Central Administrative Tribunal - Delhi
Rajiv Chaudhary vs Cabinet Secretariat on 22 March, 2018
Central Administrative Tribunal
Principal Bench
New Delhi
OA No.1993/2016
Reserved on : 02.11.2017
Pronounced on : 22.03.2018
Hon'ble Mr. Justice Permod Kohli, Chairman
Hon'ble Mr. K. N. Shrivastava, Member (A)
Rajiv Chaudhary S/o M. S. Chaudhary,
R/o D-II/196, Kidwai Nagar (West),
New Delhi. ... Applicant
( By Mr. M. K. Bhardwaj, Advocate )
Versus
Union of India through
Secretary, Cabinet Secretariat (R),
B1-B2 Wing, 10th Floor,
Paryavaran Bhawan,
CGO Complex, Lodhi Road,
New Delhi-110003. ... Respondent
(By Mr. Hanu Bhaskar, Advocate )
ORDER
Justice Permod Kohli, Chairman :
Questioning the validity of the dismissal from service vide order dated 11.02.2016, issued by Order and in the name of the President of India, invoking the provisions of Sub-Clause (c) of Proviso to Clause (2) of Article 311 of the Constitution of India read with Rule 19 (iii) of the CCS(CCA) Rules, 1965 and consequential Order dated 09.05.2016 for cancellation of allotment of Government OA-1993/2016 2 accommodation and Memorandum dated 25.02.2016 withdrawing the CGHS facility, this Original Application invoking Section 19 of the Administrative Tribunal Act 1985 has been instituted with following prayer:
"(i) To call for records on the basis of which the impugned order was passed;
(ii) Quash and set aside the impugned order dated 11.02.2016 issued to the Applicant.
(iii) Quash and set aside the impugned Memorandums being Memorandum bearing no.2/9/2013/Admin.1-1565, Memorandum bearing no.2/9/2013/Admin.1-2356 dated 09.05.2016 and Memorandum bearing no.2.12/2000-Pers.5-III-3538;
(iii) Direct the Respondent to pay to the Applicant his entire arrears of salary and other benefits with interest @18% per annum;
(iv) Award costs of this present OA to the Applicant;
(v) Pass such further and other orders as this Hon'ble Tribunal may deem fit and proper under the facts and circumstances of the case and in the interest of justice."
2. At the time of filing of this Application, the applicant had prayed for interim relief to allow him to retain the Government accommodation for some time on the ground that his mother was ailing. Taking a compassionate view the applicant was allowed to retain the Government accommodation initially for a period of 45 days, which order was extended from time to time.
OA-1993/2016 3
3. The factual matrix relevant for the purpose of the present Original Application is noticed hereunder:-
3.1. The applicant is a 1997 Batch Civil Servant. At the time of passing of the impugned order he was holding the position of a Deputy Secretary in the Research and Analysis Wing (R&AW). The applicant has served for about 18 years in the aforesaid wing of the Government. He claims to be having an impeccable record with integrity certified as "beyond-doubt". It is stated that the applicant was a topper in School and University level and belongs to a family of defence personnel. The applicant's father had fought 1962 India-
China War and Indo-Pak wars of 1965 and 1971. The applicant initially joined R&AW as an RAS Officer at the post of Attaché on probation. He successfully completed the probation period after qualifying the psychological aptitude test and interview in the year 2000, and later promoted as Under Secretary and Deputy Secretary. He has placed on record his Annual Confidential Reports Annexure A-3 (Colly) up to 31.03.2009, showing to have earned outstanding and very good ACRs with integrity certified as "Beyond doubt". It is mentioned that ACRs for 2009-10, and for the years 2014-15 & 12015- 16 have not been communicated to him. The applicant further stated that he handled highly sensitive and strategically important national/international assignments during his service career and on OA-1993/2016 4 account of sensitivity of the assignment he is prohibited from divulging the details and particulars of such assignments in the interest of the country. The applicant also claims to have received numerous commendations through commendation letters and top secret coded cables from the Secretary, R&AW appreciating his handling of the assignments.
