A.K. Kaul
& Anr Vs. Union of India & Anr [1995] INSC 225
(19 April 1995)
Agrawal, S.C. (J) Agrawal, S.C. (J) Faizan Uddin (J) S.C. Agrawal,
J.:
CITATION:
1995 AIR 1403 1995 SCC (4) 73 JT 1995 (4) 1 1995 SCALE (2)755
ACT:
HEAD NOTE:
1.
Leave granted.
2. The
appellants were employed as Deputy Central Intelligence Officers in the
Intelligence Bureau in the Ministry of Home Affairs of the Government of India.
On July 23, 1979, the employees of the Intelligence
Bureau formed an Association called "the Intelligence Bureau employees
Association" (IBEA) for the purpose of ventilating their grievances.
Appellants, A.K.Kaul and Verghese Joseph, were elected as the General
Secretaries of IBEA and appellant, B.B. Raval, was elected as the President. On
May 3, 1980, the Joint Director of the
Intelligence Bureau issued, a Circular Memorandum declaring that the formation
of the IBEA was in violation of the Civil Services (Conduct) Rules and that
those who take part in the activities of the IBEA will attract disciplinary
action. Writ petitions (Civil) Nos. 1117-1119 were filed in this Court
challenging the said circular. This Court, on July 21, 1980, issued an order for issue of rule nisi on the said writ
petitions and also passed an interim order directing that during the pendency
of the 7 writ petitions in this Court no disciplinary action shall be taken
against any member of the IBEA for reasons mentioned in the circular. On December 26, 1980, orders were passed dismissing the
appellants from service. One such order regarding the dismissal of appellant,
A.K. Kaul, is in the following terms :
"Shri
A.K. Kaul, Deputy Central Intelligence Officer, Intelligence Bureau, New Delhi.
Whereas
the President is satisfied under sub-clause (c) of the proviso to clause(2) of
Article 311 of the Constitution that in the interest of the security of the
State it is not expedient to hold an inquiry in the case of Shri A. K. Kaul.
And
whereas the President is satisfied that on the basis of the information
available, the activities of Shri A.K. Kaul are such as to warrant his
dismissal from service.
Accordingly,
the President hereby dismisses Shri A.K. Kaul from service with immediate
effect.
(By
order and in the name of President Sd/- (R. Mahadevan) Under Secretary to the
Govt. of India Ministry of Home Affairs."
3. The
orders for dismissal of appellants, Verghese Joseph and B.B. Raval are in the
same terms. The appellants filed separate writ petitions (Nos. 205-207/81 1) in
this Court under Article 32 of the Constitution to challenge the said orders of
dismissal. After the constitution of the Central Administrative Tribunal under
the Administrative Tribunals Act, 1985, (hereinafter referred to as 'the
Tribunal') the said writ petitions were transferred to the Tribunal for
adjudication and they were registered as T.A. Nos. 1,2 and 3 of 1992.
4.
Before the Tribunal the case put for-ward by the appellants was that they have
been picked and chosen for punitive action for dismissal from service for the
reason that they were important members of the IBEA, being office bearers as
General Secretaries and the President, and that the real motive to pass the
orders of dismissal was to penalise them for the active part they had taken in
ventilating the grievances of the employees through the IBEA. The appellants
also pleaded that they had an excellent record of service and that they had not
conducted themselves in such manner as to warrant their dismissal from service.
It was submitted that they were recipients of commendation certificates, appreciation
letters and cash awards from time to time. It was also stated in the
applications that they had not acted contrary to the interest of national
security at any time. The said applications were contested by the respondents
who pleaded that the orders of dismissal had been passed by the President on
being satisfied on the basis of the material available that the activities of
the appellants were such as to warrant their dismissal from service by
dispensing with the requirements of Article 311(2) of the Constitution in the
interest of security of the State. It was also pleaded on behalf of the
respondents that the details of the material on the basis of which the
satisfaction had been reached cannot be disclosed without detriment to public
interest. It was denied that the authorities of the Intelligence Bureau have a
hostile attitude towards IBEA and it was stated that punitive action was taken
on merits of 8 each case and not because of the participation of the appellants
in the activities of the IBEA. During the pendency of the applications before
the. Tribunal the ap- pellants moved Misc. Petitions Nos. 1897/ 92 in T.A. Nos.
1 and 2/92 and Miscellaneous Petition No. 732/92 in T.A.- No. 3/92 whereby they
prayed for directions to the respondents to produce the records specified in
the said applications for inspection of the Tribunal and/or by the appellants
and their counsel. The said applications were opposed by the respondents who
claimed privilege invoking Article 74(2) of the Constitution and Sections 123
and 124 of the Evidence Act and for that purpose affidavit of Mr. Madhav Godbole,
Secretary to the Government of India, Min- istry of Home Affairs, New Delhi (the Head of the Department) was
filed before the Tribunal. Without prejudice to the said claim of privilege,
the respondents had, however, stated that they had no objection whatsoever to
the said documents relating to the dismissal of the appellants and those
portions of documents that relate to the said dismissal orders being produced
for perusal of the Tribunal in order to satisfy it that the claim of privilege
against disclosure of the said official records is bona fide and genuine.
5. By
judgment dated December
18, 1993 the Tribunal,
after perusing the records that were placed for perusal of the Tribunal, upheld
the claim of privilege and dismissed ,the applications filed by the appellants
for inspection and production of the documents. On the basis of the said
records the Tribunal has further found that the material considered by the
President relate to the activities of the appellants which would prejudicially
affect the security of the State and that the materials relied upon or the
satisfaction of the President have nothing to do with the appellants'
activities in relation to the IBEA. The Tribunal has held that there is no
substance in the case of the appellants that the orders of the dismissal were
not bona fide and they have been passed to victimise the appellants for
promoting and participating in the activities of the IBEA. The Tribunal was of
the view that the satisfaction had been arrived at after application of mind to
the relevant materials without taking into consideration irrelevant factors and
that the impugned orders of dismissal from service dated December 26, 1980 arc
not liable for interference. The Tribunal, therefore, dismissed the
applications of the appellants. Hence these appeals.
