Supreme Court of India
DR. V. R. SANAL KUMARversusUNION OF INDIA & ORS.
- Citation
- 2023 INSC 526
- Decided
- 12 May 2023
- Disposal
- Dismissed
- Bench
- M R SHAH
Holding
The President’s satisfaction that an inquiry is not expedient in the interest of the security of the State, supported by material, is not open to further judicial scrutiny, and the dismissal under Rule 16(iii) is valid.
Summary
Dr. V. R. Sanal Kumar, a senior ISRO scientist, was dismissed from service under Rule 16(iii) of the Department of Space Employees (Classification, Control and Appeal) Rules, 1976, which allows dismissal without an inquiry when the President is satisfied it is not expedient in the interest of the security of the State. The appellant had taken unauthorized leave, stayed in South Korea for post‑doctoral research, and published a paper with a foreign co‑author without permission, raising concerns about the security of ISRO's rocket technology. The Central Administrative Tribunal and the Kerala High Court upheld the dismissal. The Supreme Court examined whether the President’s satisfaction under Rule 16(iii) is amenable to judicial review and whether the dismissal was lawful. Relying on the constitutional provision of Article 311(2) (second proviso, clause c) and the precedent set in Tulsiram Patel, the Court held that when material exists to support the President’s satisfaction, the decision cannot be further scrutinised, and the dismissal is valid. Consequently, the appeal was dismissed.
Issues considered
- The validity of invoking Rule 16(iii) of the CCA Rules to dismiss a government servant without an inquiry on the ground of security of the State.
- Whether the President’s satisfaction that an inquiry is not expedient in the interest of the security of the State is subject to judicial review.
- Whether the dismissal order, including its retrospective effect, is legally sustainable.
- Whether the principles of natural justice apply when the second proviso to Article 311(2) is invoked.
Legislation cited
- Constitution of Indias. Article 136, s. Article 310, s. Article 311(1), s. Article 311(2) – second proviso, clause (c)
- Department of Space Employees (Classification, Control and Appeal) Rules, 1976s. Rule 16(iii)
Subjects
service lawdismissalsecurity of the StateRule 16(iii)natural justiceISROjudicial reviewconstitutional lawcivil service
Judgment
772 [2023]
SUPREME COURT 5 S.C.R. 772
REPORTS [2023] 5 S.C.R.
A DR. V. R. SANAL KUMAR
v.
UNION OF INDIA & ORS.
(Civil Appeal No(s). 6301 of 2013)
B MAY 12, 2023
[M. R. SHAH AND C. T. RAVIKUMAR, JJ.]
Service Law:
Department of Space Employees (Classification, Control and
C Appeal) Rules, 1976 – r. 16(iii) – Special procedure in certain cases
– Dismissal from service without holding any inquiry in the interest
of the security of the State, invoking power u/r. 16 (iii) – Interference
with – Appellant, high profile scientist in Indian Space Research
Organisation-ISRO – Disciplinary proceedings against the
appellant, alleging unauthorized absence from the country for
D
taking post-doctoral research without permission and publication
of a technical paper in the Conference in USA as first author with
a foreigner as one of the co-authors, without prior permission or
approval from the competent authority – Dismissed from service
from the date of absence – However, the tribunal held that the
E dismissal of the appellant was with effect from the date of the
dismissal order, and quashed the order related to recovery of
subsistence allowance – Upheld by the High Court – On appeal,
held: When material capable of arriving at a satisfaction that it is
not expedient to hold an inquiry “in the interest of the security of
the State” are available, the decision in holding that it is inexpedient
F
“in the interest of the security of the State” to hold an inquiry
warrants no further scrutiny, rather, it is not fit to be subjected to
further judicial review – Having regard to appellant’s role as high
profile scientist in ISRO and the role of ISRO as the space agency
of India, the appellant’s unauthorized absence, unauthorized
G association and persistent dealings with foreign institution especially
in the strategic research and development subject based on which
nation’s rocketry and ambitious programs are/were advancing, was
a matter of concern for the security of the State – Respondent
organisation cannot be said to have committed a flaw or fault in
entertaining suspicion on his honesty, integrity, reliability,
H
772
DR. V. R. SANAL KUMAR v. UNION OF INDIA & ORS. 773
dependability and trustworthiness – Dismissal from the service A
cannot be said to be illegal or absolutely unwarranted – Thus,
interference u/Art. 136 not called for – Judicial review – Constitution
of India – Arts. 311(2), 136.
Dismissing the appeal, the Court
HELD: 1.1 Clause (iii) of Rule 16 of the Department of B
Space Employees (Classification, Control and Appeal) Rules,
1976 is a service rule virtually reproducing clause (c) of the
second proviso to Article 311 (2) of the Constitution of India
though the language used is not identical. The appellant did not
dispute that Rule 16 (iii) is in pari materia with clause (c) of the C
second proviso to Article 311 (2). When once it is so found, there
cannot be any doubt with respect to the position, as settled in
Tulsiram Patel’s case and reiterated in subsequent decisions, that
adherence to principles of natural justice i.e., conducting inquiry
after issuing charge sheet and providing hearing to a government
servant on those charges, in case of proposal to impose any of D
the three major penalties-dismissal, removal or reduction in rank
would not arise when the power under Rule 16 (iii) of the CCA
Rules is invoked. Bearing in mind the position of law thus revealed
it is to be considered whether judicial review is called for or not
in respect of the challenge of the appellant against his removal E
from service without holding an inquiry in invocation of the power
under Clause (iii) of Rule 16 of the CCA Rules. [Para 16][790-C-
F]