3.2. The applicant was posted in the Indian High Commission in Dhaka, Bangladesh on the post of First Secretary from November 2006 where he remained till February 2010. While being posted in Bangladesh he is said to have been assigned desk as well as field job in the interest of Government of India. He was required to coordinate various functions. It is stated that the applicant was required to do the desk job for which a common desktop computer with internet facility was made available by the High Commission to be used by nearly 20 officials including the applicant. The relevant information gathered by the applicant was being shared with the higher authorities. The applicant used to venture out even at night at the risk of his life to collect information from various sources in the national interest, with the knowledge of all officers posted at the relevant time. It is also mentioned that the applicant was in direct touch with the headquarter due to his knowledge and ability to deliver promptly under any circumstances, thereby by-passing the OA-1993/2016 5 superiors of the applicant, due to which the superiors of the applicant were extremely unhappy with this fact and threatened to ruin his career and attempts in this regard were made but no action was ever initiated against the applicant as the applicant acted in a most professional and diligent manner. The applicant had made allegations of bias and mala fides against Mr. Niraj Srivastava, who was posted in Dhaka and is said to be superseded owing to overall poor performance. He has also alleged mala fides against one Mr. R. Kumar who succeeded Mr. Niraj Srivastava and also one Mr. Rajinder Khanna, who was later posted as Additonal Secretary at the Headquarter. It is alleged that Mr. Rajinder Khanna got the applicant transferred to another desk to take on onerous and unrelated assignments with the object of targeting the applicant and to malign his reputation. The applicant expressed his inability to do so as he was in the middle of other sensitive assignments which prompted the then Secretary to revoke the said transfer order. It was on this account that the Additional Secretary Mr. Rajinder Khanna became inimical towards the applicant and spared no occasion to pass remarks threatening the applicant and his career prospects. Mr. R Kumar who was also posted as Staff Officer of Mr. Rajinder Khanna utilized the opportunity to poison the ears of Mr. Rajinder Khanna to harm and ruin the career of the applicant. The applicant had also referred to the incident of one Ms Indrani Chatterjee, who alleged OA-1993/2016 6 sexual harassment against the applicant before the Vishakha Committee. Said Ms Chatterjee was posted under the applicant with the intention of maligning the applicant, although the applicant had repeatedly requested in writing not to post her under him. He has referred to another complaint of harassment by one Madhvi Bhardwaj, a lady German translator at the behest of his superiors on 16.08.2011. It is also stated that the superiors of the applicant were fully aware of the fact that the applicant had taken administrative action against the said lady in relation to her habitual unauthorized absence from office. Even though there was no allegation of sexual harassment, the complaint was deliberately referred to the Complaints Committee, set up under the Vishakha judgment. The Complaints Committee had no sufficient material against the applicant and one of the Members of the Committee even wrote on her complaint, "get the witness". It was because of the said noting the said complainant filed a second complaint on 15.09.2013 in order to cover up her baseless charges. This complaint was also referred to Vishakha Committee. The applicant has also alleged that the said committee functioned in a completely non-transparent manner and neither any opportunity was given to the applicant to cross-examine the witnesses nor any opportunity was given to even engage a defence assistant. He has alleged violation of principles of natural justice and procedural irregularities. The Complaint Committee vide OA-1993/2016 7 its report dated 04.05.2012 exonerated the applicant with the following conclusion:
"The Committee is of the view that while the complaint of Ms Madhvi Bhardwaj does not clearly fall in the category of "unwelcome sexually determined behavior" or other categories of sexual harassment as defined, Shri Rajiv Chaudhary's conduct and personal comments certainly raise questions about his motives. However, it has to be admitted that this is only a reasonable assumption and cannot be proven in such cases."
