosecution witnesses (PWs) who deposed in the preliminary enquiry, vis-à-
vis the statements they deposed in the departmental enquiry; (v) that while
PW-1, 2 & 3, during the conduct of preliminary enquiry had stated that in
the suspicious conversation, voice of the other person seemed to be that of
the petitioner, they, in the departmental enquiry stated that they could not
clearly say, whether the voice in the conversation was of the petitioner or
not; (vi) that the petitioner did not appear inspite of repeated opportunities
and appeared to be not interested in recording of his statement and was
evading the enquiry; and, (vii) that the Enquiry Officer, despite variation in
the statements of the witnesses during the preliminary hearing and during
the departmental enquiry and other inconsistencies, had not analyzed the
same by sending the Compact Disk (CD) recording the telephonic
conversation to the Forensic Laboratory, to obtain an expert opinion.
Therefore, in exercise of powers conferred in the Disciplinary Authority, the
W.P.(C) 9092/2020 Page 3 of 12
case was remitted to the Enquiry Officer with a direction to send the CD to
the concerned State Forensic Laboratory for their opinion before finalizing
the case, along with the sample voice of the petitioner and the Enquiry
Officer was directed to submit fresh enquiry report, after analyzing the
report of the State Forensic Laboratory.
4. This petition has been filed, contending (a) that the Director General,
CISF in directing the Enquiry Officer to take the sample voice of the
petitioner, had acted beyond his jurisdiction and against the provisions of the
Constitution of India, particularly Article 20(3) whereby "no person accused
of any offence shall be compelled to be a witness against himself"; (b) that
the said act of the Director General, CISF was also against the Central
Industrial Security Force Act, 1968 and the CISF Rules; (c) that no First
Information Report had been registered/pending against the petitioner; (d)
that the departmental enquiry had also exonerated the petitioner from all the
charges; (e) that the preliminary enquiry had also not found anything
adverse to the petitioner; (f) that the direction of the Director General, CISF
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was contrary to the Clarification/Notification dated 8 January, 2015 issued
by the Ministry of Home Affairs (MHA) and the relevant extract whereof is
as under:
S.N. Issue raised Clarification:
2. "Whether the intercepts can
"The intercepts cannot
be shared for
departmental actions /
enquiry proceedings
be shared for initiation of
department action/ enquiry /
proceedings against the erring
officers to prove the charge of
for misconduct or for
violation of CCS
W.P.(C) 9092/2020 Page 4 of 12
misconduct leveled against
them as the primary evidence
available are only the
intercepted materials"
(Conduct) Rules".
and, (g) that the CISF Act and the CISF Rules do not permit sample
voice to be taken.
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5. The petition came up before this Court first on 18 November, 2020,
when with respect to the contentions aforesaid contained in the petition, it
was enquired from the counsel for the petitioner, whether not it was open to
the Director General, CISF, as Disciplinary Authority, to, if not agreeing
with the findings returned by the Enquiry Officer, to remit the case to the
Enquiry Officer and whether not the Disciplinary Authority was not bound
by the findings/observations of the preliminary enquiry and the departmental
enquiry.
6. The counsel for the petitioner agreed and confined the challenge to,
the direction by the Director General CISF as the Disciplinary Authority to
the Enquiry Officer, to collect the sample voice of the petitioner and to send
it to Central Forensic Science Laboratory (CFSL) for comparison with the
voice on the CD of the recorded telephonic conversation amounted to the
petitioner being compelled to self-incriminate.
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7. On 18 November, 2020, inter alia the following order was passed:
" 6. We have enquired from the counsel for the petitioner,
how Article 20(3) of the Constitution of India will apply in a
departmental enquiry which is only concerned with a finding of
W.P.(C) 9092/2020 Page 5 of 12
disciplinary misconduct by an employee. In disciplinary
proceedings, the charged employee is not accused of any
offence. In our view, the protection of Article 20(3) of the
Constitution of India is only in proceedings relating to
conviction. Attention of the counsel is invited to Selvi Vs. State
of Karnataka (2010) 7 SCC 263 and to Duncan Agro
Industries Ltd. Vs. Union of India MANU/DE/0062/1988.
7. The counsel for the petitioner has drawn our attention to
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Annexure P-2, being order dated 8 January, 2015 issued by
the respondent no.1 and states that the direction of the Inquiry
Officer is contrary to the guidelines of the respondent no.1
Ministry of Home Affairs.
8. On perusal of Annexure P-2, we are unable to find any
rule therein with respect to the direction impugned.