1.2 It is obvious that the appellant himself knew that he is
a high-profile scientist in ISRO, which is a highly sensitive and F
strategic research and development organisation under the
Department of Space, Government of India. The Court cannot
be an island and feign oblivion of the pivotal role of a scientist/
engineer attached to ISRO and also the role of ISRO as the space
agency of India. Obviously, it is involved in science, engineering
and technology to harvest the benefits of outer space for India. G
The appellant is a scientist/engineer in the VSSC,
Thiruvananthapuram of ISRO. After applying for sabbatical leave
for one year and when the competent authority decided not to
recommend the leave in exigency of service, he applied for nine
days’ earned leave from 21.08.2003 to 29.08.2003 on personal H
774 SUPREME COURT REPORTS [2023] 5 S.C.R.
A grounds and then went to South Korea. On reaching South Korea,
through e- mail dated 01.09.2003, the appellant intimated his
Divisional Head in VSSC regarding his arrival in South Korea to
carry out his post-doctoral research and to assist Prof. H.D. Kim,
Head of School of Mechanical Engineering, Andong National
University, South Korea. Though his application dated 18.07.2003
B
was not sanctioned, through another e-mail, he applied for 89
days’ leave from 01.09.2003 to 28.11.2003 and continued to stay
in South Korea despite being informed that his leave was not
sanctioned and was required to report for duty not later than
11.09.2003. It is also to be noted that before going to South Korea
C to join the aforesaid University, he had published a technical paper
as first author with a foreigner as one of the co-authors in the
39th American Institute of Aeronautics and Astronautics (AIAA)
Joint Propulsion Conference, USA, without obtaining approval
of the competent authority. Though he rejoined duty on
27.03.2004 with full knowledge that his application for sabbatical
D
leave was not sanctioned he left for South Korea in March, 2004
without giving information to and obtaining permission from the
organization. He re-joined duty on 18.05.2004 and then, went
back to South Korea on 28.05.2004 without permission from the
authorities. The said factual aspects would reveal that without
E permission from the competent authority the appellant went to
South Korea, joined Andong National University, South Korea
and assisted Prof. H.D. Kim, Head of School of Mechanical
Engineering and kept on his association with the said foreign
institution involved in the research on rocketry, which is a
strategic research and development subject in ISRO. Annexure-
F
P1 letter dated 28.08.2002 from Prof. H.D. Kim to himself,
produced by the appellant, would reveal the nature of the research
project in the laboratory of Prof. H.D. Kim and Annexure P4 would
reveal the repeated advice to the appellant not to have any contact
in future with any external agency, such as Andong National
G University, South Korea, without permission from appropriate
authorities in ISRO. The further indisputable facts would reveal
his persistent dealings with that University ignoring such
instructions. In such circumstances, his continued association
with a foreign agency/university, ignoring the fact that he is a
responsible scientist in the ISRO, which is a highly sensitive and
H
DR. V. R. SANAL KUMAR v. UNION OF INDIA & ORS. 775
strategic research and development organization under the A
Department of Space, Government of India, if viewed suspiciously
and thought that his further exposure to ISRO’s critical rocket
technologies would create serious complications, it cannot be
said to be bereft of substance and not a matter of concern in
regard to the security of the State. Taking into account the
B
expertise of the appellant in the particular branch and that he has
been working under ISRO since 1992, there cannot be any doubt
with respect to the experience which he gathered in the subject
from ISRO and in such circumstances leaving to a foreign country
without prior permission and continuing there for a considerable
long period despite advice and instructions to come back and C
continuing to associate with such a foreign organisation/university
researching on rocketry, the respondent organisation cannot be
said to have committed a flaw or fault in entertaining suspicion
on his honesty, integrity, reliability, dependability and
trustworthiness and above all to treat such acts as a matter of
D
concern in relation to the security of the State. [Para 21][793-F-
H; 794-A-H; 795-A-C]
1.3 Rule 16 (iii) of the CCA Rules requires no analytical
approach to understand that it contains two limbs. Firstly, to attract
it requires the satisfaction of the President that “in the interest
of the security of the State” it is not expedient to hold any inquiry E
in the manner provided in the CCA Rules. The second limb
enables the disciplinary authority to consider, having regard to
the circumstances of the case to consider and make such orders
thereon, as it deems fit. In the instant case, in invocation of the
provision of Rule 16 (iii) of the CCA Rules, order was passed F
dismissing the appellant from service with effect from 01.09.2003
without conducting inquiry upon the satisfaction of the President
that it is not expedient to hold any inquiry in the manner provided
in the CCA Rules “in the interest of the security of the State”.
[Para 22][795-D-F]
G
1.4 There is no hesitation to hold that a bare perusal of the
order of the tribunal would reveal that the tribunal had considered
the question not confining its consideration only to Rule 16 (iii)
of the CCA Rules but also taking into consideration the source
of power derived from the second proviso to Article 311 (ii) of
H
776 SUPREME COURT REPORTS [2023] 5 S.C.R.
A the Constitution of India. Obviously, the question whether it is
expedient to hold an inquiry as provided under the CCA Rules
has to be considered and the satisfaction as to its expediency or
inexpediency has to be reached based on “interest of the security
of the State”. The meaning and scope of the expression ‘security
of the State’ has been considered by the Constitution Bench in
B
Tulsiram Patel’s case. [Para 23][796-B-C]
1.5 There is absolutely no reason to hold that the satisfaction
that it is not expedient to hold an inquiry “in the interest of
security of the State” was arrived at without any material. When
once it is obvious that circumstances based on materials capable
C of arriving at a satisfaction that it is not expedient to hold an
inquiry “in the interest of the security of the State” are available
the decision in holding that it is inexpedient “in the interest of
the security of the State” to hold an inquiry warrants no further
scrutiny, rather, it is not fit to be subjected to further judicial
D review. In other words, the Court cannot, in such circumstances,
judge on the expediency or inexpediency to dispense with the
inquiry as it was arrived at based on the subjective satisfaction of
the President based on materials. Thus, there is no reason to
interfere with the disinclination on the part of the tribunal and
then the High Court, on the said issue. [Para 24][797-D-F]
E
1.6 The retrospectivity given to the order of dismissal from
01.09.2003-the date of absence was interfered with, by the
tribunal. It has become final and it was given effect to by the
respondent organization by modifying the date of its effect from
the date of the order of dismissal. Though it has been held that
F such an order would be open to challenge on the ground of mala
fides or being based wholly on extraneous grounds, it is relevant
to note that in the case on hand, the order of dismissal is not put
to challenge on any of such grounds. Furthermore, it has been
held that the disciplinary authority while deciding the question
G as to what penalty should be imposed on the delinquent employee
in the facts and circumstances of a particular case would have to
take into account the entire conduct of the delinquent employee,
a gravity of the misconduct committed by him, the impact which
his misconduct is likely to have on the administration and other
H
DR. V. R. SANAL KUMAR v. UNION OF INDIA & ORS. 777
extenuating circumstances or redeeming features if any present A
in the case and so on and so forth. Such aspects were looked into
by the tribunal. The acts and omissions on the part of the appellant
having regard to his role as a scientist/engineer in ISRO and the
role of ISRO as the space agency of India have been referred. It
is not the mere unauthorized absence of the appellant that actually
B
weighed with the authority and evidently, the organization is
perfectly justified in casting suspicion on the honesty, integrity,
reliability, dependability and trustworthiness in view of the factual
situation obtained in this case, as explained in the counter affidavit,
besides entertaining the stand that his unauthorized association
with foreign institution, especially in the area of propulsion, which C
is a strategic research and development subject in the
organization and based on which the nation’s rocketry and
ambitious launch vehicle programs are/were advancing, was a
matter of concern for the security of the State. When such acts/
conduct occur/occurs from a scientist in a sensitive and strategic
D
organization, the decision to impose dismissal from service cannot
be said to be illegal or absolutely unwarranted. There is no reason
to hold that the judgment of the High Court, dismissing the
challenge against the order of the tribunal warrants any kind of
interference in exercise of the power under Article 136 of the
Constitution of India. [Para 25][797-G-H; 798-A-D-H; 799-A] E
Union of India and Anr. v. Tulsiram Patel and Ors. (1985)
3 SCC 398 : [1985] 2 Suppl. SCR 131 – followed.
Southern Rly. & Anr. v. T.R. Chellappan 1976 3 SCC
190 : [1976] 1 SCR 783 – relied on.
F
Divisional Personnel Officer,Union of India v. Balbir
Singh (1998) 5 SCC 216; A.K. Kaul v. Union of India
(1995) 4 SCC 73 : [1995] 3 SCR 469; Union of India
v. M.M. Sharma (2011) 11 SCC 293 : [2011] 6 SCR 18
– referred to.
G
Case Law Reference
(1998) 5 SCC 216 referred to Para 12
[1995] 3 SCR 469 referred to Para 12
[2011] 6 SCR 18 referred to Para 14
H
778 SUPREME COURT REPORTS [2023] 5 S.C.R.
A [1985] 2 Suppl. SCR 131 followed Para 16, 23, 25
[1976] 1 SCR 783 relied on Para 25
CIVIL APPELLATE JURISDICTION : Civil Appeal No.6301
of 2013.