6.On
behalf of the appellants it has been urged that the exercise of power under
clause (c) of the second proviso to Article 3 11(2) of the Constitution is
subject to judicial review and that an order passed under the said provisions
is open to challenge before the courts on the ground that the satisfaction of
the President or the Governor is vitiated by malafides or is based on
considerations which have no relevance to the interest of the security of the
State. In this connection, Shri Sorabjee has submitted that in a case where the
employee assails the action taken against him under Article 311(2)(c) it is
obligatory on the part of the concerned Government to place before the court
the relevant material on the basis of which the action was taken and such
material can only be withheld from the court in cases where the claim of
privilege is found to be justified under the provisions of Sections 123 and 124
of the Evidence Act.
Shri Sorabjee
has urged that the said claim of privilege does not extend to the disclosure of
the nature of 9 the activities on the basis of which the alleged satisfaction
has been arrived at and the privilege can only relate to the material which has
been relied upon in support of the said activities.
7. The
learned Additional Solicitor General, appearing for the respondents, has,
however, submitted that an order under clause (c) of second proviso to Article
311(2) of the Constitution is to be passed by the President or the Governor on
the basis of his subjective satisfaction. The material which forms the basis
for arriving at the said satisfaction is not required to be disclosed both in
view of Article 74(2) as well as under Sections 123 and 124 of the Evidence
Act. The learned Additional Solicitor General has, in this context, pointed out
that while under clause (b) of the second proviso to Article 311(2) the
competent authority is required to record in writing the reason for its satis-
faction that it is not reasonably practicable to hold an inquiry, there is no
such requirement for recording the reason in clause (c) and, therefore, there
is no requirement to disclose the reasons for arriving at the satisfaction for
taking action under clause (c) of second proviso to Article 311(2).
8.
Article 311(2), as amended by the Constitution (Fifteenth Amendment) Act, 1963,
provides as follows :
"(2)
No such persons aforesaid shall be dismissed or removed or reduced in rank
except after an inquiry in which he has been informed of the charges against
him and given a reasonable opportunity of being heard in respect of those
charges :
Provided
that where it is proposed after such inquiry to impose upon him any such
penalty, such penalty may be imposed on the basis of the evidence adduced
during such inquiry and it shall not be necessary to give such person any
opportunity of making representation on the penalty proposed Provided further
that this clause shall not apply - (a) where a person is dismissed or removed
or reduced in rank on the ground of conduct which has led to his conviction on
a criminal charge; or (b) when the authority empowered to dismiss or remove a
person or to reduce him in rank is satisfied that for some reason, to be recorded
by that authority in writing it is not practi- cable to hold such inquiry; or
(c) where the President or Governor, as the case may be, is satisfied that in
the interest of the security of the State it is not expedient to hold such
inquiry. "
9. The
provision of the second proviso came up for consideration before the
Constitution Bench of this Court in Union of India & Anr. v. Tulsiram Patel
& Ors., 1985 Supp.
(2)
SCR 13 1, Madon, J., speaking for the majority, has observed that clause (2) of
Article 311 gives a constitu- tional mandate to the principles of natural
justice and audi alteram pattern rule by providing that a person employed in a
civil capacity under the Union or a State shall not be dismissed or removed
from service or reduced in rank until after an inquiry in which he has been
informed of the charges against him and has been given a reasonable opportunity
of being heard in respect of those charges and that this safeguard provided for
a government, servant by 10 clause (2) of Article 311(2) is, however, taken
away when the second proviso to that clause becomes applicable. (Page 202). The
Court has also pointed out that the paramount thing to bear in mind is that the
second proviso will apply only where the conduct of a government servant is
such as he deserves the punishment of dismissal, removal or reduction in rank
and that before denying a government servant his constitutional right to an
inquiry, the first consideration would be whether the conduct of the concerned
government servant is such as justifies the penalty of dismissal, removal or
reduction in rank and once that conclusion is reached and the condition
specified in the relevant clause of the second proviso is satisfied, that
proviso becomes applicable and the government servant is not entitled to an
inquiry. (Pages 204-205). While dealing with clause (c) of the second proviso
to Article 311(2) it has been stated :
"The
question under clause (c), however, is not whether the security of the State
has been affected or not, for the expression used in clause (c) is "in the
interest of the security of the State". The interest of the security of
the state may be affected by actual acts or even the likelihood of such acts
taking place.
Further,
what is required under clause (c) is not the satisfaction of the President or
the Governor, as the case may be, that the interest of the security of the
State is or will be affected but his satisfaction that in the interest of the
security of the State, it is not expedient to hold an inquiry as contemplated
by Article 311(2). The sat- isfaction of the President or Governor must,
therefore, be with respect to the expediency or inexpediency of holding an
inquiry in the interest of the security of the State. " (p.
277)
"The satisfaction so reached by the President or the Governor must
necessarily be a subjective satisfaction. Expediency involves matters of
policy. Satisfaction may be arrived at as a result of secret information
received by the Government about the brewing danger to the interest or the
security of the State and like matters. There may be other factors which may be
required to be considered, weighed and balanced in order to reach the requisite
satisfaction whether holding an inquiry would be expedient or not.
