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PETITIONER:

A.K. KAUL & ANR

Vs.

RESPONDENT:

UNION OF INDIA & ANR

DATE OF JUDGMENT19/04/1995

BENCH:

AGRAWAL, S.C. (J)

BENCH:

AGRAWAL, S.C. (J)

FAIZAN UDDIN (J)

CITATION:

1995 AIR 1403 1995 SCC (4) 73

JT 1995 (4) 1 1995 SCALE (2)755

ACT:

HEADNOTE:

JUDGMENT:

S.C. AGRAWAL, J.:

1. Leave granted.

2. The appellants were employed as Deputy Central

Intelligence Officers in the Intelligence Bureau in the

Ministry of Home Affairs of the Government of India. On

July 23, 1979, the employees of the Intelligence Bureau

formed an Association called "the Intelligence Bureau

employees Association" (IBEA) for the purpose of ventilating

their grievances. Appellants, A.K.Kaul and Verghese Joseph,

were elected as the General Secretaries of IBEA and

appellant, B.B. Raval, was elected as the President. On May

3, 1980, the Joint Director of the Intelligence Bureau

issued, a Circular Memorandum declaring that the formation

of the IBEA was in violation of the Civil Services (Conduct)

Rules and that those who take part in the activities of the

IBEA will attract disciplinary action. Writ petitions

(Civil) Nos. 1117-1119 were filed in this Court challenging

the said circular. This Court, on July 21, 1980, issued an

order for issue of rule nisi on the said writ petitions and

also passed an interim order directing that during the

pendency of the

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writ petitions in this Court no disciplinary action shall be

taken against any member of the IBEA for reasons mentioned

in the circular. On December 26, 1980, orders were passed

dismissing the appellants from service. One such order

regarding the dismissal of appellant, A.K. Kaul, is in the

following terms :

"Shri A.K. Kaul,

Deputy Central Intelligence Officer,

Intelligence Bureau,

New Delhi.

Whereas the President is satisfied under

sub-clause (c) of the proviso to clause(2) of

Article 311 of the Constitution that in the

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interest of the security of the State it is

not expedient to hold an inquiry in the case

of Shri A. K. Kaul.

And whereas the President is satisfied that on

the basis of the information available, the

activities of Shri A.K. Kaul are such as to

warrant his dismissal from service.

Accordingly, the President hereby dismisses

Shri A.K. Kaul from service with immediate

effect.

(By order and in the name of President

Sd/-

(R. Mahadevan)

Under Secretary to the Govt. of

India Ministry of Home Affairs."

3. The orders for dismissal of appellants, Verghese Joseph

and B.B. Raval are in the same terms. The appellants filed

separate writ petitions (Nos. 205-207/81 1) in this Court

under Article 32 of the Constitution to challenge the said

orders of dismissal. After the constitution of the Central

Administrative Tribunal under the Administrative Tribunals

Act, 1985, (hereinafter referred to as 'the Tribunal') the

said writ petitions were transferred to the Tribunal for

adjudication and they were registered as T.A. Nos. 1,2 and 3

of 1992.

4. Before the Tribunal the case put for-ward by the

appellants was that they have been picked and chosen for

punitive action for dismissal from service for the reason

that they were important members of the IBEA, being office

bearers as General Secretaries and the President, and that

the real motive to pass the orders of dismissal was to

penalise them for the active part they had taken in

ventilating the grievances of the employees through the

IBEA. The appellants also pleaded that they had an

excellent record of service and that they had not conducted

themselves in such manner as to warrant their dismissal from

service. It was submitted that they were recipients of

commendation certificates, appreciation letters and cash

awards from time to time. It was also stated in the

applications that they had not acted contrary to the

interest of national security at any time. The said

applications were contested by the respondents who pleaded

that the orders of dismissal had been passed by the

President on being satisfied on the basis of the material

available that the activities of the appellants were such as

to warrant their dismissal from service by dispensing with

the requirements of Article 311(2) of the Constitution in

the interest of security of the State. It was also pleaded

on behalf of the respondents that the details of the

material on the basis of which the satisfaction had been

reached cannot be disclosed without detriment to public

interest. It was denied that the authorities of the

Intelligence Bureau have a hostile attitude towards IBEA and

it was stated that punitive action was taken on merits of

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each case and not because of the participation of the

appellants in the activities of the IBEA. During the

pendency of the applications before the. Tribunal the ap-

pellants moved Misc. Petitions Nos. 1897/ 92 in T.A. Nos.

1 and 2/92 and Miscellaneous Petition No. 732/92 in T.A.-

No. 3/92 whereby they prayed for directions to the

respondents to produce the records specified in the said

applications for inspection of the Tribunal and/or by the

appellants and their counsel. The said applications were

opposed by the respondents who claimed privilege invoking

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Article 74(2) of the Constitution and Sections 123 and 124

of the Evidence Act and for that purpose affidavit of Mr.