B From the Judgment and Order dated 16.01.2012 of the High Court
of Kerala at Ernakulam in WP (C) No.33421of 2008 (S).
Gopal Sankaranarayanan, S. N. Bhat, Sr. Advs., Ms. Malini
Poduval, Ms. Babita Sant, Savya Sachi Narayanan, Advs. for the
Appellant.
C K. M. Nataraj, A.S.G., Shailesh Madiyal, Vinayaka S. Pandit,
Sharath Nambiar, Mohd. Akhil, Indira Bhakar, T. S. Sabarish, Annirudh
Sharma – II, Amrish Kumar, Krishan Pal Mavi, Ms. Binu Tamta, Advs.
for the Respondents.
The Judgment of the Court was delivered by
D
C. T. RAVIKUMAR, J.
1. The petitioner in W.P. (C) No.33421 of 2008, who is
unsuccessful in his challenge against the order of his dismissal from
service without inquiry in the interest of the security of the State, filed
this appeal by Special Leave against the judgment dated 16.01.2012
E passed thereon, by the High Court of Kerala. As per the impugned
judgment the High Court dismissed the challenge against the order dated
30.09.2008 of the Central Administrative Tribunal, Ernakulam Bench in
O.A. No. 653 of 2007.
2. Compendiously stated, the case that culminated in the impugned
F judgment is as follows:
The appellant was initially appointed as Scientist/Engineer ‘SC’ in
Group-A in Vikram Sarabhai Space Centre (‘VSSC’ for brevity),
Thiruvananthapuram of the Indian Space Research Organisation (‘ISRO’
for brevity), on 15.01.1992. On 01.07.1999, he was promoted as Scientist/
G Engineer ‘SD’. While so, on 28.08.2002, the appellant was invited by
Prof. H.D. Kim, Head of School of Mechanical Engineering, Andong
National University, South Korea, to join as a post-doctoral trainee and
to assist him for one year, recognizing the appellant as a well-known
expert on the starting and transient flows in the Solid Rocket Motors.
H On 18.07.2003, the appellant applied for sabbatical leave for one year.
DR. V. R. SANAL KUMAR v. UNION OF INDIA & ORS. 779
[C. T. RAVIKUMAR, J.]
The competent Authority decided not to recommend the leave in the A
exigency of service and in public interest. The appellant applied for 9
days Earned Leave from 21.08.2003 to 29.08.2003 on personal grounds
and soon went to South Korea. Through e-mail dated 01.09.2003, he
intimated his Divisional Head in VSSC that due to the delay in processing
his request for leave, he reached South Korea to carry out his post-
B
doctoral research at Andong National University in South Korea. The
appellant sent another leave application, through e-mail, for 89 days from
01.09.2003 to 28.11.2003. As per e-mail dated 05.09.2003, the appellant
was informed that his leave was not sanctioned and he was required to
report for duty not later than 11.09.2003. Meanwhile, the respondent
organization came to know that the appellant had published a technical C
paper as first author with a foreigner as one of the co-authors in the 39th
American Institute of Aeronautics and Astronautics (AIAA) Joint
Propulsion Conference, USA held during July, 2003, without obtaining
specific approval of the Competent Authority. Thereupon, disciplinary
action was initiated against the appellant and he was charge-sheeted on
D
19.12.2003 for unauthorized absence and publication of papers without
following due procedure or obtaining approval of the Competent Authority.
3. The appellant re-joined duty on 23.01.2004 and again left for
South Korea in March, 2004 without any information to the Organization
or its permission. Though he attended the preliminary hearing in the
departmental inquiry, he had chosen not to take part in further E
proceedings. Ergo, the inquiry was conducted ex-parte and the copy of
the Inquiry Report holding the charges as proved submitted by the Inquiry
Officer, was sent to him.
4. Meanwhile, the appellant unsuccessfully preferred two Original
Applications before the Central Administrative Tribunal viz., O.A. Nos. F
150/2004 and 529/2004. Later, he came back to India and re-joined duty
on 18.05.2004. Again, the appellant went back to South Korea on
28.05.2004 without obtaining permission from the authorities.
Consequently, as per Order dated 13.07.2004 he was suspended from
service pending disciplinary action. Ultimately, as per Order dated G
11.08.2007, the appellant was dismissed from service with effect from
01.09.2003 under clause (iii) of Rule 16 of Department of Space
Employees’ (Classification, Control and Appeal) Rules, 1976, hereinafter
referred for short ‘the CCA Rules’. Vide Order dated 13.08.2007, the
appellant was asked to refund the subsistence allowance drawn after
H
780 SUPREME COURT REPORTS [2023] 5 S.C.R.
A 01.09.2003, as he was dismissed w.e.f. 01.09.2003. The appellant filed
O.A. No. 653 of 2007 seeking quashment of the order of dismissal from
service and also order directing refund of subsistence allowance drawn
after 01.09.2003 besides seeking order for re-instating him in service.
As per Order dated 30.09.2008, the Tribunal partly allowed the O.A.
Though the order of dismissal of the appellant was sustained, the Tribunal
B
annulled the grant of retrospectivity to it from 01.09.2003. In other words,
its effect was ordered to take only from the date of the order viz.,
11.08.2007. As a necessary sequel to the annulment of retrospectivity, it
was ordered that there should be no recovery of subsistence allowance
and hence, the order dated 13.08.2007 for recovery of subsistence
C allowance was quashed. Naturally, the prayer or reinstatement in service
was rejected.
5. Both the appellant and the respondent Organization assailed
the order of the Tribunal in O.A. No. 653 of 2007 before the High Court.
The respondent Organization filed W.P. (C) No. 4918/2008, essentially
D challenging the order in O.A. No.653 of 2007 to the extent of effacing
the retrospective effect of the order of dismissal of the appellant herein
from 01.09.2003 and restricting its effect only from the date of the order
viz., 11.08.2007 and restraining recovery of subsistence allowance. The
appellant herein filed W.P. (C) No.33421 of 2008 aggrieved by the
disinclination to quash the order of dismissal and to order for his
E reinstatement in service. The High Court dismissed W.P. (C) No.33421
of 2008 as per the impugned judgment and hence, this appeal by special
leave. It is required to be noted that subsequently, as per judgment dated
16.02.2009 the High Court dismissed W.P. (C) No.4918 of 2008 filed by
the respondent Organisation and consequently, the order dated 31.05.2010
F was issued giving effect to the order of the Tribunal in O.A. No.653 of
2007 and modifying the date of effect of the order of dismissal from the
very date of the same.
6. Heard, Shri Gopal Sankaranarayanan, learned Senior Advocate
appearing for the appellant and Shri Shailesh Madiyal, learned counsel
G for respondent Nos.1 to 4.
7. Indisputably, the appellant was dismissed form service without
any inquiry in the manner provided in ‘the CCA Rules’ invoking the
power under clause (iii) of Rule 16 of CCA Rules, which reads thus: -
“16. Special Procedure in certain cases
H
DR. V. R. SANAL KUMAR v. UNION OF INDIA & ORS. 781
[C. T. RAVIKUMAR, J.]
