Union Of India & Anr vs M.M.Sharma

Union of India and Anr. .... Appellants

Versus

M.M. Sharma ....Respondent

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. Delay condoned.

2. Leave granted.

3. The present appeal is directed against the judgment and

order dated 27.09.2010 whereby the Delhi High Court partly

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allowed the writ petition filed by the respondent herein by

issuing a direction to the appellants to pass a speaking order

by giving reasons for imposing the penalty of dismissal from

service in exercise of powers under Article 311(2)(c) of the

Constitution and not any other penalty.

4. In order to appreciate the contentions raised by the

parties hereto some basic facts leading to filing of the aforesaid

writ petition in the High Court must be stated.

5. The respondent was posted as First Secretary w.e.f.

02.07.2007 to 03.05.2008 in the Embassy of India, Beijing,

China. While on special assignment, the respondent came

under adverse notice and was found to be involved in an

unauthorized and undesirable liaison with foreign nationals of

the host country. The conduct of the respondent was enquired

into by the Intelligence Bureau (IB). The Director, upon

completion of the said inquiry forwarded a detailed report

including findings of the Inquiry Officer. The aforesaid report

was considered and it was felt that in view of the seriousness of

the case and the adverse implications on the security of the

State, it would not be expedient to hold the inquiry due to the

following reasons: -

Page 2 of 18 (i) The respondent was on special assignment and

entrusted with responsible duties of external intelligence.

Any formal inquiry would jeopardize security of India, as it

would reveal details of intelligence operation in the host

country.

(ii) For a proper disciplinary inquiry to be conducted,

witnesses would be required to be examined. In this case

witnesses can be either foreign nationals or officers

working under cover in Indian Embassy in China and

examination thereof would certainly jeopardize the

security of the State.

6. Consequently, the competent authority took a decision

that the services of the respondent should be dispensed with by

exercising powers under Clause (c) of Second Proviso to Article

311(2) of the Constitution of India. Consequent thereto an

order dated 22.12.2009 was issued intimating and stating that

the President is satisfied to invoke Clause (c) of Second Proviso

to Article 311(2) of the Constitution of India that in the interest

of the security of the State it is not expedient to hold the

inquiry in the case of the respondent. It was also mentioned in

the said order that the President is also satisfied that on the

basis of information available the activities of the respondent

are such as to warrant his dismissal from the service.

7. The respondent challenged the aforesaid order by filing an

Original Application before the Central Administrative Tribunal,

Principal Bench, New Delhi (hereinafter referred to as `the

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Tribunal') which was registered as OA No. 176 of 2009. In the

said Original Application contentions raised inter alia were that

the order dated 22.12.2008 passed in exercise of power under

Clause (c) of Second Proviso to Article 311(2) of the

Constitution of India should be set aside. The aforesaid

application was heard and the Tribunal passed an order on

10.12.2009 disposing of the said Original Application by

holding that the order does not reveal that there has been

application of mind with regard to the nature of punishment to

be awarded to the respondent. The Tribunal directed the

Government to re-consider whether the aforesaid penalty

awarded to the respondent could be substituted by any other

punishment.

8. Pursuant to the aforesaid order passed by the Tribunal

the matter was placed before the competent authority once

again and in compliance of the order of the Tribunal an order

was passed by the Cabinet Secretariat, Government of India on

03.06.2010, which reads as follows:

"WHEREAS Shri M.M. Sharma was dismissed from service

under the provisions of sub-clause (c) of the second proviso

to clause 2 of Article 311 of the Constitution vide order

No/2/2008-DO.II (A) 9Pt.I)-3643 dated 22.12.2008:

Page 4 of 18 AND WHEREAS, Shri M.M. Sharma filed an Original

Application No. 176/2009 in the Principal Bench of Central

Administrative Tribunal, New Delhi praying for setting

aside and quashing the said order of dismissal; dated

22.12.2008.

AND WHEREAS the Hon'ble Tribunal in their order dated

10.12.2009 in the said OA No. 176/2009 directed the

Government to consider whether the penalty of dismissal

could be substituted by `reduction in rank' or the ex-officer

could be granted any pensionary benefits.

AND WHEREAS, the Government, in pursuance of

observations of Hon'ble Tribunal re-considered the case of

dismissal of Shri M.M. Sharma.

NOW, THEREFORE, the President orders that it is not

possible either to substitute the penalty of Shri M.M.

Sharma from `dismissal' to `reduction in rank' or to grant

him any pensionary benefits.