If the
requisite satisfaction has been reached as a result of secret information
received by the Government, making, known such information may very often
result in disclosure of the source of such information. Once known, the
particular source from which the information was received would no more be
available to the Government. The reasons for the satisfaction reached by the
President or the Governor under clause (c) cannot, therefore, be required to be
recorded in the order of dismissal, removal or reduction in rank nor can they be
made public." (p. 278) 10.The learned Judge did not consider it necessary
to deal with the contention that the power of judicial review is not excluded
where the satisfaction of the President or the Governor has been reached mala
fide or is based on wholly extraneous or irrelevant grounds and that in such a
case, in law there would be no satisfaction of the President or the Governor at
all for the reason that in the matters under consideration before this court
all the materials, including the advice tendered by the Council of Ministers,
had been produced and they clearly showed that the satisfaction of the Governor
was neither reached malafide nor was it based on any extraneous or irrelevant
ground. (Page 279). In the light of the provisions contained in Article 74(2)
and Article 163(3) it was submitted before 11 the Court that leaving aside the
advice given by the Ministers to the President or the Governor, the Government
is bound to disclose at least the materials upon which the advice of Council of
Ministers was based so that the court can examine whether the satisfaction of
the President or the Governor, as the case may be, was arrived at mala fide or
is based on wholly extraneous or irrelevant grounds so that such satisfaction
would in law amount to no satisfaction at all and that if the Government does
not voluntarily disclose such materials it can be compelled by the Court to do
so.
Dealing
with the said submission it was observed :
"Whether
this should be done or not would depend upon whether the documents in question
fall within the class of privileged documents and whether in respect of them
privilege has been properly claimed or not. It is unnecessary to examine this
question any further because in the cases under clause (c) before us though at first
privilege was claimed, at the hearing privilege was waived and the materials as
also the advice given by the Ministers to the Governor of Madhya Pradesh who
has passed the impugned orders in those cases were disclosed." (p. 280)
11.It would thus appear that in Tulsiram Patel (supra) though the question
whether the satisfaction of the President or the Governor under Article 311(2)
is amenable to judicial review and the Government can be required to disclose
the materials upon which the advice of the Council of Ministers was based so as
to enable the court to exercise the power of judicial review has been left
open, the Court, after considering the said material, has recorded the find- ing
that the satisfaction of the Governor was neither recorded malafide nor was it
based on any extraneous or irrelevant ground.
12.It
is, therefore, necessary to deal with this question in the instant case., We
may, in this context, point out that a distinction has to be made between
judicial review and justiciability of a particular action. In a written
constitution the powers of the various organs of the State,are limited by the
provisions of the Constitution.
The
extent of those limitations on the powers has to be determined on an
interpretation of the relevant provisions of the Constitution. Since the task
of interpreting the provisions of the Constitution is entrusted to the
Judiciary, it is vested with the power to test the validity of an action of
every authority functioning under the Constitution on the touch stone of the
constitution in order to ensure that the authority exercising the power
conferred by the constitution does not transgress the limitations placed by the
Constitutions on exercise of that power. This power of judicial review is,
therefore, implicit in a written constitution and unless expressly excluded by
a provision of the Constitution, the power of judicial review is available in
respect of exercise of powers under any of the provisions of the Constitution. Justiciability
relates to a particular field falling within the purview of the power of
judicial review. On account of want of judicially manageable standards, there
may be matters which are not susceptible to the judicial process. In other
words, during the course of exercise of the power of judicial review it may be
found that there are certain aspects of the exercise of that power which are
not susceptible to judicial process on account of want of judicially manageable
standards and are, therefore, not justiciable.
13. In
the Slate of Rajasthan & Ors. v. 12 Union of India Etc. Etc., (1978) 1 SCR
1, one of the questions failing for consideration was whether satisfaction of
the President in the matter of exercise of the power to make a Proclamation
conferred under Article 356(1) of the Constitution is amenable to judicial
review. At the relevant time when the impugned Proclamations were made there
was an express provision in clause (5) of Article 356 which prescribed that
"the satisfaction of the President mentioned in clause (1) shall be final
and conclusive and shall not be questioned in any Court on any ground." In
spite of such an express provision P.N. Bhagwati J. (as the learned Chief
Justice then was) speaking for himself and A.C. Gupta J., has held that
"if the satisfaction is mala fides or is based on wholly extraneous or
irrelevant grounds, the Court would have the jurisdiction to examine it,
because in that case there would be no satisfaction of the President in regard
to the matter which he is required to be satisfied." (p.82). Other learned
Judges, with some variance, have adopted a similar approach. Beg CJ. has held
that if it is revealed "that a constitutionally or legally prohibited or
extraneous or collateral purpose is sought to be achieved by a proclamation
under Article 356 of the Constitution, this Court will not shirk its duty to
act in the manner in which the law may then oblige it to act." (p.46). Chandrachud
J. (as the learned Chief Justice then was) has observed that if reasons given
are wholly extrane- ous to the formation of the satisfaction, the Proclamation
would be open to the attack that it is vitiated by legal mala fides."
(p.60). Goswami J. has held that the Court "would not refuse to consider
when there may be sufficient materials to establish that the Proclamation under
Article 356(1) is tainted with mala fides."(p.92).Untwalia J. has said
that the Court is not powerless to interfere with an order that is ultra vires,
wholly illegal or passed mala fide. (p. 95). Fazal Ali J. has held that
"on the reasons given by the President in his order if the Courts find
that they are absolutely extraneous and irrelevant and based on personal and
illegal considerations the Courts are not powerless to strike down the order on
the ground of mala fide if proved." (p. 120).
14.
Clause (5) of Article 356 was deleted by the Constitution (Forty Fourth
Amendment) Act, 1978. In S.R. Bommai (supra) Sawant J. after noticing the
observations in A.K. Roy v. Union of India 1982 (2) SCR 272, has observed that
after deletion of clause (5) the judicial review of the Proclamation issued
under Article 356 has become wider than indicated in the State of Rajasthan
(supra). Similarly, Jeevan Reddy J. has said : "Surely the deletion of
clause (5) has not restricted the scope of judicial review.