Notwithstanding anything contained in Rules 11 to 15 A
–
(i) where any penalty is imposed on an employee on the
ground of conduct which has led to his conviction on a
criminal charge; or
(ii) where the Disciplinary Authority is satisfied for reasons B
to be recorded by it in writing that it is not reasonably
practicable to hold an inquiry in the manner provided
in these Rules; or
(iii) where the President is satisfied that in the interest of
the security of the State, it is not expedient to hold any C
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: Provided that the employee may be given
an opportunity of making representation on the penalty D
proposed to be imposed before any order is made in a
case under Clause (i):
Provided further that the Commission shall be consulted,
where such consultation is necessary, before any orders
are made in any case under this Rule.” E
8. A bare perusal of the afore-quoted provision and the second
proviso to Article 311 (2) of the Constitution of India would undoubtedly
go to show that the former is virtually a service rule reproducing the
second proviso almost in whole though the language used is not identical.
It is to be noted that even according to the appellant, Rule 16 (iii) of the F
CCA Rules is in pari materia to clause (c) of the second proviso to
Article 311 (2) of the Constitution of India. As noticed hereinbefore, the
dismissal of the appellant from service invoking the aforesaid power
was upheld by the Central Administrative Tribunal and it also got the
seal of approval from the High Court. Therefore, the question is whether
G
it requires a further judicial review at the hands of this Court in exercise
of power under Article 136 of the Constitution of India based on the
various contentions raised by the appellant. The position with respect to
the non-requirement of adherence to the principles of natural justice by
complying with the mandate under Article 311(2) viz., holding an inquiry
in which a person holding a civil post as referred to in Article 311(1) is H
782 SUPREME COURT REPORTS [2023] 5 S.C.R.
A informed of the charges against him and given an opportunity of being
heard in respect of those charges when the second proviso to Article
311 (2) of the Constitution of India comes into play in the matter of
dismissal, removal or reduction in rank and other facets in such eventuality
have been considered by a Constitution Bench of this Court in Union of
India and Anr. v. Tulsiram Patel and Ors.1. The exposition of laws on
B
such aspects thereunder have been reiterated many a times thereafter
by this Court. The decision in Tulsiram Patel’s case (supra) would
reveal the position that compliance with the mandate under Article 311
(2) and in that regard, issuance of charge sheet and hearing on the charges
to be given to a Government servant, with respect to any of the aforesaid
C three major penalties proposed to be imposed upon him, would not arise
when clause (c) of the second proviso to Article 311 (2) comes into play
and the same would be the position in the case of service rules reproducing
the second proviso in whole or in part and whether the language used is
identical with that used in the second proviso or not.
D 9. It was also held in Tulsiram Patel’s case (supra) that clause
(c) of second proviso to Article 311 (2) is based on public policy and is in
public interest and for the public good and the Constitution makers who
inserted Article 311 (2) were the best persons to decide whether such
an exclusionary provision should be there and the situations in which this
provision should apply. Furthermore, it was held therein that the law laid
E down in the decision in Divisional Personnel Officer, Southern Rly. &
Anr. v. T.R. Chellappan2 that having regard to the meaning of the word
used in the context of the phrase “the Disciplinary Authority may consider
the circumstances of the case and make such orders thereon as it deems
fit” under Rule 14(1) of the Railway Servants (Discipline and Appeal)
F Rules, 1968, that an objective consideration is possible “only if the
delinquent employee is heard and is given a chance to satisfy the authority
regarding the final orders that may be passed by the said authority” is
not acceptable. With reference to the phrase “this clause shall not apply”
in second proviso to Article 311 (2) was held to be containing the key
words in the second proviso and they would govern each and every
G clause thereof and ultimately held that this phrase would leave no scope
for any kind of opportunity to be given to a Government servant. It was
also held that it would take away both the rights to have an inquiry held
in which the Government servant would be entitled to a charge sheet
1
(1985) 3 SCC 398
2
H 1976 3 SCC 190
DR. V. R. SANAL KUMAR v. UNION OF INDIA & ORS. 783
[C. T. RAVIKUMAR, J.]
and also the right to make a representation on the proposed penalty. In A
Tulsiram Patel and Ors. (supra), this Court further held that “interest
of security of the State” might be affected by actual acts or even the
likelihood of such acts taking place. The satisfaction of the President or
Governor, as the case may be, must be with respect to the expediency
or inexpediency of holding an inquiry in the interest of the security of the
B
State and an inquiry in which such an act would lead to disclosure of
sensitive information and also the use of information and hence such an
inquiry into the acts would be prejudicial to the interest of the security of
the State as much as those acts would, it was held.
10. The relevant recitals where the Constitution Bench observed
and laid down the aforementioned positions of law in Tulsiram Patel’s C
case (supra) are as hereunder: -
“59. The position, therefore, is that the pleasure of the
President or the Governor is not required to be exercised by
either of them personally, and that is indeed obvious from the
language of Article 311. Under clause (1) of that article a D
government servant cannot be dismissed or removed by an
authority subordinate to that by which he was appointed. The
question of an authority equal or superior in rank to the
appointing authority cannot arise if the power to dismiss or
remove is to be exercised by the President or the Governor E
personally. Clause (b) of the second proviso to Article 311
equally makes this clear when the power to dispense with an
inquiry is conferred by it upon the authority empowered to
dismiss, remove or reduce in rank a government servant in a
case where such authority is satisfied that for some reason,
to be recorded by that authority in writing, it is not reasonably F
practicable to hold such inquiry, because if it was the personal
satisfaction of the President or the Governor, the question of
the satisfaction of any authority empowered to dismiss or
remove or reduce in rank a government servant would not
arise. Thus, though under Article 310 (1) the tenure of a G
government servant is at the pleasure of the President or the
Governor, the exercise of such pleasure can be either by the
President or the Governor acting with the aid and on the
advice of the Council of Ministers or by the authority specified
in Acts made under Article 309 or in rules made under such
H
784 SUPREME COURT REPORTS [2023] 5 S.C.R.
A Acts or made under the proviso of Article 309; and in the
case of clause (c) of the second proviso to Article 311 (2), the
inquiry is to be dispensed with not on the personal satisfaction
of the President or the Governor but on his satisfaction arrived
at with the aid and on the advice of the Council of Ministers.”
B “101... As pointed out above, clause (2) of Article 311
embodies in express words the audi alteram partem rule. This
principle of natural justice having been expressly excluded
by a constitutional provision, namely, the second proviso to
clause (2) of Article 311, there is no scope for reintroducing
it by a side-door to provide once again the same inquiry which
C the constitutional provision has expressly prohibited. Where
a clause of the second proviso is applied on an extraneous
ground or a ground having no relation to the situation
envisaged in that clause, the action in so applying it would
be mala fide, and, therefore, void. In such a case the
D invalidating factor may be referable to Article 14. This is,
however, the only scope which Article 14 can have in relation
to the second proviso, but to hold that once the second proviso
is properly applied and clause (2) of Article 311 excluded,
Article 14 will step in to take the place of clause (2) would be
to nullify the effect of the opening words of the second proviso
E and thus frustrate the intention of the makers of the
Constitution…”
“114. So far as Challappan case is concerned, it is not possible
to find any fault either with the view that neither clause (a) of
the second proviso to Article 311 (2) nor clause (i) of Rule 14
F of the Railway Servants Rules is mandatory or with the
considerations which have been set out in the judgment as
being the considerations to be taken into account by the
disciplinary authority before imposing a penalty upon a
delinquent government servant. Where a situation envisaged
G in one of the three clauses of the second proviso to Article
311 (2) or of an analogous service rule arises, it is not
mandatory that the major penalty of dismissal, removal or
reduction in rank should be imposed upon the concerned
government servant. The penalty which can be imposed may
be some other major penalty or even a minor penalty
H
DR. V. R. SANAL KUMAR v. UNION OF INDIA & ORS. 785
[C. T. RAVIKUMAR, J.]
depending upon the facts and circumstances of the case. In A
order to arrive at a decision as to which penalty should be
imposed, the disciplinary authority will have to take into
consideration the various factors set out in Challappan case.