(BY ORDER AND IN THE NAME OF THE PRESIDENT)

(K.B.S. KATOCH)

ADDITIONAL SECRETARY TO THE GOVT. OF INDIA"

9. The aforesaid order passed by the President came to be

challenged before the Tribunal by the respondent by filing an

Original Application which was registered as OA No. 2440 of

2010. The aforesaid application was taken up for hearing and

the same was disposed of by the Tribunal vide its Judgment

and Order dated 04.08.2010. By the aforesaid Judgment and

Order, the Tribunal dismissed the Original Application holding

that the matter called for no interference in the hands of the

Tribunal. While coming to the aforesaid conclusion the

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Tribunal hold that invocation of power under Article 311(2) (c) of

the Constitution of India cannot be faulted with because of the

sensitive nature of the issues involved, which have become final

and binding on the parties. It was also held that only question

that was required to be decided by the competent authority was

to re-consider the nature of penalty imposed on the

respondent.

10. Since the Tribunal held the appellants have re-considered

the question of punishment reiterating that it is not possible

either to substitute the penalty of the respondent from

`dismissal' to `reduction in rank' or to grant him any pensionary

benefits, therefore, the same indicates and establishes the

satisfaction for arriving at the decision of the competent

authority to maintain the penalty of dismissal.

11. The aforesaid order was challenged by the respondent

before the High Court of Delhi by filing a writ petition in which

the High Court partly allowed the writ petition holding that the

order which was passed by the competent authority on

03.06.2010 was not a reasoned order. The High Court

therefore issued a direction that the appellants must pass a

reasoned order showing its application of mind. The High

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Court set aside the order dated 04.08.2010 passed by the

Tribunal and directed the appellants to give reasons for levying

the penalty of dismissal from service and pass a fresh order.

The aforesaid Judgment and Order passed by the High Court is

under challenge in this appeal on which we heard the learned

counsel appearing for the parties and also scrutinised the

entire records.

12. Within the scheme of the Constitution of India, provisions

relating to public service may be found in Articles 309, 310 and

311. It is important to note that these provisions (namely

Articles 310 and 311) afford protection to public servants from

penalty in the nature of dismissal, removal, or reduction which

cannot be imposed without holding a proper inquiry or giving a

hearing. An explicit articulation of "protection" in Article 311 of

the Constitution itself gives an impression of complete

`protection' to the civil servants.

13. Article 311 provides for protection to public servant from

punitive action being taken against them by an authority

subordinate to one who appointed him, or without holding an

inquiry in accordance with law. Exceptions in Article 311 are

contained in second proviso in the nature of clauses (a), (b) &

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(c) which provide that the said Article shall not apply to

employees who have been punished for conviction in a criminal

case or where inquiry is not practicable to be held for reasons

to be recorded in writing or where the President or Governor as

the case may be is satisfied that such an order is required to be

passed without holding an enquiry in the interest of security of

the State.

14. In order to appreciate the ambit or scope of power to be

exercised under Article 311 of the Constitution of India it is to

be noticed that in India we apply the doctrine of `pleasure",

which is recognized under our constitution by way of Article

310 of the Constitution of India. Under the aforesaid provision,

all civil posts under the Government are held at the pleasure of

the Government under which they are held and are terminable

at its will. The aforesaid power is what the doctrine of pleasure

is, which was recognized in the United Kingdom and also

received the constitutional sanction under our Constitution in

the form of Article 310 of the Constitution of India. But in

India the same is subject to other provisions of the Constitution

which include the restrictions imposed by Article 310 (2) and

Article 311(1) and Article 311(2) . Therefore, under the Indian

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constitution dismissal of civil servants must comply with the

procedure laid down in Article 311, and Article 310(1) cannot

be invoked independently with the object of justifying a

contravention of Article 311(2). There is an exception provided

by way of incorporation of Article 311 (2) with sub-clauses (a),

(b) and (c). No such inquiry is required to be conducted for the

purposes of dismissal, removal or reduction in rank of persons

when the same relates to dismissal on the ground of conviction

or where it is not practicable to hold an inquiry for the reasons

to be recorded in writing by that authority empowered to

dismiss or remove a person or reduce him in rank or where it is

not possible to hold an enquiry in the interest of the security of

the State. These three exceptions are recognized for dispensing

with an inquiry, which is required to be conducted under

Article 311 of the Constitution of India when the authority takes

a decision for dismissal or removal or reduction in rank in

writing. In other words, although there is a pleasure doctrine,

however, the same cannot be said to be absolute and the same

is subject to the conditions that when a government servant is

to be dismissed or removed from service or he is reduced in

rank a departmental inquiry is required to be conducted to

enquire into his misconduct and only after holding such an

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inquiry and in the course of such inquiry if he is found guilty