Indeed,
it has removed the cloud cast on the said power.
The
Court should, if anything, be more inclined to examine the constitutionality of
the Proclamation after such deletion." (p. 255)
15. In
S.R. Bommai (supra) differing views were expressed by the learned Judges on the
scope and extent of the judicial review and justiciability of the action taken
by the President in exercise of power conferred under Article 356(1). Sawant
J., speaking for himself and Kuldip Singh J., had held that material on the
basis of which the advice is given by the Council of Ministers and the
President forms his satisfaction has to be scrutinised by Court within the
acknowledged parameters of judicial review, viz., illegality, irrationality and
mala fides. (p. 112).
Referring
to the ex- 13 pression "if the President .... is satisfied" in
Article 356(1) the learned Judge has said :
"Hence,
it is not the personal whim wish, view or opinion or the ipse dixit of the
President dehors the material but a legitimate inference drawn from the material
placed before him which is relevant for the purpose. In other words, the
President has to be convinced of or has to have sufficient proof of information
with regard to or has to be free from doubt or uncertainly about the state of
things indi- cating that the situation in question has arisen. Although,
therefore, the sufficiency or otherwise of the material cannot be questioned
the legitimacy of inference drawn from such material is certainly open to
judicial review. " (p. 103)
16.
According to the learned Judge, "Many of the parameters of judicial review
developed in the field of administrative law are not antithetical to the field
of constitutional law and they can equally apply to the domain covered by the
constitutional law." (p.94). The learned Judge has applied the tests laid
down by this Court in Barium Chemicals Ltd. v. Company Law Board. 1966 Supp.
SCR. 311.
17. Jeevan
Reddy J., speaking for himself and one of us (Agrawal J.), did not, however,
give such a wide scope to the power of judicial review in respect of a
proclamation made under Article 356 (1). After pointing out that Barium
Chemicals (supra) is a decision concerning subjective satisfaction of an
authority created by a statute, the learned Judge has held that the principles
enshrined in that case "cannot ipso facto be extended to the exercise of
constitutional power under Article 35 of the Constitution and that "having
regard to the fact that this is a high Constitutional functionary in the
Nation, it may not be appropriate to adopt the tests applicable in the case of
action taken by statutory or administrative authorities nor, at any rate, in
their entirety." (p.267). He preferred to adopt the formulation that
"if a Proclamation is found to be mala fide or is found to be based wholly
on extraneous or irrelevant grounds, it is liable to be struck down."
(p.268). The teamed Judge has observed: "The truth or correctness of the
material cannot be questioned by the court nor will it go into the adequacy of
the material. It will also not substitute its opinion for that of the
President. Even if some of the material on which the action is taken is found
to be irrelevant, the court would still not interfere so long as there is some
relevant material sustaining the action. The ground of mala fides takes in
inter alia situations-where the Proclamation is found to be a clear case of
abuse of power, or what is sometimes called fraud on power cases where this
power is invoked for achieving oblique ends." (p. 268). The learned Judge
has further stated: "The court will not lightly presume abuse or misuse.
The court would, as it should, tread wearily, making allowance for the fact
that the President and the Union Council of Ministers are the best judges of
the situation, that they alone are in possession of information and material
sensitive in nature sometimes and that the Constitution has trusted their
judgment in the matter. But all this does not mean that the President and Union
Council of Ministers are the final arbiters in the matter or that their opinion
is conclusive." (pp.268 269). Pandian J. has expressed his agreement with
the judgment of Jeevan Reddy J.
18. Ahmadi
J. (as the learned Chief Justice then was), while expressing his agree- 14 ment
with the view expressed in the State of Rajasthan (supra) has held that a
proclamation issued under Article 356(1) of the Constitution can be challenged
on the limited ground that the action is mala fide or ultra vires Article 356
itself and has held that the test laid down in Barium Chemicals (supra) and subsequent
decisions for adjudging the validity of administrative action can have no
application for testing the satisfaction of the President under Article 356.
(p.82)
19. Verma
J., speaking for himself and Yogeshwar Dayal J., has taken the same view. The
learned Judge has held though the Proclamation under Article 356 is subject to
judicial review the area of justiciability is narrow. While holding that the
test for adjudging the validity of an ad- ministrative action and the grounds
of its invalidity indicated in Barium Chemicals "(Supra) and other cases
of that category have no application for testing and invali- dating a
Proclamation issued under Article 356, the learned Judge has said that the
grounds of invalidity are those mentioned in State of Rajasthan (supra). (p.
85)