It is, however, not possible to agree with the approach adopted
in Challappan case in considering Rule 14 of the Railway
B
Servants Rules in isolation and apart from the second proviso
to Article 311 (2), nor with the interpretation placed by it
upon the word ‘consider’ in the last part of Rule 14. Neither
Rule 14 of the Railway Servant Rules nor a similar rule in
other service rules can be looked at apart from the second
proviso to Article 311 (2). The authority of a particular officer C
to act as a disciplinary authority and to impose a penalty
upon a government servant is derived from rules made under
the proviso to Article 309 or under an Act referable to that
article. As pointed out earlier, these rules cannot impinge upon
the pleasure of the President or the Governor of a State, as
D
the case may be, because they are subject to Article 310(1).
Equally, they cannot restrict the safeguards provided by clauses
(1) and (2) of Article 311 as such a restriction would be in
violation of the provisions of those clauses. In the same way,
they cannot restrict the exclusionary impact of the second
proviso to Article 311 (2) because that would be to impose a E
restriction upon the exercise of pleasure under Article 310
(1) which has become free of the restrictions placed upon it
by clause (2) of Article 311 by reason of the operation of the
second proviso to that clause. The only cases in which a
government servant can be dismissed, removed or reduced in
F
rank by way of punishment without holding an inquiry
contemplated by clause (2) of Article 311 are the three cases
mentioned in the second proviso to that clause…”
“…It is thus obvious that the word ‘consider’ in its ordinary
and natural sense is not capable of the meaning assigned to
it in Challappan case. The consideration under Rule 14 of G
what penalty should be imposed upon a delinquent railway
servant must, therefore, be ex parte and where the disciplinary
authority comes to the conclusion that the penalty which the
facts and circumstances of the case warrant is either of
dismissal or removal of reduction in rank, no opportunity of H
786 SUPREME COURT REPORTS [2023] 5 S.C.R.
A showing cause against such penalty proposed to be imposed
upon him can be afforded to the delinquent government
servant. Undoubtedly, the disciplinary authority must have
regard to all the facts and circumstances of the case as set
out in Challappan case. As pointed out earlier, considerations
of fair play and justice requiring a hearing to be given to a
B
government servant with respect to the penalty proposed to
be imposed upon him do not enter into the picture when the
second proviso to Article 311 (2) comes into play and the
same would be the position in the case of a service rule
reproducing the second proviso in whole or in part and
C whether the language used is identical with that used in the
second proviso or not. There are a number of orders which
are of necessity passed without hearing the party who may
be affected by them. For instance, courts of law can and often
do pass ex parte ad interim orders on the application of a
plaintiff, petitioner or appellant without issuing any notice to
D
the other side or hearing him. Can it, therefore, be contended
that the judge or judges, as the case may be, did not apply
his or their mind while passing such an order?
“115. The decision in Challappan case is, therefore, not
correct with respect to the interpretation placed by it upon
E Rule 14 of the Railway Servants Rules and particularly upon
the word ‘consider’ occurring in the last part of that rule and
in interpreting Rule 14 by itself and not in conjunction with
the second proviso to Article 311 (2). Before parting with
Challappan case, we may, also point out that case never held
F the field. The judgment in that case was delivered on September,
15, 1975, and it was reported in (1976) 1 SCR at pages 783
ff*. Hardly was that case reported then in the next group of
appeals in which the same question was raised, namely, the
three civil appeals mentioned earlier, an order of reference to
a larger Bench was made on November 18, 1976. The
G correctness of Challappan case was, therefore, doubted from
the very beginning.”
“126. As pointed out earlier, the source of authority of a
particular officer to act as a disciplinary authority and to
dispense with the inquiry is derived from the service rules
H
DR. V. R. SANAL KUMAR v. UNION OF INDIA & ORS. 787
[C. T. RAVIKUMAR, J.]
while the source of his power to dispense with the disciplinary A
inquiry is derived from the second proviso to Article 311 (2).
There cannot be an exercise of a power unless such power
exists in law. If such power does not exist in law, the purported
exercise of it would be an exercise of a non-existent power
and would be void. The exercise of a power is, therefore,
B
always referable to the source of such power and must be
considered in conjunction with it. The Court’s attention in
Challappan case was not drawn to this settled position in law
and hence the error committed by it in considering Rule 14 of
the Railway Servants Rules by itself and without taking into
account the second proviso to Article 311 (2). It is also well C
settled that where a source of power exists, the exercise of
such power is referable only to that source and not to some
other source under which were that power exercised, the
exercise of such power would be invalid and without
jurisdiction. Similarly, if a source of power exists by reading
D
together two provisions, whether statutory or constitutional,
and the order refers to only one of them, the validity of the
order should be upheld by construing it as an order passed
under both those provisions. Further, even the mention of a
wrong provision or the omission to mention the provision
which contains the source of power will not invalidate an E
order where the source of such power exists. (See Dr. Ram
Manohar Lohia v. State of Bihar and Municipal Corporation
of the City of Ahmedabad v. Ben Hiraben Manilal) The
omission to mention in the impugned orders the relevant clause
of the second proviso or the relevant service rule will not,
F
therefore, have the effect of invalidating the orders and the
orders must be read as having been made under the applicable
clause of the second proviso to Article 311 (2) read with the
relevant service rule.”
11. In paragraph 144 therein it was held as under: -
G
“144. It was further submitted that what is required by clause
(c) is that the holding of the inquiry should not be expedient
in the interest of the security of the State and not the actual
conduct of a government servant which would be the subject-
matter of the inquiry. This submission is correct so far as it
H
788 SUPREME COURT REPORTS [2023] 5 S.C.R.
A goes but what it overlooks is that in an inquiry into acts
affecting the interest of the security of the State, several matters
not fit or proper to be made public, including the source of
information involving a government servant in. such acts,
would be disclosed and thus in cases such as these an inquiry
into acts prejudicial to the interest of the security of the State
B
would prejudice the interest of the security of the State as
much as those acts would.”
12. In the decision in Union of India v. Balbir Singh3, this Court
referred to the earlier decision in A.K. Kaul v. Union of India4, in
paragraph 7 as under: -
C
“7. In the case of A.K. Kaul v. Union of India [(1995) 4 SCC
73 : 1995 SCC (L&S) 922 : (1995) 30 ATC 174] this Court
has examined the extent of judicial review permissible in
respect of an order of dismissal passed under second proviso
clause (c) of Article 311(2) of the Constitution. This Court
D has held that the satisfaction of the President can be examined
within the limits laid down in S.R. Bommai v. Union of
India [(1994) 3 SCC 1]. The order of the President can be
examined to ascertain whether it is vitiated either by mala
fides or is based on wholly extraneous and/or irrelevant
E grounds. The court, however, cannot sit in appeal over the
order, or substitute its own satisfaction for the satisfaction of
the President. So long as there is material before the President
which is relevant for arriving at his satisfaction as to action
being taken under clause (c) to the second proviso to Article
311(2), the court would be bound by the order so passed.