9. The counsel for the petitioner has next contended that the
Inquiry Officer had found no charge to have been proved
against the petitioner.
10. Even if that be so, the Disciplinary Authority can always
pass any order deemed appropriate, as has been done in the
present case.
11. It is deemed appropriate to give time to the counsel for
the petitioner to prepare.
12. The counsel for the petitioner to, today itself,
electronically transmit a copy of the petition with all annexures
to Mr. Siddharth Khatana, counsel for the respondents, who
may also prepare on the aforesaid lines.
13. It is also deemed appropriate to appoint an Amicus
Curie. Mr. Ankur Chhibber, Advocate has graciously consented
to act as Amicus Curie in this case. Copy of the petition with
annexures along with this order be also transmitted by the
Court Master to the Amicus Curie.
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14. List on 10 December, 2020."
W.P.(C) 9092/2020 Page 6 of 12
8. The counsel for the petitioner has today argued, (i) that the direction
of the Disciplinary Authority to the Enquiry Officer, to collect the voice
sample of the petitioner, amounts to coercing the petitioner to self-
incriminate himself and is violative of Article 20(3) of the Constitution of
India; (ii) that there is no provision in the CISF Act or the CISF Rules, for
the course of action followed by the Director General, CISF as the
Disciplinary Authority; and, (iii) that once the MHA, vide Notification,
relevant paragraph whereof is reproduced in the petition (as reproduced
above) has clarified that intercepts cannot be shared for departmental
actions/enquiries/proceedings for misconduct or for violation of CCS
(Conduct) Rules, the telephonic conversation cannot form the basis of the
departmental enquiry underway against the petitioner.
9. The learned Amicus Curiae has emailed to us, the following
judgments:
(A) Raja Narayanlal Bansilal Vs. Maneck Phiroz Mistry AIR
1961 SC 29 and S.A. Venkataraman Vs. The Union of India AIR
1954 SC 375. The question for consideration in the former was,
whether Section 240 of the Companies Act, 1913 which empowered
the Registrar of Companies to issue notices by which the appellant
therein was called upon to give evidence and to produce documents
pertaining to an investigation relating to the affairs of the Company he
was managing, offends against the fundamental constitutional right
guaranteed by Article 20(3) of the Constitution of India. It was held,
(i) that the argument was no doubt attractive; (ii) however the
construction of Article 20 in general and Article 20(2) and (3) in
W.P.(C) 9092/2020 Page 7 of 12
particular, had been the subject matter of some decisions of the
Supreme Court and the argument had to be decided in the light of the
said decisions; (iii) in Maqbool Hussain Vs. State of Bombay AIR
1953 SC 325, it was held that the words "prosecuted and punished"
used in Article 20(2) indicate that the proceedings contemplated
therein, were of the nature of criminal proceedings, before a Court of
Law or a Judicial Tribunal and ‘Prosecution’ in this context would
mean an initiation or starting of proceedings of a criminal nature
before a Court of Law or in a Judicial Tribunal, in accordance with the
procedure prescribed in the statute, which creates the offence and
regulates the procedure and that the proceedings initiated by the
Customs Authorities did not amount to prosecution of a party; (iv)
reference was made to S.A. Venkataraman supra, where an enquiry
had been made against the appellant therein under the Public Servants
(Inquiries) Act, 1850 and in pursuance whereto the appellant therein
was dismissed and subsequent thereto, a charge sheet was filed against
him of offence under Sections 161/165 of the Indian Penal Code, 1860
and Section 5(2) of the Prevention of Corruption Act, 1947 and it was
held that proceedings taken under the Public Servants (Inquiries) Act
did not amount to a prosecution; and, (v) that with respect to Article
20(3) also it had been held in M.P. Sharma Vs. Satish Chandra,
District Magistrate, Delhi AIR 1954 SC 300 that the constitutional
guarantees under Article 20(3) of the Constitution are available to a
person against whom a formal accusation relating to commission of an
offence has been leveled, which in the normal course may result in
prosecution; that one of the essential conditions for invoking the
W.P.(C) 9092/2020 Page 8 of 12
constitutional guarantee enshrined in Article 20(3) is, that a formal
accusation relating to the commission of an offence which would
normally lead to his prosecution, must have been leveled against the
party who has been compelled to give evidence against himself.