20. K.
Ramaswamy J. has held: "The decision can be tested on the ground of legal mala
fides, or high irrationality in the exercise of the discretion to issue
Presidential Proclamation and the traditions parameters of judicial review,
therefore cannot be extended to the area of exceptional and extraordinary power
exercise under Article 356". The learned Judge has also held that the
"doctrine of proportionality cannot be extended to the power exercised
under Article 356." (p. 209)
21. It
would thus appear that in S.R Bommai (supra) though all the learned Judges have
held that the exercise of power under Article 356 (1) is subject to judicial
review but in the matter of justiciability of the satisfaction of the
President, the view of the majority (Pandian, Ahmadi, Verma, Agrawal, Yogeshwar
Dayal and Jeevan Reddy JJ.) is that the principles evolved in Barium Chemicals
(supra) for adjudging the validity of an action based on the subjective
satisfaction of the authority created by statute do not, in their entirety,
apply to the exercise of a constitutional power under Article 356. On the basis
of the judgment of Jeevan Reddy J., which takes a narrower view than that taken
by Sawant J., it can be said that the view of the majority (Pandian, Kuldip
Singh, Sawant, Agrawal and Jeevan Reddy JJ.) is that :
(i) the
satisfaction of the President while making Proclamation under Article 356(1) is
justiciable;
(ii) it
would be open to challenge on the ground of mala fides or being based wholly on
extraneous and/or irrelevant grounds;
(iii)even
if some of the materials on which the action is taken is found to be
irrelevant, the court would still not interfere so long as there is some
relevant material sustaining the action;
(iv) the
truth or correctness of the material cannot be questioned by the Court nor will
it go into the adequacy of the material and it will also not substitute its
opinion for that of the President;
(v)
the ground of mala fide takes in inter alia situations where the proclamation is
found to be a clear case of abuse of power or what is sometimes called fraud on
power;
15
(vi) the court will not lightly presume abuse or misuse of power and will make
allowance for the fact that the President and the Union Council of Ministers
are the best judge of the situation and that they are also in possession of
information and material and that the Constitution has trusted their judgment
in the matter; and (vii) this does not mean that the President and the Council
of Ministers arc the final arbiters in the matter or that their opinion is
conclusive.
22.As
to the bar to an inquiry by the court imposed under Article 74(2) of the
Constitution, all the Judges in S.R. Bommai (supra) have held that the said bar
under Article 74(2) is confined to the advice tendered by the Council of
Ministers to the President and it does not extend to the material on the basis
of which the advice was tendered and, therefore, Articles 74(2) does not bar
the production of the material on which the advice of the Council of Ministers
is based. This is, however, subject to the right to claim privilege against the
production of the said material under Section 123 of the Evidence Act.
23.Is
there anything in the provisions of clause (c) of the second proviso to Article
311 (2) which compels a departure fro the principles laid down in S.R. Bommai
(supra) governing justiciability of the satisfaction of the President in the
matter of exercise of power under Article 356? We have not been able to discern
any reason for making a departure. As compared the clause (c) of the second
proviso to Article 311 (2), which deals with an individual employee, the power
conferred by Article 356, resulting in displacement of the elected government
of a State and imposition of President's rule in the State, is of much greater
significance a. effecting large number of persons.
We
may, in this context, refer to clause (b) of the second proviso to Article 311
(2) whereunder it is permissible to dispense with the requirements of Article
311 (2) if the authority empowered to dismiss or remove a person or to reduce
him in rank is satisfied that for some reason, to be recorded by that authority
in writing, it is not reasonably practicable to hold such inquiry. Clause (3)
of Article 311 makes the said decision of the authority final. In spite of the
said provision attaching finality to the decision this Court, in Tulsiram Patel
(supra), has held :
"The
finality given by clause (3) of Article 311 to the disciplinary authority's
decision that it was not reasonably practicable to hold the inquiry is not
binding upon the court.
The
court will also examine the charge of mala fides, if any, made in the writ
petition. In examining the relevancy of the reasons, the court will consider
the situation which according to the disciplinary authority made it come to the
conclusion that it was not reasonably practicable to hold the inquiry.
If the
court finds that the reasons are ir- relevant, then the recording of its satis-
faction by the disciplinary authority would be, an abuse of power conferred
upon it by clause (b) and would take the case out of the purview of that clause
and the impugned order of penalty would stand invalidated." (p.274)
24.Clause (b) differs from clause (c) in as much as under clause (b) the competent
authority is required to record in writing the reasons for its satisfaction and
there is no such requirement in clause (c). This difference, in our opinion,
does not mean that the satisfaction of the President or the Governor under
clause (c) is immune from 16 judicial review and is not justiciable. It only
means that the provisions contained in clause (c) are more akin to those
contained in Article 356(1) which also does not contain any requirement to
record the reasons for the satisfaction of the President. Since the
satisfaction of the President in the matter of making a proclamation under
Article 356(1) is justiciable within the limits indicated in S.R. Bommai
(supra) the satisfaction of the President or the Governor, which forms the
basis for passing an order under clause (c) of the second proviso to Article
311 (2), can also be justiciable within the same limits.
25.Under
clause (c) of the second proviso to Article 311(2) the President or the
Governor has to satisfy himself about the expediency in the interests of the
security of the State to hold an enquiry as prescribed under Article 311 (2).
Are the considerations involving the interests of the security of the State of
such a nature as to exclude the satisfaction arrived at by the President or the
Governor in respect of the matters from the field of justiciability? We do not
think so. Article 19(2) of the Constitution permits the State to impose, by
law, reasonable restrictions in the in- terests of the security of the State on
the exercise of the right to freedom of speech and expression conferred by sub-
clause (a) of clause (1) of Article 19. The validity of the law imposing such
restrictions under Article 19(2) is open to judicial review on the ground that
the restrictions are not reasonable or they are not in the interests of the
security of the State. The Court is required to adjudicate on the question
whether a particular restriction on the right to freedom of speech and
expression is reasonable in the interests of the security of the State and for
that purpose the Court takes into consideration the interests of the security
of the State and the need of the restrictions for protecting those interests.
If the Courts are competent to adjudicate on matters relating to the security
of the State in respect of restrictions on the right to freedom of speech and
expression under Article 19 (2) there appears to be no reason why the Courts
should not be competent to go into the question whether the satisfaction of the
President or the Governor for passing an order under Article 311 (2) (c) is
based on considerations having a bearing on the interests of the security of
the State. While examining the validity of a law imposing restrictions on the
right to freedom of speech and expression this Court has emphasised the
distinction between security of the State and mainte- nance of public order and
has observed that only serious and aggravated forms of public order which are
calculated to en- danger the security of the State would fall within the ambit
of clause (2) of Article 19. (See : Romesh Thappar v. The State of Madras, 1950
SCR 594, at p. 601). So also in Tulsiram Patel (supra) the Court has pointed
out the distinction between the expressions 'security of the State', 'public
order' and 'law and order' and has stated that situations which affect public
order are graver than those which affect law and order and situations which
affect security of the State are graver than those which affect public order.