F This Court has enumerated the scope of judicial review of
the President’s satisfaction for passing an order under clause
(c) of the second proviso to Article 311(2). The Court has
said, (1) that the order would be open to challenge on the
ground of mala fides or being based wholly on extraneous
G and/or irrelevant grounds; (2) 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; (3) the truth or correctness of
3
(1998) 5 SCC 216
4
H (1995) 4 SCC 73
DR. V. R. SANAL KUMAR v. UNION OF INDIA & ORS. 789
[C. T. RAVIKUMAR, J.]
the material cannot be questioned by the court nor will it go A
into the adequacy of the material and it will also not substitute
its opinion for that of the President; (4) 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; (5) the court will not lightly presume
B
abuse or misuse of power and will make allowance for the
fact that the President and the Council of Ministers are the
best judge of the situation and that they are also in possession
of information and material and the Constitution has trusted
their judgment in the matter; (6) this does not mean that the
President and the Council of Ministers are the final arbiters C
in the matter or that their opinion is conclusive. (cf. also Union
Territory, Chandigarh v. Mohinder Singh [(1997) 3 SCC 68:
1997 SCC (L&S) 633].)”
13. In paragraph 8 thereof, it was further held thus: -
“8. If an order passed under Article 311(2) proviso (c) is D
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 circumstances on which the
satisfaction of the President or the Governor is based; and if E
it finds that the said circumstances have no bearing
whatsoever 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.”
F
14. In the decision in Union of India v. M.M. Sharma5, this
Court held that dismissal without an inquiry in the interest of national
security under clause (c) of the second proviso to Article 311 (2) of the
Constitution did not require recording of reasons for dispensing with the
inquiry. At the same time, it was held that there were records to indicate
that there are sufficient and cogent reasons for dispensing with the inquiry G
in the interest of the security of the State. In paragraph 28 thereof, it
was held that, the power to be exercised under sub-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
5
(2011) 11 SCC 293 H
790 SUPREME COURT REPORTS [2023] 5 S.C.R.
A communicate the reasons for imposing the penalty of dismissal and not
any other penalty.
15. In paragraph 30, it was held thus: -
“30. If in terms of the mandate of the Constitution, the
communication of the charge and holding of an enquiry could
B 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
C in passing the impugned order.”
16. After carefully going through the provisions under Clause (iii)
of Rule 16 of the CCA Rules, we have already found, as concurrently
found by the Central Administrative Tribunal and the High Court, that
the said provision is a service rule virtually reproducing clause (c) of the
D second proviso to Article 311 (2) of the Constitution of India though the
language used is not identical. We have also noted that the appellant did
not dispute that Rule 16 (iii) is in pari materia with clause (c) of the
second proviso to Article 311 (2). When once it is so found, there cannot
be any doubt with respect to the position, as settled in Tulsiram Patel
and Ors. (supra) and reiterated in subsequent decisions, that adherence
E to principles of natural justice i.e., conducting inquiry after issuing charge
sheet and providing hearing to a government servant on those charges,
in case of proposal to impose any of the aforesaid three major penalties
would not arise when the power under Rule 16 (iii) of the CCA Rules is
invoked. Bearing in mind the position of law thus revealed from the
F aforementioned decisions, we will consider whether judicial review is
called for or not in respect of the challenge of the appellant against his
removal from service without holding an inquiry in invocation of the
power under Clause (iii) of Rule 16 of the CCA Rules, with reference to
the factual backdrop of this case.
G 17. Manifold contentions have been raised by Shri Gopal
Sankaranarayanan, learned Senior Advocate appearing for the appellant
to contend that both the Tribunal and the High Court had fallen in error
in upholding the order of dismissal passed without conducting an inquiry
in invocation Clause (iii) of Rule 16 of the CCA Rules. It is the contention
of the learned Senior Advocate that indisputably in this case on 19.12.2003,
H
DR. V. R. SANAL KUMAR v. UNION OF INDIA & ORS. 791
[C. T. RAVIKUMAR, J.]
the Under Secretary to the Government of India served a Memorandum A
along with article of charges and statement of imputation under Article
11 of the CCA Rules to the appellant for the purpose of conducting
departmental inquiry, alleging commission of two charges, namely (i)
unauthorized absence from 01.09.2003 to leave the country for taking
post-doctoral research without permission and (ii) publication of a
B
technical paper during July, 2003 in AIAA Propulsion Conference, USA
as first author with a foreigner as one of the co-authors, without prior
permission or approval from the competent authority. The contention is
that the appellant participated in the preliminary hearing and thereafter,
the matter was proceeded ex-parte and that the inquiry report was
thereafter served on him and a copy of the same was also forwarded to C
the Union Public Service Commission for its remarks, but the said
proceedings had not reached its logical end. In other words, it is submitted
that without finalizing the same and if at all necessary to issue a further
charge on additional imputation a short cut was adopted abruptly, by
invoking the powers under clause (iii) of Rule 16 of the CCA Rules to
D
dismiss the appellant from service without holding inquiry. This, according
to the appellant, is impermissible in law and, therefore, the non-
interference with the order of dismissal by the Tribunal and then by the
High Court could not be sustained. It is also the contention that there is
no justification in holding that it is not expedient to conduct an inquiry in
terms of Rule 16 (iii) of CCA Rules after deciding to conduct an inquiry E
and in fact, actually conducting an inquiry. It is also the contention that
the order of dismissal dated 11.08.2007 on the face of it did not reflect
the satisfaction of the President that in the interest of the security of the
State, it is not expedient to hold an inquiry. It is the further contention
that though the records of the cases were placed before the Tribunal, it
F
had not exercised its jurisdiction to conduct a judicial review of the
substantive satisfaction required to pass an order under Rule 16 (iii) of
the CCA Rules. It is submitted that the High Court too, had failed in
examining that aspect, though the said point was argued before the High
Court.
18. Per contra, Shri Shailesh Madiyal, learned counsel for G
respondent Nos.1 to 4 would submit that the Central Administrative
Tribunal as also the High Court had correctly appreciated the
circumstances that led to the invocation of the power under Rule 16 (iii)