It is stated that even though the complaint against the applicant was false, but no action was taken against Ms. Madhvi Bhardwaj. The applicant has also referred to his impending promotion but the report of exoneration was deliberately not intimated to the applicant as a DPC meeting was to be convened on 12.05.2012. The DPC kept the case of the applicant in sealed cover in its meeting held on 29.05.2012 for his promotion to the post of Director. The denial of promotion is also said to be illegal and an act of harassment to the applicant, besides being contrary to the norms laid down by the DoP&T. It is mentioned that the Disciplinary Authority, i.e., the Prime Minister vide its order dated 16.07.2012 exonerated the applicant. However, this decision was not communicated to the applicant. The applicant filed OA No. 3884/2013 seeking direction for setting aside the inquiry proceedings against the applicant or directions to the respondents to pass a final order considering the Complaints OA-1993/2016 8 Committee's Report. The final order of exoneration was furnished to the applicant on 26.12.2014. OA No.3834/2013 was disposed of vide order dated 07.02.2014 directing the respondents to pass the final order considering the Complaints Committee's Report and representation of the applicant within a period of three months. It is also mentioned that even though the applicant was exonerated by the Complaints committee, the respondents continued to contest the OA without disclosing the order/recommendations of the Complaints Committee, as also the final order passed by the Disciplinary Authority. While the contemporaries of the applicant were promoted, the applicant was issued a second charge sheet on 11.12.2013 on the same material suo moto on the same charges. The applicant was, however, exonerated from both the charges. A review petition RA 169/2014 was also filed by the respondents against the decision dated 07.02.2014 passed in OA No. 3834/2013. This RA was also disposed of vide order dated 23.02.2016. Since the applicant had been issued a charge sheet, the applicant challenged the same in OA No. 4724/2014. This OA was dismissed by the Tribunal vide order dated 17.12.2015. Within two months of the dismissal of the OA the impugned order has been passed dismissing the applicant from service.
OA-1993/2016 9 3.3. It is stated that the applicant had never indulged in any professional misconduct including possible compromise of operational secrets at any point of time in his service career.
3.4. The applicant has referred to a questionnaire served upon him which he had replied to. A copy of the questionnaire and reply thereto is placed on record as Annexure A-4.
4. The applicant has challenged the impugned order primarily on the following grounds:-
(i) The impugned order is perverse, illegal and un-
warranted and is passed in gross violation of the process of law and colourable exercise of power for extraneous reasons.
(ii) There has been not even a single instance of the applicant's conduct involving any act prejudicial to the security of the State.
(iii) The impugned order is mala fide and smacks of bias and malice on the part of the officials.
(iv) The impugned orders are violative of principles of natural justice.
5. This Application is contested by the respondents. A short reply affidavit has been filed by one Mr. H. Kumar, Under Secretary OA-1993/2016 10 in the Cabinet Secretariat, Government of India. A preliminary objection has been raised seeking dismissal of the OA stating therein-
(i) The applicant is seeking multiple reliefs which is impermissible.
(ii) The dismissal of the applicant being in accordance with the Constitution of India and other relevant rules and there is no mala fide or prejudice on the part of the Government, hence the Application is liable to be dismissed.
6. The respondents have admitted the joining of the applicant in Indian Civil Services on 01.9.1997. It is stated that he was appointed as Attache and allotted 1997 Batch on probation for one year. On completion of probation period in terms of Rule 142(2), he was confirmed vide order dated 13.08.2000 for absorption in the Research and Analysis wing (R&AW) of the Cabinet Secretariat, The applicant was promoted as Under Secretary on 31.01.2002 and later on as Deputy Secretary w.e.f. 01.2.2006. It is also mentioned that the applicant was issued warning notice for his undignified behavior when he was posted as Deputy Secretary. Referring to the complaint filed by Ms Madhvi Bhardwaj on 16.08.2011 followed by complaint dated 15.09.2011 the same was forwarded to the Complaints Committee. It is mentioned that the Committee in its report dated OA-1993/2016 11 04.05.2014 concluded that though the complaint filed by Ms Madhvi Bhardwaj does not fall in the category of unwelcome sexual determined behavior or other categories of sexual harassment as defined, yet certain acts of the applicant were un-becoming of a Government servant. The said Report was made available to the applicant for his reply. The applicant submitted his reply vide representation dated 01.10.2012. The disciplinary authority issued major penalty charge-sheet vide OM dated 11.12.2013 against the applicant. The applicant filed OA No.3834/2013 before the Tribunal which was decided vide judgment dated 07.02.2014 directing the respondents to pass final order considering the Complaints Committee's Report and the representation of the applicant. Another OA No.4724/14 was filed by the applicant seeking quashment of impugned order dated 11.12.2013. This OA was dismissed vide judgment dated 17.12.2015. It is accordingly stated that the applicant was dismissed from Government service vide the impugned order dated 11.02.2016.
