Central Administrative Tribunal - Delhi
Sh. M.M. Sharma vs Union Of India Through on 10 December, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 176/2009 New Delhi this the 10th day of December, 2009 Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Mr. S.P. Singh, Member (A) Sh. M.M. Sharma, S/o Sh. T.R. Sharma, R/o 621, Mayur Vihar, Phase-I, Pocket V, Delhi-110091. Applicant. (By Advocate Shri Ranjan Kumar with Shri V.K. Singh) Versus 1. Union of India through, Secretary to Govt. of India, Cabinet Secretariat, Room No. 7, Bikaner House Annexe, Shahjahan Road, New Delhi-110011. 2. Shri Ashok Kapur, Additional Secretary to Govt. of India, Cabinet Secretariat, Room No. 7, Bikaner House Annexe, Shahjahan Road, New Delhi-110011. . Respondents. (By Advocate Shri T.C. Gupta) O R D E R
M. Ramachandran, Vice Chairman (J) The necessary facts for appreciating the question raised in this Original Application could be stated as hereinbelow.
2. The applicant was attached to RAW, Govt. of India. His initial appointment was in the year 1973 as a Senior scientific Assistant. The last phase of his tenure was at China when he was working as Director (S&T). According to the applicant, he had assumed charge with the Mission at China, on 02.07.2007. After a brief stay in a Hotel for a wekk, he had moved to the diplomatic complex situated at Thayuan.
3. He refers to his purchase of a personal computer. A few months later he had also been supplied with an additional official computer which, according to him, was being used for storage of classified data.
4. He had been recalled to India during May, 2008, and thereafter had been suspended from service, on 05.09.2008. The memo indicated that in exercise of powers conferred by Rule 10 (1) of the CCS (CCA) Rules, 1965, the President was pleased to place him under suspension. On 08.12.2008, suspension had been extended on the recommendation of the Review Committee. Two weeks thereafter, he had been dismissed from service, the memo dated 22.12.2008 advising him as following:
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 M.M. Sharma, Director (S&T) (under suspension).
And Whereas the President is satisfied that, on the basis of the information available, the activities of Shri M.M. Sharma, Director (S&T) are such as to warrant his dismissal from Service.
Accordingly, the President hereby dismisses Shri M.M. Sharma, Director (S&T) from service with immediate effect.
The President further orders that the said Shri M.M. Sharma, Director (S&T) will not be paid any pensionary benefits or compassionate allowance consequent to his dismissal from service.
(By order and in the name of the President) The above is under challenge.
5. From the documents exchanged, it may not be possible to gather what, in fact, had prompted the President to come to a decision to dismiss him in exercise of powers under Article 311 (2) (c) of the Constitution excepting to notice that Government felt it was not expedient to hold an inquiry against the officer although placed under suspension, and further that on the basis of the information available, President was satisfied that Mr. Sharma required to be dismissed from service. Although it had been held that the officer will not be paid any pensionary benefits or compassionate allowances consequent to his dismissal from service, no clue has forth come, as to what prompted the respondents to come to such a decision.
6. While challenging the order, the applicant has given some details pertaining to him, which may throw light to the circumstances, in which the impugned orders came to be issued. He states that while at Thayuan he had occasion to engage one woman, Chen Yu Cui, as a house maid to attend to the household duties. He had left his family in India, and was alone. Situated at he was, he was expected to collect information which would have been valuable to his mother country. In the course of his work, he had come to be acquainted with one Mr. A.C. Gangadharan, who was working in the province as PS to the Deputy Chief of Mission. The applicant was initially feeling himself handicapped in view of the circumstance that he did not know the local language. He refers to the steps taken by the Mission for holding a language course, and he was awaiting instructions. Mr. Gangadharan, referred to above, had also started to reside with him from August, 2007. Soon thereafter from Mr. Gangadharan, he came to acquaint himself with one lady,Julia, who had offered to teach local language to them. On agreed fee, Julia was coming regularly in the evening. For some reason not disclosed, the applicant, in the application suggests that Mr. Gangadharan possibly might have had ulterior personal intention as well for moving closely with Julia. We may not be concerned with these. But, however, it is stated that the classes continued only upto November, 2007. By that time, Julia was alternatively employed.