The President or the Governor while exercising the power under Article 311 (2)
(c) has to bear in mind this distinction between situations which affect the
security of the State and the situations which affect public order or law and
order and for the purpose of arriving at his satisfaction for the purpose of
passing an order under Article 311 (2) (c) the President or the Governor can
take into 17 consideration only those circumstances which have a bearing on the
interests of the security of the State and not on situations having a bearing
on law and order or public order. The satisfaction of the President or the
Governor would be vitiated if it is based on circumstances having no bearing on
the security of the State. If an order passed under Article 311(2) (c) is
assailed before a court of law on the ground that the satisfaction of the
President or the Governor is not based on circumstances which have a bearing on
the security of the State the Court can examine the cir- cumstances on which
the satisfaction of the President or the Governor is based and if it finds that
the said circumstances have no bearing on the security of the State the court
can hold that the satisfaction of the President or the Governor which is
required for passing such an order has been vitiated by wholly extraneous or
irrelevant considerations.
26. It
would be useful, in this context, to take note of the decision of the House of
Lords in Council of Civil Service Unions v. Minister for the Civil Services,
1985 (1) AC 374, which related to the Government Communications Head Quarters
(GCHQ). The main functions of GCHQ were to ensure the security of military and
official communications and to provide the government with signals intelligence
which in- volved the handling of secret information vital to the national
security. Since 1947 staff employed at GCHQ had been permitted to belong to
national trade unions and most had done so. There was a well-established
practice of consultation between the official and trade union sides about
important alterations in the terms and conditions of service of the staff. On
December 22, 1983 the Minister for the Civil Service gave an instruction for
the immediate variation of the terms and conditions of service of the staff
with the effect that they would no longer be permitted to belong to national
trade unions. There had been no consultation with the trade unions or with the
staff at GCHQ prior to the issuing of that instruction. The said in- struction
was challenged by a trade union and six individuals who sought judicial review
of the said instruction. Immunity from judicial review was claimed on the
ground that the said instruction had been issued in exercise of the prerogative
power of the Crown. The House of Lords held that executive action was not
immune from judicial review merely because it was carried out in pursuance of
the power derived from a common law or prerogative, rather than a statutory
source, and a minister acting under a prerogative power might, depending upon
its subject matter, be under the same duty to act fairly as in the case of action
under a statutory power. On behalf of the Minister it was submitted that prior
consultation would involve a real risk that it would occasion the very kind of
disruption that was threat to national security and which it was intended to
avoid. While recognising that the decision on whether the requirements of
national security outweigh the duty of fairness in any particular case, is for
the Government and not for the courts, Lord Fraser of Tully belton said
"But if the decision is successfully chal- lenged on the ground that it
has been reached by a process which is unfair then the Government is under an
obligation to produce evidence that the decision was, in fact, based on grounds
of national security," (p. 402) According to Lord Scarman 18 "The
point of principle in the appeal is as to the duty of the court when in
proceedings properly brought before it a question arises as to what is required
in the interest of national security. The question may arise in ordinary
litigation between private persons as to their private rights and obligations:
and it can arise as in this case in proceedings for judicial review of a
decision by a public authority." "But, however it arises, it is a
matter to be considered by the court in the circumstances and context of the case.
Though there, are limits dictated by law and common sense which the court must
observe in dealing with the question the court does 'not abdicate its judicial
functions. If the question arises as a matter of fact, the court requires
evidence to be given. If it arises as a factor to be considered in reviewing
the exercise of a discretionary power, evidence is also needed so that the
court may determine whether it should intervene to correct excess or abuse of
the power," [p. 404] 27. Similarly Lord Roskill has said:
"The
courts have long shown themselves sensitive to the assertion by the executive
that considerations of national security must preclude judicial investigation
of a particular individual grievance. But even in that field the courts will
not act on a mere assertion that questions of national security were involved.
Evidence is required that the decision under challenge was in fact founded on
those grounds. 'Mat that principle exists is 1 beyond doubt.?' [p. 420] 28.On
the basis of the evidence that was adduced in that case it was held that the
evidence established that the minister had considered, with reason, that prior
consul- tation about her instruction would have involved a risk of
precipitating disruption at GCHQ and revealing vulnerable areas of operation,
and, accordingly, she had shown that her decision had in fact been based on
considerations of national security that out weighed the applicants' legitimate
expectation of prior consultation.
29. In
Bakshi Sardari Lal (Dead) through LRs Ors. v. Union of India & Anr., 1987 (4) SCC 114, in a challenge to
orders of dismissal passed under clause (c) of the second. proviso to Article
311 (2) it was contended on behalf of the appellants that the High Court was
wrong in holding that the sufficiency of satisfaction of the Presi- dent was
not justiciable. While dealing with the said contention, the court, after
referring to the decision in Tulsiram Patel (supra), has observed :
"The
record of the case produced before us clearly indicates that the reason has
been recorded though not communicated. That would satisfy, the requirements of
the law as indicated in Tulsiram Patel Case . The plea of mala fides as had
been contended before the High Court and causally reiterated before us arises
out of the fact that typed orders dated June 3, 1971, were already on record in the file
when the papers were placed before the President; such a contention is without
any substance." [p. 121] 30.This would show that the court did go into the
question whether the impugned orders were vitiated by mala, fides.