of the CCA Rules for dismissing the appellant from service without
conducting an inquiry. It is submitted that the contentions of the appellant H
792 SUPREME COURT REPORTS [2023] 5 S.C.R.
A that having initiated disciplinary proceedings under Rule 11 of the CCA
Rules vide Memorandum dated 19.12.2003 for the twin specific
charges,(referred hereinbefore) inexpediency to hold an inquiry could
not have been and should not have been assigned as a reason to invoke
the power under Rule 16 (iii) of the CCA Rules to dismiss him from
service as per Order dated 11.08.2007 and that it is a short cut move,
B
are absolutely unsustainable in view of the indisputable facts and
circumstances obtained in this case. It is submitted that the proceedings
initiated by Memorandum dated 19.12.2003 under Rule 11 of the CCA
Rules and the proceedings which culminated in the dismissal of the
appellant under Rule 16 (iii) of the CCA Rules are distinct. In the
C proceedings initiated under Rule 11, inquiry was conducted and the
appellant was also afforded with reasonable opportunity, adhering to the
principles of natural justice. However, other violations of serious nature
came to light subsequently, causing serious doubt about the appellant’s
integrity, honesty, reliability, dependability and trustworthiness, which are
quintessential qualities expected in all Scientists/Engineers of ISRO, which
D
is a strategically important organisation. Going by the counter affidavit
filed before this Court on behalf of respondent Nos.1 to 4, inter alia, the
following relevant facts were taken into account to invoke the power
under Rule 16 (iii) of the CCA Rules instead of proceeding to file a
supplementary charge sheet under Rule 11 of the CCA Rules, such as:-
E (i) the way the Korean authorities had harboured him for
almost two years,
(ii) his continued contacts and interactions with them in
spite of orders to the contrary,
F (iii) the manner in which he managed to leave the country
in spite of the Look Out Notices issued by the
Immigration Authorities to the Police and International
Airport authorities,
(iv) his further exposure to the ISRO’S critical rocket
G technologies would have serious complications, and
19. It is the further contention that ISRO, being a strategically
important organization having sensitivity, especially from the angle of
the security of the State, its employees are not allowed to go abroad and
to take up assignments/research there, without permission. Being a
H responsible scientist/engineer of VSSC/ISRO, the appellant was duty
DR. V. R. SANAL KUMAR v. UNION OF INDIA & ORS. 793
[C. T. RAVIKUMAR, J.]
bound to abide by the conduct Rules and when the violation is serious A
and likely to affect the security of the State, it is not only befitting but
also inevitably inviting action in terms of the provision under Rule 16 (iii)
of the CCA Rules. The appellant had unauthorized association with
foreign institution on a subject, which is a strategic research and
development subject in the respondent organization and based on which
B
the nation’s rocketry and ambitious launch vehicle programs were
advancing and a doubtful circumstance of disclosure of vital data to
unauthorized foreign agencies is created it is a matter of concern for the
security of the State. Taking up all such contentions, it was submitted by
the learned counsel appearing for respondent Nos.1 to 4 that the invocation
of the power under Rule 16 (iii) of the CCA Rules in dismissing the C
appellant from service was subjected to judicial review, initially by the
Tribunal and then by the High Court and, therefore, no case, whatsoever
was made out by the appellant so as to compel invocation of the power
under Article 136 of the Constitution of India to conduct a further judicial
review. It is therefore, submitted that the appeal is liable to be dismissed.
D
20. Before delving into the matter further, it is only apposite to
refer to the appellant’s own estimation about himself. According to the
appellant, he is a high-profile scientist with specialisation in rocket
propulsion with proven credentials at par with NASA scientist. He would
further state that he is second to none in space program and is having all E
potential to become the Chairman of ISRO and is the best suitable
candidate for the post of Chairman ISRO with immediate effect.
21. Thus, it is obvious that the appellant himself knew that he is a
high-profile scientist in ISRO, which is a highly sensitive and strategic
research and development organisation under the Department of Space, F
Government of India. We are of the considered view that the Court
cannot be an island and feign oblivion of the pivotal role of a scientist/
engineer attached to ISRO and also the role of ISRO as the space agency
of India. Obviously, it is involved in science, engineering and technology
to harvest the benefits of outer space for India. Now, we will cull out the
relevant indisputable and undisputed facts, obtained in this case. The G
appellant is a scientist/engineer in the VSSC, Thiruvananthapuram of
ISRO. After applying for sabbatical leave for one year and when the
competent authority decided not to recommend the leave in exigency of
service, he applied for nine days’ earned leave from 21.08.2003 to
29.08.2003 on personal grounds and then went to South Korea. On H
794 SUPREME COURT REPORTS [2023] 5 S.C.R.
A reaching South Korea, through e-mail dated 01.09.2003, the appellant
intimated his Divisional Head in VSSC regarding his arrival in South
Korea to carry out his post-doctoral research and to assist Prof. H.D.
Kim, Head of School of Mechanical Engineering, Andong National
University, South Korea. Though his application dated 18.07.2003 was
not sanctioned, through another e-mail, he applied for 89 days’ leave
B
from 01.09.2003 to 28.11.2003 and continued to stay in South Korea
despite being informed that his leave was not sanctioned and was required
to report for duty not later than 11.09.2003. It is also to be noted that
before going to South Korea to join the aforesaid University, he had
published a technical paper as first author with a foreigner as one of the
C co-authors in the 39th American Institute of Aeronautics and Astronautics
(AIAA) Joint Propulsion Conference, USA, without obtaining approval
of the competent authority. Though he rejoined duty on 27.03.2004 with
full knowledge that his application for sabbatical leave was not sanctioned
he left for South Korea in March, 2004 without giving information to and
obtaining permission from the organization. He re-joined duty on
D
18.05.2004 and then, went back to South Korea on 28.05.2004 without
permission from the authorities. The aforesaid factual aspects would
reveal that without permission from the competent authority the appellant
went to South Korea, joined Andong National University, South Korea
and assisted Prof. H.D. Kim, Head of School of Mechanical Engineering
E and kept on his association with the said foreign institution involved in
the research on rocketry, which is a strategic research and development
subject in ISRO. In the contextual situation, it is relevant to refer to
Annexures P1 and P4. Annexure-P1 letter dated 28.08.2002 from Prof.
H.D. Kim to himself, produced by the appellant, would reveal the nature
of the research project in the laboratory of Prof. H.D. Kim and Annexure
F
P4 would reveal the repeated advice to the appellant not to have any
contact in future with any external agency, such as Andong National
University, South Korea, without permission from appropriate authorities
in ISRO. The further indisputable facts would reveal his persistent
dealings with that University ignoring such instructions. In such
G circumstances, his continued association with a foreign agency/university,
ignoring the fact that he is a responsible scientist in the ISRO, which is a
highly sensitive and strategic research and development organization
under the Department of Space, Government of India, if viewed
suspiciously and thought that his further exposure to ISRO’s critical rocket
technologies would create serious complications, it cannot be said to be
H
DR. V. R. SANAL KUMAR v. UNION OF INDIA & ORS. 795
[C. T. RAVIKUMAR, J.]
bereft of substance and not a matter of concern in regard to the security A
of the State. As noticed hereinbefore, taking into account the expertise
of the appellant in the particular branch and that he has been working
under ISRO since 1992, there cannot be any doubt with respect to the
experience which he gathered in the subject from ISRO and in such
circumstances leaving to a foreign country without prior permission and
B
continuing there for a considerable long period despite advice and
instructions to come back and continuing to associate with such a foreign
organisation/university researching on rocketry, the respondent
organisation cannot be said to have committed a flaw or fault in
entertaining suspicion on his honesty, integrity, reliability, dependability
and trustworthiness and above all to treat such acts as a matter of concern C
in relation to the security of the State.