7. In a short rejoinder filed by the applicant, the averments made in the OA are reiterated.
8. We have heard the learned counsel for the parties at length.
OA-1993/2016 12
9. The following questions arise for consideration before the Tribunal:-
(i) Whether the order of dismissal passed under sub-clause (c) of the second proviso to Article 311(2) of Constitution of India is amenable to the judicial review;
(ii) Whether procedural safeguards for invoking jurisdiction/power under sub-clause (c) of the second proviso to Article 311 (2) of the Constitution of India have been observed.
(iii) Whether the impugned order is actuated by bias and mala fides.
The first impugned order dated 11.02.2016 dismissing the applicant from service invoking sub-clause (c) of the second proviso to Article 311(2) of the Constitution of India and Rule 19 (iii) of the CCS (CCA) Rules 1965, reads as under:
"WHEREAS the President is satisfied under sub- clause (c) of the proviso to clause (2) of Article 311 of the Constitution of India read with Rule 19(iii) of the CCS (CCA) Rules, 1965 that in the interest of the security of the State it is not expedient to hold an inquiry in the case of Shri Rajiv Chaudhary, RAS:97, IRLA No.24134, Deputy Secretary.
AND WHERERAS, the President is satisfied that, on the basis of the information available, the activities of Shri Rajiv Chaudhary, Deputy Secretary are such as to warrant his dismissal from service.
OA-1993/2016 13 Accordingly, the President hereby dismisses Shri Rajiv Chaudhary, Deputy Secretary from service with immediate effect.
The President further orders that the said Shri Rajiv Chaudhary, Deputy Secretary will not be paid any pensionary benefits or compassionate allowance consequent to his dismissal from service."
The order impugned having been passed under the provisions of Article 311 of the Constitution of India, read with Rule 19 (iii) of the CCS (CCA) Rules, 1965, it is desirable that both the provisions are examined. Article 311 and relevant extract of rule 19(iii) are re- produced hereunder:
"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State - (1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed (2) No such person as 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 OA-1993/2016 14 which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank ins satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry;
or
(c) where the President or the 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 (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final."
Rule 19 (iii) of CCS (CCA) Rules, 1965 reads as under:
"19. Special procedure in certain cases Notwithstanding anything contained in Rule 14 to Rule 18 -
xxx xxx xxx xxx
(iii) where the President is satisfied that in the
interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these rules.
the Disciplinary Authority may consider the circumstances of the case and make such orders thereon as it deems fit:"
Clause (1) of Article 311 of the Constitution of India provide that no person who is member of a civil service of the Union or an All India Service or a Civil Service of a State or holds a Civil post under the OA-1993/2016 15 Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. Clause (2) of this Article mandates that the dismissal or removal or reduction in rank is prohibited 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. First proviso to clause (2) require the competent authority to enforce penalty on the basis of the evidence adduced during such an inquiry and it is not necessary to provide an opportunity of making representation on the proposed penalty. Second proviso to clause (2) makes the clause (2) inapplicable under three situations, the present case being governed by sub-clause (c) of clause (2). Under this sub-clause the President or the Governor, as the case may be, is empowered to dismiss, remove or reduce in rank a Civil servant on being satisfied that in the interest of the security of the State, it is not expedient to hold an inquiry. The expression "satisfied" implies in itself recording of reasons by the President or the Governor. The expression "interest of the security of the State" means that the act complained of must relate to or involving such action which in any manner tends to endanger the security of the State. Before we delve upon these two issues, it is apt to consider on the question of scope of judicial review as objected to by the respondents in the counter affidavit and argued by Mr. Hanu Bhaskar on behalf of the respondents.
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10. The scope of judicial review where the action of a constitutional authority in exercise of its constitutional powers is complained of, has been considered by the Apex Court in various judgments. In Union of India v Tulsi Ram Patel [(1985) 3 SCC 398, it is held as under:
"138. Where a government servant is dismissed, removed or reduced in rank by applying clause (b) or an analogous provision of the service rules and he approaches either the High Court under Article 226 or this Court under Article 32, the court will interfere on grounds well established in law for the exercise of power of judicial review in matters where administrative discretion is exercised. It will consider whether clause (b) or an analogous provision in the service rules was properly applied or not. 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 irrelevant, then the recording of its satisfaction 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...."