As
noticed earlier in Tulsiram Patel (supra) also the Court, while dealing with
the Madhya Pradesh Police Forces matters, did examine the question whether the
impugned orders of dismissal passed under Article 311(2)(c) were vitiated by mala
fides or were based on irrelevant consid- 19 erations and after considering all
the materials that were produced before the Court by the State Government, the
Court recorded the finding that the facts leave no doubt that the situation was
such that prompt and urgent action was necessary and the holding of inquiry
into the conduct of each of the petitioners would not have been expedient in
the interests of the security of the State.
31.We
are, therefore, of the opinion that an order passed under clause (c) of the
second proviso to Article 311 (2) is subject to judicial review and its
validity can be examined by the court on the ground that the satisfaction of
the President or the Governor is vitiated by mala fides or is based on wholly
extraneous or irrelevant grounds within the limits laid down in S.R Bommai
(supra).
32.In
order that the Court is able to exercise this power of judicial review
effectively it must have the necessary material before it to determine whether
the satisfaction of the President or the Governor as the case may be, has been
arrived at in accordance with the law and is not vitiated by mala fides or
extraneous or irrelevant factors. This brings us to the question whether the
Government is obligated to place such material before the Court. It is no doubt
true that unlike clause (b) of the second proviso to Article 311 (2) which
requires the authority to record in writing the reason for its satisfaction
that it is not reasonably practicable to hold such inquiry clause (c) of the
second proviso does not prescribe for the recording of reasons for the
satisfaction. But the absence of such a requirement to record reason for the
satisfaction does not dispense with the obligation on the part of the concerned
Government to satisfy the court or the Tribunal if an order passed under clause
(c) of the second proviso to Article 311 (2) is chal- lenged before such court
or tribunal that the satisfaction was arrived at after taking into account
relevant facts and circumstances and was not vitiated by mala fides and was not
based on extraneous or irrelevant considerations. In the absence of the said
circumstances being placed before the court or the Tribunal it may be possible
for the concerned employee to establish his case that the satisfaction was
vitiated by mala fides or was based on extraneous or irrelevant considerations.
While exercising the power under Article 311 (2) (c) the President or the
Governor acts in accordance with the advice tendered by the Council of Ministers.
(See : Samsher Singh v. State of Punjab, 1975 (1) SCR 814). Article 74(2) and
Article 163 (3) which preclude the court from inquiring into the question
whether any, and if so, what advice was tendered by the Ministers to the
President or the Governor enable the concerned Government to withhold from the
court the advice that was tendered by the Ministers to the President or the
Governor. But, as laid down in S.R. Bommai (supra), the said provisions do not
permit the Government to withhold production in the Court of the material on
which the advice of the Ministers was based.
This
is, however, subject to the claim of privilege under Sections 123 and 124 of
the Evidence Act in respect of a particular document or record. The said claim
of privilege will have to be considered by the court or tribunal on its own
merit. But the upholding of such claim for privilege would not stand in the way
of the concerned Government being required to disclose the nature of the
activities of the employee on the basis of which 20 the satisfaction of the
President or the Governor was arrived at for the purpose of passing an order
under clause (c) of the second proviso to Article 311 (2) so that the court or
tribunal may be able to determine whether the said activities could be regarded
as having a reasonable nexus with the interest of the security of the State. In
the absence of any indication about the nature of the activities it would not
be possible for the court or tribunal to determine whether the satisfaction was
arrived at on the basis of relevant considerations. The nature of activities in
which employee is said to have indulged in must be distinguished from the
material which supports his having indulged in such activities. The
non-disclosure of such material would be permissible if the claim of privilege
is upheld. The said claim of privilege would not extend to the disclosure of
the nature of the activities because such disclosure would not involve
disclosure of any information connecting the employee with such activities or
the source of such information.
33.In
our opinion, therefore, in a case where the validity of an order passed under
clause (c) of the second proviso to Article 111(2) is assailed before a court
or a Tribunal it is open to the court or the Tribunal to examine whether the
satisfaction of the President or the Governor is vitiated by mala fides or is
based on wholly extraneous or irrelevant grounds and for that purpose the
Government is obliged to place before the court or tribunal the relevant
material on the basis of which the satisfaction was arrived at subject to a
claim of privilege under Sections 123 and 124 of the Evidence Act to withhold
production of a particular document or record. Even in cases where such a
privilege is claimed the Government concerned must disclose before the Court or
tribunal the nature of the activities in which the Gov- ernment employee is
said to have indulged in.
34.In
the present case the appellants had sought production and inspection of the
following documents:
(a)
The records and files containing the "information" on the basis of
which the President was "satisfied " for the purpose of exercising
his powers under clause (c) of the second proviso to Article 311 (2).
(b)
The records and files containing the description of "activities of the
petitioners which warranted their 'dismissal' from service".
(c)
The records and files containing the details of "misconduct"
attributed to the petitioners, as covered in CCS (Conduct) Rules, 1965.
(d) A
copy of the charge of misconduct and the statement of allegation in support
thereof framed by the Competent Authority against the petitioners before coming
to the conclusion that "it is not expedient to hold an inquiry in the case
of Shri B.B. Raval (petitioners)."
(e) A
copy of the original order passed by the President of India under Article 311
(2)(c) on the basis of which Shri R. Mahadevan, Under Secretary to the
Government of India, Ministry of Honic Affairs issued the impugned order dated
26th December, 1980 "By order and in the name of the 21 President".
(f) A
copy of the order of delegation of powers of the President of India authorising
Shri R. Mahadevan, Under Secretary to authenticate the order of the President
and issue the same in his name.
(g)
Records and files containing the de- liberations, recommendations and findings
of the Committee of Advisors (as envisaged in O.M. dated 26th July, 1980)
advising th e President of India to exercise powers under Article 311 (2)(c) of
the Constitution.