(B) D.S. Jadhav Vs. The Hon'ble the Chief Justice, Bombay High
Court, Bombay 1994 SCC OnLine Bom 644 (DB), where an inquiry
under Article 235 of the Constitution of India was held against a Civil
Judge cum Judicial Magistrate and report of which was accepted by
the High Court, which dismissed the Judicial Officer. Challenging the
said dismissal, it was the contention of the petitioner therein that the
adverse inference drawn, from non-appearance of the petitioner, in the
enquiry, was erroneous as much as the petitioner was not bound to file
his written statement or examine himself as a witness during the
course of disciplinary enquiry, in view of the provisions contained in
Article 20(3) of the Constitution of India. It was held, (i) that there
was no merit in the said plea; (ii) that the factual foundation
concerning the said plea was non-existent; (iii) that no one compelled
the petitioner to be a witness against himself; and, (iv) that Article
20(3) of the Constitution is applicable only to criminal proceedings
and has no application to civil proceedings or departmental enquiries.
(C) Oriental Rubber Industries Private Limited Vs. Competition
Commission of India 2016 SCC OnLine Del 2438, where one of us
(Rajiv Sahai Endlaw, J.) sitting singly, also held that since the person
summoned was not an accused, Article 20(3) had no application and
W.P.(C) 9092/2020 Page 9 of 12
there was no constitutional right to claim comforts to which the person
is used to, during investigation.
(D) The State of Bombay Vs. Kathi Kalu Oghad AIR 1961 SC
1808, where a bench of eleven Judges of the Supreme Court held, (i)
that giving thumb impressions or impressions of foot or palm or
fingers or specimen writings or showing parts of the body by way of
identification, are not included in the expression "to be a witness"; (ii)
that "to be a witness" means imparting knowledge in respect of
relevant facts by an oral statement or a statement in writing, made or
given in Court or otherwise; (iii) that "to be a witness" means bearing
testimony in Court or out of Court, by a person accused of an offence,
orally or in writing; and, (iv) that to bring the statement in question
within the prohibition of Article 20(3), the person accused must have
stood in the character of an accused person at the time he made the
statement; it is not enough that he should become an accused, any
time after the statement has been made.
(E) Darshan Singh Vs. The District and Sessions Judge 2011 SCC
OnLine P&H 7819 (DB), holding that giving voice sample was not
violative of Article 20(3) of the Constitution.
10. In view of the judgments aforesaid of the Supreme Court and of the
other High Courts with which we fully concur, the argument of the counsel
for the petitioner, that the direction by the Director General, CISF in the
present case to the Enquiry Officer, to collect the voice sample of the
petitioner for comparison with the voice on the CD, is violative of Article
20(3) of the Constitution of India, does not survive.
W.P.(C) 9092/2020 Page 10 of 12
11. The learned Amicus Curiae has also contended that the reliance
placed by the petitioner on the clarification rendered by the MHA vide
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Notification dated 8 January, 2015 is also misconceived, inasmuch as the
present was not a case of interception at all. It was explained that
interception means, by intelligence agencies and which is not the case here.
12. The learned Amicus Curiae has also drawn our attention to Rule 36
titled "Procedure for Imposing Major Penalties" of the CISF Rules and sub-
rule 21 whereof empowers the Disciplinary Authority to, after receipt of
report of the Enquiry Officer, direct further evidence to be taken.
13. The counsel for the respondents CISF states that the learned Amicus
Curiae has done his job and he has nothing else to contribute.
14. As far as the contention of the counsel for the petitioner, that under
the Directives of MHA, on the basis of interceptions, no disciplinary
proceedings can be initiated, is concerned, we may notice that the petition
does not challenge the initiation of the disciplinary proceedings against the
petitioner and only challenges the order directing voice sample of the
petitioner to be taken. There is also no clarity that the telephonic
conversation attributed to the petitioner, was intercepted, within the meaning
of Directives of the MHA. The complete Directives has also not been placed
before us. As aforesaid, there is no pleading also in this respect. For all the
said reasons, we leave the said question open and do not deem it apposite to
decide the same in this judgment, on the basis of vague pleas and without
any material on record.
W.P.(C) 9092/2020 Page 11 of 12
15. Thus, the only ground on which the challenge was made in this
petition, does not survive.
16. The petition is dismissed.
17. We express our gratitude to Mr. Ankur Chhibber, Advocate for,
sacrificing his valuable time and for rendering able assistance to us, saving
us the time to research on the subject matter.
RAJIV SAHAI ENDLAW, J.
ASHA MENON, J.
DECEMBER 10, 2020
‘bs’
W.P.(C) 9092/2020 Page 12 of 12