then only a person can be removed or dismissed from service or

reduced in rank. However, such constitutional provision as set

out under Article 311 of the Constitution of India could also be

dispensed with under the exceptions provided in Article 311(2)

of the constitution where clause (a) relates to a case where

upon a conviction of a person by a criminal court on certain

charges he could be dismissed or removed from service or

reduced in rank without holding an inquiry. Similarly, under

clause (c) an inquiry to be held against the government

employee could be dispensed with if it is not possible to hold

such an inquiry in the interest of the security of the State.

Sub-clause (b) on the other hand provides that such an inquiry

could be dispensed with by the concerned authority, after

recording reasons, for which it is not practicable to hold an

inquiry. The aforesaid power is an absolute power of the

disciplinary authority who after following the procedure laid

down therein could resort to such extra ordinary power

provided it follows the pre-conditions laid down therein

meaningfully and effectively.

Page 10 of 18 15. It should also be pointed out at this stage that clause (b)

of the second proviso to Article 311 (2) of the Constitution of

India mandates that in case the disciplinary authority feels and

decides that it is not reasonably practical to hold an inquiry

against the delinquent officer the reasons for such satisfaction

must be recorded in writing before an action is taken. Clause

(c) of the second proviso to Article 311 (2) on the other hand

does not specifically prescribe for recording of such reasons for

the satisfaction but at the same time there must be records to

indicate that there are sufficient and cogent reasons for

dispensing with the enquiry in the interest of the security of the

State. Unless and until such satisfaction, based on reasonable

and cogent grounds is recorded it would not be possible for the

court or the Tribunal, where such legality of an order is

challenged, to ascertain as to whether such an order passed in

the interest of security of State is based on reasons and is not

arbitrary. If and when such an order is challenged in the court

of law the competent authority would have to satisfy the court

that the competent authority has sufficient materials on record

to dispense with the enquiry in the interest of the security of

the State.

Page 11 of 18 16. We have analyzed the facts of the present case and on

such analysis, we find that even in the first order passed by the

Tribunal on 10th December, 2009 itself it was clearly recorded

that it could be held from the records, as available, that there

essentially was no arbitrariness in the approach of the

Government of India while dealing with an officer who had by

his conduct showed that he was not reliable for holding

sensitive or superior positions and therefore invocation of

power under Article 311(2)(c) of the Constitution of India also

cannot be faulted because of the sensitive nature of the issues.

17. The aforesaid order passed by the Tribunal in the due

course has become final and binding as no challenge was made

as against the aforesaid observation by any of the parties before

any higher forum. The Tribunal, however, by the aforesaid

order issued a direction to the Government to consider as to

whether the penalty could be substituted by issuing a lesser

punishment.

18. In terms of the aforesaid order the competent authority

reconsidered the matter and maintained the order of

punishment awarded to the respondent holding that it is not

possible either to substitute the penalty of the respondent from

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dismissal to reduction in rank or to grant him any pensionary

benefit. The said order therefore indicates that the direction of

the Tribunal was duly complied with and an effective and

conscious decision was taken by the competent authority to

maintain the penalty of dismissal.

19. There are credible and substantial materials on record in

terms of clause (c) to second proviso to Article 311(2) of the

Constitution. The aforesaid action of invoking the extra

ordinary provisions like clause (c) to second proviso to Article

311(2) was also found to be justified by the Tribunal in the

earlier stage of litigation itself.

20. Despite the said fact the High Court held that the order

dated 04.08.2010 passed by the Tribunal not being a speaking

order showing application of mind cannot be upheld and

consequently the High Court passed the impugned order dated

27.09.2010 thereby setting aside the order passed by the

Tribunal with a direction to the appellants herein to pass a

fresh speaking order giving reasons for its decision. The said

findings of the High Court are being challenged in this appeal

contending inter alia that a conscious and informed decision

has been taken on the basis of materials on record to dismiss

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the respondent from the service and the reasons for inability to

hold an inquiry in the interest of the security of the State have

also been recorded although there is no such mandate to

record such reasons. The records indicate that there are

sufficient reasons and materials on record as to why the service

of the respondent was dispensed with in the interest of the

security of the State. We are also satisfied that the reasons

contained in the records establish that in the facts of this case

holding of an enquiry was rightly dispensed with in the interest

of security of the country. We must hasten to add that the

Tribunal had in the earlier round of litigation upheld the action

of the appellants in dispensing with the enquiry in the interest

of the security of the State. The said order of the Tribunal has

also become final and binding. Therefore, challenge in the

present round of litigation is whether the appellants are

justified in awarding the punishment of dismissal from service

on the respondent which also deprives him from getting any

pensionary benefit.