(h)
Copies of any other records, files, notification or recommendations relevant to
the issue of the impugned order, that the Hon'ble Tribunal may direct the
respondents to produce for rendering full and effective assistance to the Hon'ble
Tribunal in the interest of justice and for adjudication of this case.
35.
Dr. Madhav Godbole in his affidavit claimed privilege under Article 74(2) as
well as under Sections 123 and 124 of the Evidence Act. The Tribunal after
referring the decision of this Court in S.P. Gupta & Ors., etc. etc. v. Union
of India & Ors. etc. etc., 1982 (2) SCR 365, has observed that the
following classes of documents are protected from disclosure :
"(i)
Cabinet minutes, minutes of discussions between heads of departments, high
level inter-departmental communications and dispatches from ambassadors abroad.
(ii)
Papers brought into existence for the purpose of preparing a submission to
cabinet.
(iii)
Documents which relate to the framing of the Government policy at a high level.
(iv)
Notes and minutes made by the respective officers on the relevant files,
information expressed or reports made and gist of official decisions reached.
(v)
Documents concerned with policymaking within departments including minutes and
the like by junior officials and correspondence with outside bodies." 36.The
Tribunal, after examining the records produced before it, has observed that the
records contain cabinet minutes, papers brought into existence for the purpose
of preparing submission to the cabinet, notes made by the respective officers,
information expressed and the gist of official decisions. Having regard to the
fact that the appellants were working in a highly sensitive Organisation
entrusted with the delicate job of gathering, collecting and analysing
intelligence necessary to maintain the unity, integrity and sovereignty of the
country and that secrecy is the essence of the organisation and exposure may
tend to demolish the organisation and aggravate the hazards in gathering informa-
tion and dry up the sources that provide essential and sensitive information
needed to protect public interest, the Tribunal has held that it will not be in
public interest to permit disclosure of such documents. The Tribunal has,
therefore, upheld the claim of privilege. We do not find any ground to take a
different view in the matter.
37.After
looking into the records the Tribunal has recorded the finding that the
materials considered by the President relate to the activities of the
appellants which would prejudicially affect the security of 22 the State and
that the materials relied upon for the satisfaction of the President have
nothing to do with the activities of the appellants in relation to IBEA and
that the impugned orders have not been passed in violation of the interim order
passed by this Court in W.P. O Nos. 1119 of 1980 and that there is no substance
in the appellants' case that the orders of dismissal are not bona fide and had
been passed to victimise the appellants for promoting and participating in the
activities of IBEA. The learned Additional Solicitor General has submitted that
the Tribunal has not committed any error in adopting this course and has placed
reliance on the decision of this Court in Jamaat-e- Islamdi Hind v. Union of
India, 1995 (1) SCC 428.
38.In Jamaat-e-Islamdi
Hind (supra) a notification had been issued by the Government of India under
Section 3 of the Unlawful Activities (Prevention) Act, 1967 declaring that the Jamaat-e-Islami
Hind was an unlawful Association. The said notification was referred for
adjudication to the Tribunal constituted under the said Act. Before the
Tribunal the only material produced by the Central Government was a resume
prepared on the basis of some intelligence reports and the affidavits of two
officers who spoke only on the basis of the records and not from personal
knowledge. The Tribunal held that there was sufficient cause for declaring the
Association to be unlawful and confirmed the notification. On behalf of the
appellant it was urged that the only material produced at the inquiry does not
constitute legal evidence for the purpose in as much as it was, at best,
hearsay and that too without disclosing the source from which it emanates to
give an opportunity to the appellant to effectively rebut the same.
On the
other hand, on behalf of the respondent it was submitted that the requirement
of natural justice in such a situation was satisfied by mere disclosure of
information without disclosing the source of the information. This Court, while
holding that the minimum requirement of natural justice must be satisfied to
make the adjudication mean- ingful, observed that the said requirement of
natural justice in a case of this kind had to be tailored to safeguard public
interest which must always out-weigh every lesser interest. It was said:
"It
is obvious that the unlawful activities of an association may quite often be
clandestine in nature and, therefore, the source of evidence of the unlawful
activities may require continued confidentiality in public interest. In such a
situation, disclosure of the source of such information, and, may be, also full
particulars thereof, is likely to be against the public interest. ....... However,
the nondisclosure of sensitive information and evidence to the association and
its office- bearers, whenever justified in pubic interest.
does
not necessarily imply its non-disclosure to the Tribunal as well." [p.447]
39.These observations in Jamaat-e-Islamdi Hind (supra) lend support to the view
that in a case where the material is of such a nature that it requires continued
confidentiality in public interest it would be permissible for the court or
tribunal to look into the same while permitting the non- disclosure to the
other party to the adjudication. It cannot, therefore, be said that the
Tribunal, in the present case, was in error in looking into the record for the
purpose of determining whether the satisfaction has been vitiated for any of
the reasons mentioned by the appellants.
40.
The learned counsel for the appellants 23 have invited our attention to the averments
contained in C.M. No. 8494 of 1980 filed on behalf of the respondent in W.P.
No. 1117-19 of 1980 in this Court in support of their submission that the
impugned orders of dismissal have been passed on the basis of the activities
referred to in para 6 of the said application. This submission has to be,
rejected in view of the finding recorded by the Tribunal that the materials
considered by the President relate to the activities of the appellants which
would prejudicially affect the security of the State and that the said
materials have nothing to do with the activities of the appellant in relation
to IBEA.
41.
Having regard to the facts and circumstances of the case we are unable to hold
that the impugned orders for the dismissal of the appellants are vitiated by malafides
or are based on wholly extraneous or irrelevant grounds and we do not find any
ground to interfere with the decision of the Tribunal. The appeals are,
therefore, dismissed. But in the circumstances without any order as to costs.
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