22. Rule 16 (iii) of the CCA Rules requires no analytical approach
to understand that it contains two limbs. Firstly, to attract it requires the
satisfaction of the President that “in the interest of the security of the
State” it is not expedient to hold any inquiry in the manner provided in D
the CCA Rules. The second limb enables the disciplinary authority to
consider, having regard to the circumstances of the case to consider and
make such orders thereon, as it deems fit. In the case on hand in
invocation of the provision of Rule 16 (iii) of the CCA Rules, order dated
11.08.2007 was passed dismissing the appellant from service with effect E
from 01.09.2003 without conducting inquiry upon the satisfaction of the
President that it is not expedient to hold any inquiry in the manner provided
in the CCA Rules “in the interest of the security of the State”. Therefore,
the first question is whether the dispensation with the inquiry based on
satisfaction that “in the interest of the security of the State” it is not
expedient to hold any inquiry, invites interference. Subject to its answer F
the question whether the order of dismissal invites interference, has to
be looked into.
23. Paragraph 126 of the decision of the Constitution Bench in
Tulsiram Patel’s case (supra) would reveal that the Constitution Bench,
while considering a provision pari materia to Rule 16 (iii) of the CCA G
Rules viz., Rule 14 of the Railway Servants Rules, found error inasmuch
as the issue was considered by confining to Rule 14 itself, without taking
into account the second proviso of Article 311 (2) of the Constitution of
India. After observing that exercise of power is always referrable to the
H
796 SUPREME COURT REPORTS [2023] 5 S.C.R.
A source of such power and must be considered in conjunction with it and
held that the source of power to dispense with an inquiry, in such
circumstances, is derived from the second proviso to Article 311 (2).
Bearing in mind the said observation and holding we have carefully
considered the order passed by the Administrative Tribunal which was
subjected to further judicial review by the High Court. We have no
B
hesitation to hold that a bare perusal of the order of the Tribunal would
reveal that the tribunal had considered the question not confining its
consideration only to Rule 16 (iii) of the CCA Rules but also taking into
consideration the source of power derived from the second proviso to
Article 311 (ii) of the Constitution of India. Obviously, the question whether
C it is expedient to hold an inquiry as provided under the CCA Rules has to
be considered and the satisfaction as to its expediency or inexpediency
has to be reached based on “interest of the security of the State”. The
meaning and scope of the expression ‘security of the State’ has been
considered by the Constitution Bench in Tulsiram Patel’s case (supra).
It was observed that the expressions “Law and Order”, “Public Order”
D
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”. It was therefore, observed and
held that of all these situations those which affect “security of the State”
E are the gravest. The expression “security of the State” does not mean
security of the entire country or a whole State and it includes security of
the part of the State. Furthermore, it was held that there are various
ways in which “security of the State” could be affected such as, by
State secrets or information relating to defence production or similar
matters being passed on to other countries, whether inimical or not to
F
our country, or by secret links with terrorists. It was also held that it
would be difficult to enumerate the various ways in which the “security
of the State” could be affected and the way in which “security of the
State” would be affected might be either open or clandestine. In paragraph
142 of Tulsiram Patel’s case (supra) it was further held:
G
“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
H
DR. V. R. SANAL KUMAR v. UNION OF INDIA & ORS. 797
[C. T. RAVIKUMAR, J.]
taking place. Further, what is required under clause (c) is not A
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
B
President or the Governor must, therefore, be with respect to
the expediency or inexpediency of holding an inquiry in the
interest of the security of the State.
(emphasis added)
24. We have already taken note of the indisputable and undisputed C
facts obtained in this case which are relevant for the purpose of
consideration of the question with respect to the expediency or
inexpediency of holding an inquiry “in the interest of the security of the
State.” In view of the situations deducible from the materials on record,
we find absolutely no reason to hold that the satisfaction that it is not D
expedient to hold an inquiry “in the interest of security of the State” was
arrived at without any material. When once it is obvious that
circumstances based on materials capable of arriving at a satisfaction
that it is not expedient to hold an inquiry “in the interest of the security of
the State” are available the decision in holding that it is inexpedient “in
the interest of the security of the State” to hold an inquiry warrants no E
further scrutiny, rather, it is not fit to be subjected to further judicial
review. In other words, the Court cannot, in such circumstances, judge
on the expediency or inexpediency to dispense with the inquiry as it was
arrived at based on the subjective satisfaction of the President based on
materials. In the above circumstances, we do not find any reason to F
interfere with the disinclination on the part of the Tribunal and then the
High Court, on the aforesaid issue.
25. The aforesaid conclusion would take us to the next question
as to whether the non-interference with the order of dismissal warrants
any interference. In this context, it is required to be noted that the G
retrospectivity given to the order of dismissal from 01.09.2003 was
interfered with, by the Tribunal. It has become final and it was given
effect to by the respondent organization by modifying the date of its
effect from the date of the order of dismissal. While considering the
above question, it is relevant to refer again to the decision of the
H
798 SUPREME COURT REPORTS [2023] 5 S.C.R.
A Constitution Bench in Tulsiram Patel’s case (supra). Though it was
held that such an order would be open to challenge on the ground of
mala fides or being based wholly on extraneous grounds, it is relevant to
note that in the case on hand, the order of dismissal is not put to challenge
on any of such grounds. Going by the decision in Tulsiram Patel’s case
(supra), when once such a power is invoked to dispense with inquiry the
B
consideration as to what penalty should be imposed upon a delinquent
employee must be ex-parte. In other words, on that question no opportunity
of being heard is to be given. Even-after holding so, in paragraph 114 of
Tulsiram Patel’s case (supra), it was held that in order to arrive at a
decision as to which penalty should be imposed, the disciplinary authority
C has to take into consideration the various factors set out in T.R.
Chellappan’s case (supra). Then, the question is what are such factors
to be taken into account in that regard in terms of T.R. Chellappan’s
case (supra). A scanning of the decision in T.R. Chellappan’s case
(supra), would go to show that it was held therein that the disciplinary
authority while deciding the question as to what penalty should be imposed
D
on the delinquent employee in the facts and circumstances of a particular
case would have to take into account the entire conduct of the delinquent
employee, a gravity of the misconduct committed by him, the impact
which his misconduct is likely to have on the administration and other
extenuating circumstances or redeeming features if any present in the
E case and so on and so forth. Such aspects were looked into by the
Tribunal. We have also referred hereinbefore the acts and omissions on
the part of the appellant having regard to his role as a scientist/engineer
in ISRO and the role of ISRO as the space agency of India. It is not the
mere unauthorized absence of the appellant that actually weighed with
the authority and evidently, the organization is perfectly justified in casting
F
suspicion on the honesty, integrity, reliability, dependability and
trustworthiness in view of the factual situation obtained in this case, as
explained in the counter affidavit, besides entertaining the stand that his
unauthorized association with foreign institution, especially in the area of
propulsion, which is a strategic research and development subject in the
G organization and based on which the nation’s rocketry and ambitious
launch vehicle programs are/were advancing, was a matter of concern
for the security of the State. When such acts/conduct occur/occurs from
a scientist in a sensitive and strategic organization, the decision to impose
dismissal from service cannot be said to be illegal or absolutely
unwarranted. In other words, we do not find any reason to hold that the
H
DR. V. R. SANAL KUMAR v. UNION OF INDIA & ORS. 799
[C. T. RAVIKUMAR, J.]
judgment of the High Court, dismissing the challenge against the order A
of the Tribunal warrants any kind of interference in exercise of the power
under Article 136 of the Constitution of India. The appeal, therefore,
must fail and accordingly it is dismissed, however, without any cost.
Nidhi Jain Appeal dismissed. B
(Assisted by : Rakhi, LCRA)
C
D
E
F
G
H
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