21. The original records were placed before us, which we have

perused. The allegations against the respondent are very

serious which could jeopardize the sovereignty and integrity of

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India. The records also disclose the highly objectionable

activities and conduct of the respondent which is unbecoming

of a responsible Government servant. The Inquiry Committee

took the decision of not disclosing the grounds for taking action

against the delinquent officer under clause (c) of the proviso to

Article 311(2) of the Constitution because disclosure of the

same or holding of an inquiry has the potential to jeopardize

national security and relations with a neighbouring country

and such disclosure could lead to gross embarrassment to the

Government of India. Intelligence Bureau has already

conducted an inquiry and findings of the inquiry officer were

based on the written statement of the suspected officer and

other officers; analysis of phone records; and recovery of

photographs from the laptop of the respondent. In that context

and in view of the reasons recorded it was concluded that the

allegation had far reaching effects and therefore it was decided

to dispense with holding of any inquiry in the matter and also

to dismiss him from service.

22. A very high level committee considered the entire record

and the allegations against the respondent and on the basis of

the materials available on record, the committee prima facie

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came to the conclusion that action could be taken for his

dismissal under clause (c) to second proviso to Article 311(2) of

the Constitution. The aforesaid recommendation is available

on record and the High Court could have called for such record

and therefrom satisfy itself that there are sufficient and cogent

reasons recorded for taking action under Article 311(2) (c) of

the Constitution and also for imposing the penalty for

dispensation of the service of the respondent by way of

dismissal from the service.

23. In our considered opinion, in the present case, charges

against the delinquent officer being very serious and also in

view of the fact that the respondent was working in a very

sensitive post, it cannot be said to be a case of disproportionate

punishment to the offence alleged. The reasons recorded in the

official file against the person for dismissing him from service

need not be incorporated in the impugned order passed.

24. The High Court while passing the impugned order was

fully and effectively aware of the reasons as to why the

requirement of holding an enquiry in accordance with law was

dispensed with. Being so situated, the High Court could have

examined and scrutinised the original records to ascertain for

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itself as to whether the order imposing the penalty of dismissal

of service is justified or not in the light of the allegations and

the reports of the fact finding enquiry. The power to be

exercised under clauses (a), (b) and (c) being special and

extraordinary powers conferred by the Constitution, there was

no obligation on the part of the disciplinary authority to

communicate the reasons for imposing the penalty of dismissal

and not any other penalty. For taking action in due discharge

of its responsibility for exercising powers under clause (a) or (b)

or (c) it is nowhere provided that the disciplinary authority

must provide the reasons indicating application of mind for

awarding punishment of dismissal. While no reason for arriving

at the satisfaction of the President or the Governor, as the case

may be, to dispense with the enquiry in the interest of the

security of the State is required to be disclosed in the order, we

cannot hold that, in such a situation, the impugned order

passed against the respondent should mandatorily disclose the

reasons for taking action of dismissal of his service and not any

other penalty.

25. If in terms of the mandate of the Constitution, the

communication of the charge and holding of an enquiry could

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be dispensed with, in view of the interest involving security of

the State, there is equally for the same reasons no necessity of

communicating the reasons for arriving at the satisfaction as to

why the extreme penalty of dismissal is imposed on the

delinquent officer. The High Court was, therefore, not justified

in passing the impugned order.

26. For the aforesaid reasons, we hold that the order and

direction passed by the High Court cannot be sustained.

Consequently, we set aside the same and restore the order

dated 04.08.2010 passed by the Central Administrative

Tribunal, Principle Bench at New Delhi in OA No. 2440 of 2010.

27. The present appeal is accordingly allowed to the aforesaid

extent leaving the parties to bear their own costs.

.............................................J

[Dr. Mukundakam Sharma]

.............................................J

[Anil R. Dave]

New Delhi,

March 30, 2011.

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