11. A Constitution Bench in S. R. Bommai v Union of India [(1994) 3 SCC 1], while examining the power of judicial review in respect to a Presidential Proclamation issued under Article 356 (1) of the Constitution of India, by a majority view held as under:
OA-1993/2016 17
(i) the satisfaction of the President while making a 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 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;
(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 are the final arbiters in the matter or that their opinion is conclusive.
In A. K. Kaul & another v Union of India & another [(1995) 4 SCC 73], the Hon'ble Supreme Court adopted the same view in respect to an order passed under clause (c) of the second proviso to Article 311 (2) of the Constitution. Thus, it can be safely concluded that where any of the situations envisaged in the aforesaid judgments arise, the Tribunal has the jurisdiction to exercise the power of judicial review.
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12. The expression "security of the State" has not been defined in the Indian Constitution or in the General Clauses Act. This expression has, however, been used under statutes framed for preventive detention. In Ram Manohar Lohia v State of Bihar [(1966) 1 SCR 709 : AIR 1966 SC 740], the Hon'ble Supreme Court has drawn a distinction between the expression "law and order", "public order" and "security of the State". In Tulsi Ram Patel's case (supra) the Hon'ble Supreme Court, examining the scope of the expression "in the interest of security of the State" observed that the interest of security of the State may be affected by actual acts or even the likelihood of such acts taking place. Thus, any kind of threat or likelihood of danger to the security of the State would fall within the purview of "in the interest of security of the State". The relevant observations are:
"141. The expressions "law and order", "public order" and "security of the State" have been used in different Acts. 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". Thus, of those situations those which affect "security of the State" are the gravest. Danger to the security of the State may arise from without or within the State. The expression "security of the State" does not mean security of the entire country or a whole State. It includes security of a part of the State. It also cannot be confined to an armed rebellion or revolt. There are various ways in which security of the State can be affected. It can be affected by State secrets or information relating to defence, production or similar OA-1993/2016 19 matters being passed on to other countries, whether inimical or not to our country; or by secret links with terrorists. It is difficult to enumerate the various ways in which security of the State can be affected. The way in which security of the State is affected may be either open or clandestine. Amongst the more obvious acts which affect the security of the State would be disaffection in the Armed Forces or para-military Forces. Disaffection in any of these Forces is likely to spread, for disaffected or dissatisfied members of these Forces spread such dissatisfaction and disaffection among other members of the Force and thus induce them not to discharge their duties properly and to commit acts of indiscipline, insubordination and disobedience to the orders of their superiors. Such a situation cannot be a matter affecting only law and order or public order but, is a matter affecting vitally the security of the State...."
13. The respondents have produced the record relating to passing of the impugned order dismissing the applicant. We have carefully and extensively examined the said record. Earlier complaints against the applicant were made by two lady officers in respect to alleged sexual harassment of lady officers. The proceedings in the said complaints resulted in his exoneration from the allegations of sexual harassment. The authorities, however, served another charge-sheet dated 11.12.2013 for the same allegations of misconduct. While this charge-sheet was pending, the respondents initiated the process for dismissal of the applicant from service under clause (c) of the second proviso to Article 311 (2) of the Constitution of India vide note dated 28.07.2015. The departmental file also contains the minutes of the meeting of the Committee of OA-1993/2016 20 Advisers constituted under the provisions of Ministry of Home Affairs (Department of Personnel & Administrative Reforms) office memorandum No.34012/1(S)/79-Estt.(B) dated 26.07.1980. This meeting was held on 28.10.2015. The committee in the minutes of the aforesaid meeting recorded that from the facts of the case and the supporting evidence placed before it, it was of the view that the applicant committed certain acts of commission and omission while posted at Special Bureau, Bhuj during the period 21003-04, Indian High Commission at Dhaka during the period 10.10.2006 to 12.02.2010, and at the Headquarters in relation to highly sensitive and operational matters of R&AW, which had an adverse effect on the security of the State. The committee further recorded that disclosure of the grounds for taking action against the delinquent officer under proviso (c) of Article 311 (2) was not desirable because of its adverse implications on the interests of the national security, and more particularly in view of the fact that disclosure of such grounds would lead to public exposure of the nature of highly sensitive operations and modus operandi of the organization, besides revealing details of its personnel working under-cover in a neighbouring country. The committee found the evidence against the delinquent officer credible and adequate to proceed against him by invoking proviso (c) of Article 311 (2) of the Constitution of India. These minutes are available in the file of "O/o JS(S)". Apart from this, two more files OA-1993/2016 21 have been placed before this Tribunal. The file No.SS(N)/2010 pertains to inquiry relating to the period 2010, noticing the activities of the applicant when he was posted in Bangladesh. Another file No.13(3)/70/2000-DO-II(A) of the Cabinet Secretariat, is the personal file of the applicant, and contains details of the applicant right from the time of his appointment and transfers to various places and also the material like his property statements etc. At page 2/N of this file, there is a note dated 11.02.2016 referring to DOP&T OM dated 08.02.2016 conveying approval of the competent authority, i.e., the Hon'ble Prime Minister to dismiss the applicant from service under clause (c) of Article 311 (2) of the Constitution of India and non- payment of any pensionary benefits to the applicant. However, none of the files produced before the Tribunal contain the actual notings wherein the approval of the Hon'ble Prime Minister is said to have been accorded.
