Union of India and ANR.
Vs M.M. Sharma
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 Page 1 of 18 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 Page 3 of 18 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 Page 5 of 18 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 Page 6 of
18 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) & Page 7 of 18 (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 Page 8 of 18 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 Page 9 of 18 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 Page 12 of
18 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 Page 13 of 18 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 Page 14 of 18 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 Page 15 of 18 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 Page 16 of 18 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 Page 17 of 18 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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