7. In January, 2008, Mr. Gangadharan had again introduced one lady Ms. Maggie to him, who also was interested in imparting local language to him. It is averred in the OA that Ms. Maggie was a person of loose character. It is conceded that the applicants association with Maggie continued and he had also come to know that she was a worker of the Communist Party of China and regularly attends the official meeting of the party. According to him, he had a brainwave that by closely establishing link with Ms. Maggie, he would be in a position to get some classified information of prime importance of the foreign country, ultimately to be sent over to his country.
8. He has a claim that he had disclosed about relevant developments to the Chief of Mission but, however, he had been cautioned to go slow and be very careful. The applicant submits that he also gathered the information from Ms. Maggie that she was a party worker and that she used to attend the partys meeting regularly and also that she prepares the comments on the speeches of senior party leaders after studying and perusing the same and also that she got many accolades for her job. He further submits that during his association with Ms. Maggie, he was in between the rivalry of his maid and Ms. Maggie. Both demanded his exclusive attention, and the problem reached to such an extent that Maggie wanted the maid to be immediately removed from her job and maid wanted Maggies visit to his house banned. At that time, since he did not oblige Maggie, she had taken the step of making a complaint to the Mission alleging that he had illicit relations with the maid. On the statement which came from Maggie, the higher officers had inquired about his relations. The applicant states that thereafter frequency of his meetings with Maggie was reduced; he rarely met her, but he had not completely stopped his association with Maggie because he very much wanted to gather useful information from her. Only for that reason, it is asserted that he had continued meeting her so that he could know more about the Communist Party of China.
9. The applicant in Paragraph (xv) also has disclosed the following:
That during one of the meeting (on April 5, 2008) with Maggie the applicants cellphone was accidentally kept on at Deputy Chief Missions cellphone no. for about 15 minutes and about which DCM was also aware and the DCM has also recorded it.
10. It appears that the developments have been noticed as serious, and he had been questioned by the Chief of Mission about his personal life. He had also given a written explanation to the IB. It was during this period that he had been called back to India. According to him, he had not been given any reasons whatsoever why he was called back to India. The suspension and the consequent steps of dismissal had come thereafter. If an enquiry had been held, it would have been possible for him to know what were the allegations against him, and he could have explained his position, as there was nothing alarming about his conduct.
11. The applicant contends that being a civil servant, the summary termination was against the principles of fair play, natural justice and protection envisaged by Article 311 of the Constitution. He points out that there was no cogent material with the respondents to proceed against him, and perhaps this was the reason why a decision was later on taken to short circuit the issue and exercise powers under Article 311 (1) (c). Evidently, the idea initially was to subject him to disciplinary action, as envisaged under the CCS (CCA) Rules. Mala fide, exercise of power is, therefore, apparent and proceedings cannot withstand the test of reasonableness or constitutionality. He was to retire within two years time and the summary termination even without giving him retrial benefits was an abuse of powers and could not have been sustainable, leaving him in penury and disrepute. The Tribunal, therefore, should come to his rescue, as the good work turned out by him during the best part of his life has been ignored.
12. In support of his submissions, the learned counsel had invited our attention to the judgment of Supreme Court rendered in A.K. Kaul and Anr. Vs. Union of India and Anr. (1995 (4) SCC 73). The Court was examining the sustainability of an order passed by the Central Government in exercise of powers under Article 311 (2)(c). Unlike clause (b), absence of a requirement to record reasons in clause (c) did not mean immunity from judicial review. It was held that Government is obliged to produce before the court materials on which a claim for sustaining the action is rested. Even in respect of privileged documents, it could not have been withheld as of right. A judicial review was implicit, and the court was to enter a finding about the satisfaction that had been recorded by the President, ultimately taking notice of the facts, of course. The SLP had been rejected by the Supreme Court, going by the facts.