14. We have already held that the order of dismissal passed under clause (c) of the second proviso to Article 311 (2) of the Constitution of India is justiciable and amenable to judicial review on the grounds of mala fides, irrelevant considerations, violation of constitutional/statutory provisions and based upon no material, though adequacy of material is not to be gone into.
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15. The next question which falls for consideration is whether the procedural safeguards envisaged under Article 311 have been applied while passing the impugned order of dismissal from service. Clause (C) of the second proviso to Article 311 (2) requires the satisfaction of the President or the Governor, as the case may be, to formulate an opinion that it is not expedient to hold inquiry in the interest of the security of the State. Whereas under clause (b) thereof, it is the satisfaction of the authority empowered to dismiss or remove a Government servant, meaning thereby the disciplinary authority. The question thus arises in case of a Government servant being proceeded under sub-clause (c) of the second proviso to clause (2) of Article 311, it is the satisfaction of the President himself or such satisfaction is to be arrived at by a delegatee of the President. This question is no more res integra and has been concluded by a Constitution Bench of the Hon'ble Supreme Court in case of Sardari Lal v Union of India [(1971) 1 SCC 411]. In the said case a Sub Inspector of Delhi Police was dismissed from service invoking clause
(c) of the second proviso to Article 311 (2) of the Constitution in the interest of security of the State. One of the grounds for challenge to the order of dismissal was that the satisfaction under the aforesaid constitutional provision is to be recorded by the President himself and not by a delegatee. The Tribunal and the High Court negated the OA-1993/2016 23 challenge and dismissed the petition. The Hon'ble Supreme Court noticed the challenge in para 3, which reads as under:
"3. It was common ground before the High Court and has not been disputed before us that the President had no occasion to deal with the case of the appellant himself and the order was made by Shri Venkataraman, Joint Secretary to the Government of India in the Ministry of Home Affairs. It was claimed by him that he was competent to make the order by virtue of the authority which he derived under the Government of India (Allocation of Business) Rules, 1961, made under Article 77(3) of the Constitution. Before the High Court, the controversy was confined to the narrow point whether the function which is to be performed by the President under clause (c) of the proviso to Article 311(2) could be performed by the authority to whom such function had been allocated under the aforesaid Rules. The High Court negatived the contention raised on behalf of the appellant that such a function could not have been delegated by the President to any other authority. The High Court also relied on the provisions of Article 77(2) which provides for the authentication of orders made in the name of the President."
The Hon'ble Supreme Court observed as under:
5. These articles have come up for consideration before this Court in several cases and in connection with diverse points. The view that has been taken with regard to their true content, scope and inter-
connection and the nature of the power exercisable under them is that while Article 310 provides for the tenure at the pleasure of the President or the Governor, Article 309 enables the legislature or the Executive as the case may be to make any law or rule in regard inter alia to conditions of service without impinging upon the overriding power recognised under Article 310, read with Article 311. The power to dismiss a public servant at pleasure is outside the scope of Articles 53 and 154 of the Constitution and OA-1993/2016 24 cannot be delegated by the President or the Governor, to a subordinate officer and can be exercised by him only in the manner prescribed by the Constitution. This, however, does not mean that a law cannot be made under Article 309 or a rule cannot be framed under the proviso to the said article prescribing the procedure by which and the authority by whom the said pleasure can be exercised, vide Moti Ram Deka v. General Manager, N.E.F.Railways, Maligaon, Pandu, [1964 SC 600 : (1964) 5 SCR 683 : (1964) 2 SCA 372] Article 311 contains the main safeguards for civil servants in the matter of dismissal or removal or reduction in rank while the procedure provided in clause (2) must be followed before the dismissal or removal or reduction in rank of a civil servant can be ordered, there are certain exceptions which have been made where it is not necessary to comply with the requirements of the substantive part of clause (2) of Article 311. These exceptions are contained in the three clauses (a), (b) and (c) of the proviso to clause (2).
6. As in the cases mentioned in the proviso, the procedure laid down in clause (2) has not to be followed and the only protection which is conferred on a civil servant cannot be availed of by him, we must look at them carefully. A dichotomy has been introduced in clauses (b) and (c) with regard to the authority or the functionary who has to be satisfied about the matters stated therein. In clause (a), it is only the authority empowered to dismiss or remove a person or to reduce him in rank who has to be satisfied that it is not reasonable practicable to hold the inquiry provided by clause (2) and his decision in terms of clause (3) of the article shall be final. But in clause (c) it is the President or the Governor alone, as the case may be, who has to be satisfied that in the interest of the security of the State it is not expedient to hold such inquiry." (Emphasis supplied) "8. It seems to us that there is a good deal of substance in the argument raised on behalf of the appellant and on the principles which have been enunciated by this Court, the function in clause (c) of the proviso to Article 311(2) cannot be delegated by the President to anyone else in the case of a civil servant of the Union. In other words he has to be OA-1993/2016 25 satisfied personally that in the interest of the security of the State, it is not expedient to hold the inquiry prescribed by clause (2). In the first place, the general consensus has been that executive functions of the nature entrusted by the articles, some of which have been mentioned before and in particular those articles in which the President has to be satisfied himself about the existence of certain fact or state of affairs cannot be delegated by him to any one else. Secondly even with regard to clause (c) of the proviso, there is a specific observation in the passage extracted above from the case of Jayantilal Amrit Lal Shodhan that the powers of the President under that provision cannot be delegated. Thirdly the dichotomy which has been specifically introduced between the authority mentioned in clause (b) and the President mentioned in clause (c) of the proviso cannot be without significance. The Constitution makers apparently felt that a matter in which the interest of the security of the State had to be considered should receive the personal attention of the President or the Head of the State and he should be himself satisfied that an inquiry under the substantive part of clause (2) of Article 311 was not expedient for the reasons stated in clause (c) of the proviso in the case of a particular servant." (Emphasis supplied) Finally after setting aside the judgment of the High Court, the order of dismissal was quashed by the Hon'ble Supreme Court.
16. As far as the action under rule 19(iii) of the CCS (CCA) Rules, 1965 is concerned, this is only an enabling provision, and does not operate independently of Article 311 of the Constitution of India. In any case, this is only a subservient provision.
17. In the present case, the respondents have not produced any record to indicate as to who has recorded the satisfaction holding OA-1993/2016 26 that it is inexpedient to hold an inquiry. As a matter of fact, no such satisfaction has been recorded, which is sine qua non for exercising jurisdiction under clause (c) of the second proviso to Article 311(2). Even the approval of the Hon'ble Prime Minister has not been produced. In any case, neither it is the case of the respondents nor is it revealed from the record that the file was ever placed before the Hon'ble President of India. To the contrary, the note dated 11.02.2016 in file No.13(3)/70/2000-DO-II(A) of the Cabinet Secretariat would show that the order of dismissal from service has been passed with the approval of the Hon'ble Prime Minister. The constitutional safeguards prescribed under Article 311 are mandatory in nature. The doctrine of pleasure for removal of a Government servant envisaged under Article 310 is subject to the adherence of the procedural safeguards under Article 311. Non-observance of these safeguards would render an action illegal and unconstitutional.