13. Mr. T.C. Gupta appearing for the Union of India, however, submits that classified information received by the Government would have been sufficient to indicate that retention of the applicant would not have been in the interest of security of India. The counsel had led us through the written statement filed on behalf of the respondents and had also placed before us a sealed cover which was a copy of the minutes of committee of Advisor, before a final decision had been taken as against the applicant. It had been stressed that the officer had indulged in dangerous and foolhardy activities and committed grave misconduct. Although he had been initially placed under suspension, an inquiry against him under the CCS (CCA) Rules, would have had drastic, and avoidable repercussions on relations with a neighboring country.
14. Mr. Gupta submits that witnesses, if at all, might have been foreign nationals and the sensitive job for which the applicant had been deputed should require the minimum possible exposure. He submits that the power of the President under Article 311 (2) (c) is absolute, and where the President is satisfied that in the interest of security of State it is not expedient to hold an inquiry, unless there were strong circumstances to indicate otherwise, the court was not expected to interfere with such discretion. Mr. Gupta also submits that although in discretion, details had not been divuilged from the side of the Government, in his anxiety or indiscretion, the applicant had himself indicated in the OA that his conduct, although attached to the sensitive organization like RAW was not of standards expected of the official. Reading between the lines, according to the counsel, it was evident that applicant had developed intimacy with more than one person of the opposite sex and there was fight among them and certain details had been supplied by one of them to the Commissioner. The information, that might have been there given over to the applicant, by the Government and the details which he might have collected by himself, included classified secret materials. By permitting free hand to a person who was having a position in the Communist Party of China to peruse the documents without any restraint was shocking. When this practically is conceded, it was in no way possible for the applicant to contend that an inquiry nevertheless should have preceded his termination. The conduct to which the applicant had exposed himself had come to the attention of Government of India. The issue had been studied and a High Power Committee had looked into the details and on their advise the President became satisfied that an inquiry was to be avoided of course for good reasons as referred to by Article 311 (2) (c). Counsel points out that when such matters are practically admitted by the applicant as averred in the application, it would have been an empty plea for him to contend that formality of an inquiry was essentially required to be carried out. Counsel suggests that the applicant might have divulged only a part of details, and had tried to shield himself all throughout. But the circumstances would reveal that even the matters which have been disclosed by him pointed a finger against him, to hold that he was unfit to be in a sensitive position. The decision had come after a mature consideration of the facts and could not have been faulted for the reasons highlighted in the application.
15. The files relating to the applicant have not been produced by the respondents and we do not think it might be necessary for us to go through such files, as we feel that even the circumstances as now available, are sufficient for us to hold 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. The invocation of power under Article 311 (2) (c) of the Constitution also cannot be faulted because of the sensitive nature of the issues.
16. But we feel that sufficient attention had not been bestowed on the fall out of the order when it states that the applicant will not be entitled to pensionary benefits or even compassionate allowances. In a case of dismissal, ordinarily there is no question about eligibility for pensionary benefits. It has been revealed that applicant had a good record of service till he had opportunity for escapades outside India. It is averred that one Janardhan had been sailing along with him. Counsel submits that although Mr. Janardhan had been similarly treated in the initial rounds, further action had been dropped against the said officer. The Constitution has conferred powers on the President to prescribe dismissal, removal or reduction in rank to erring officers. The order does not reveal that there has been application of mind as to whether a reduction in rank, on exercise of powers under Article 311 (2) (c) would have been more befitting, in the factual scenario.
17. Therefore, we direct the Government to consider whether the penalty could be substituted as suggested above. The applicant should be communicated of the decision taken within four months from today. A former officer of the Government of India is not to bear a begging bowl for his livelihood, he may have a family to support, and the advanced age may bring him financial responsibilities. These are some of the aspects to be borne in mind while passing the follow up orders. The O.A is disposed of as above.
18. On the facts of the case, we direct that parties should suffer their respective costs.
(S.P. Singh) (M. Ramachandran) Member (A) Vice Chairman (J) `SRD