18. File No.SS(N)/2010 contains an inquiry report relating to the period of the applicant's posting at Bhuj, which simply pertains to his alcohol consumption, and his posting at Bangladesh and thereafter contains allegations of association with various women. One of the scope of the inquiry was to investigate and gather evidence if the applicant had passed any sensitive information to his sources/contacts. The inquiry committee sent a questionnaire to the OA-1993/2016 27 applicant and after seeking his response, the committee in its inquiry report while commenting upon various other aspects of the applicant's character indulging in various other social evils, noticed as under:
"xi) There is no direct evidence to prove that the officer has ever passed on sensitive data to ISI operative on the basis of the examination carried out by the team till 25th November, 2009 of some of the files (11814) and emails (25,287) retrieved for analysis.
xii) As the officer's computer was connected to internet and a lot of word documents were openly stored on the hard drive, it is possible that these could have been remotely accessed by an adversary."
In respect to the applicant's association with another lady at Delhi, it has been noticed by the team who kept the officer under physical surveillance that the telephone of the said lady was put under surveillance and she was in contact with some suspicious person in Pakistan, apart from being in contact with persons from UK and USA.
19. In view of the above circumstances, we are of the opinion that insofar as the material on record is concerned, it is not appropriate for us to examine the adequacy of the material and thus on that ground we may not like to interfere in the impugned dismissal order. However, interference in the impugned order of dismissal from service is warranted on two counts - (i) that the OA-1993/2016 28 satisfaction that it is inexpedient to hold an inquiry in the interest of the security of the State, has not been recorded by the President, as is the mandate of clause (c) of the second proviso to Article 311(2) of the Constitution of India; and (ii) no reasons have been recorded for dispensing with the inquiry being inexpedient, which is also sine qua non for exercising jurisdiction under clause (c) of the second proviso to Article 311(2). The Constitution Bench of the Hon'ble Supreme Court in Tulsi Ram Patel's case (supra) held as under:
"142. 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 satisfaction 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. The Shorter Oxford English Dictionary, 3rd Edn., defines the word "inexpedient" as meaning "not expedient; disadvantageous in the circumstances, unadvisable, impolitic". The same dictionary defines "expedient" as meaning inter alia "advantageous; fit, proper, or suitable to the circumstances of the case". Webster's Third New International Dictionary also defines the term "expedient" as meaning inter alia "characterized by suitability, practicality, and efficiency in achieving a particular end: fit, proper, or advantageous under the circumstances". It must be borne in mind that the satisfaction required by clause (c) is of the OA-1993/2016 29 Constitutional Head of the whole country or of the State. Under Article 74(1) of the Constitution, the satisfaction of the President would be arrived at with the aid and advice of his Council of Ministers with the Prime Minister as the Head and in the case of a State by reason of the provisions of Article 163(1) by the Governor acting with the aid and advice of his Council of Ministers with the Chief Minister as the Head. Whenever, therefore, the President or the Governor in the constitutional sense is satisfied that it will not be advantageous or fit or proper or suitable or politic in the interest of the security of the State to hold an inquiry, he would be entitled to dispense with it under clause (c). 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 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 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." (Emphasis supplied) What emerges from the above observations is that the Hon'ble President must record a satisfaction in respect to the inexpediency of holding an inquiry. Though such reasons are not required to be recorded in the order of dismissal or made public, but recording of reasons is a must, and here the exercise of power of judicial review OA-1993/2016 30 becomes relevant. Unless the reasons are recorded, one cannot say whether such reasons are based upon relevant material or otherwise.
In absence of recording of reasons, the order of dismissal is rendered illegal.
20. The applicant has referred to bias and mala fides against some of the officers of the department without impleading them as parties. The allegations are otherwise also not specific. Thus, we are of the opinion that the issue of mala fides and bias does not call for consideration in the present case.
21. For the above reasons, this OA is allowed. Impugned order of dismissal from service dated 11.02.2016 is hereby quashed. As a consequence of quashment of the impugned order of dismissal from service, subsequent orders also stand quashed. The applicant is directed to be reinstated in service with all consequential benefits, without any interest. Quashment of the aforesaid orders will not be an impediment for the respondents to hold an inquiry or to re- examine the issue in accordance with the mandate of Article 311 of the Constitution of India, and proceed in accordance with law, if so desired.
( K. N. Shrivastava ) ( Justice Permod Kohli )
Member (A) Chairman
/as/