Madhav Godbole, Secretary to the Government of India, Min-

istry of Home Affairs, New Delhi (the Head of the

Department) was filed before the Tribunal. Without

prejudice to the said claim of privilege, the respondents

had, however, stated that they had no objection whatsoever

to the said documents relating to the dismissal of the

appellants and those portions of documents that relate to

the said dismissal orders being produced for perusal of the

Tribunal in order to satisfy it that the claim of privilege

against disclosure of the said official records is bona fide

and genuine.

5. By judgment dated December 18, 1993 the Tribunal, after

perusing the records that were placed for perusal of the

Tribunal, upheld the claim of privilege and dismissed ,the

applications filed by the appellants for inspection and

production of the documents. On the basis of the said

records the Tribunal has further found that the material

considered by the President relate to the activities of the

appellants which would prejudicially affect the security of

the State and that the materials relied upon or the

satisfaction of the President have nothing to do with the

appellants' activities in relation to the IBEA. The

Tribunal has held that there is no substance in the case of

the appellants that the orders of the dismissal were not

bona fide and they have been passed to victimise the

appellants for promoting and participating in the activities

of the IBEA. The Tribunal was of the view that the

satisfaction had been arrived at after application of mind

to the relevant materials without taking into consideration

irrelevant factors and that the impugned orders of dismissal

from service dated December 26, 1980 arc not liable for

interference. The Tribunal, therefore, dismissed the

applications of the appellants. Hence these appeals.

6.On behalf of the appellants it has been urged that the

exercise of power under clause (c) of the second proviso to

Article 3 11(2) of the Constitution is subject to judicial

review and that an order passed under the said provisions is

open to challenge before the courts on the ground that the

satisfaction of the President or the Governor is vitiated by

malafides or is based on considerations which have no

relevance to the interest of the security of the State. In

this connection, Shri Sorabjee has submitted that in a case

where the employee assails the action taken against him

under Article 311(2)(c) it is obligatory on the part of the

concerned Government to place before the court the relevant

material on the basis of which the action was taken and such

material can only be withheld from the court in cases where

the claim of privilege is found to be justified under the

provisions of Sections 123 and 124 of the Evidence Act.

Shri Sorabjee has urged that the said claim of privilege

does not extend to the disclosure of the nature of

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the activities on the basis of which the alleged

satisfaction has been arrived at and the privilege can only

relate to the material which has been relied upon in support

of the said activities.

7. The learned Additional Solicitor General, appearing for

the respondents, has, however, submitted that an order under

clause (c) of second proviso to Article 311(2) of the

Constitution is to be passed by the President or the

Governor on the basis of his subjective satisfaction. The

material which forms the basis for arriving at the said

satisfaction is not required to be disclosed both in view of

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Article 74(2) as well as under Sections 123 and 124 of the

Evidence Act. The learned Additional Solicitor General has,

in this context, pointed out that while under clause (b) of

the second proviso to Article 311(2) the competent authority

is required to record in writing the reason for its satis-

faction that it is not reasonably practicable to hold an

inquiry, there is no such requirement for recording the

reason in clause (c) and, therefore, there is no requirement

to disclose the reasons for arriving at the satisfaction for

taking action under clause (c) of second proviso to Article

311(2).

8. Article 311(2), as amended by the Constitution

(Fifteenth Amendment) Act, 1963, provides as follows :

"(2) No such persons aforesaid shall be

dismissed or removed or reduced in rank except

after an inquiry in which he has been informed

of the charges against him and given a

reasonable opportunity of being heard in

respect of those charges :

Provided that where it is proposed after such

inquiry to impose upon him any such penalty,

such penalty may be imposed on the basis of

the evidence adduced during such inquiry and

it shall not be necessary to give such person

any opportunity of making representation on

the penalty proposed

Provided further that this clause shall not

apply -

(a) where a person is dismissed or removed

or reduced in rank on the ground of conduct

which has led to his conviction on a criminal

charge; or

(b) when the authority empowered to dismiss

or remove a person or to reduce him in rank is

satisfied that for some reason, to be recorded

by that authority in writing it is not practi-

cable to hold such inquiry; or

(c) where the President or Governor, as the

case may be, is satisfied that in the interest

of the security of the State it is not

expedient to hold such inquiry. "

9. The provision of the second proviso came up for

consideration before the Constitution Bench of this Court in

Union of India & Anr. v. Tulsiram Patel & Ors., 1985 Supp.

(2) SCR 13 1, Madon, J., speaking for the majority, has

observed that clause (2) of Article 311 gives a constitu-

tional mandate to the principles of natural justice and audi

alteram pattern rule by providing that a person employed in

a civil capacity under the Union or a State shall not be

dismissed or removed from service or reduced in rank until

after an inquiry in which he has been informed of the

charges against him and has been given a reasonable

opportunity of being heard in respect of those charges and

that this safeguard provided for a government, servant by

10

clause (2) of Article 311(2) is, however, taken away when

the second proviso to that clause becomes applicable. (Page

202). The Court has also pointed out that the paramount

thing to bear in mind is that the second proviso will apply

only where the conduct of a government servant is such as he

deserves the punishment of dismissal, removal or reduction

in rank and that before denying a government servant his

constitutional right to an inquiry, the first consideration

would be whether the conduct of the concerned government

servant is such as justifies the penalty of dismissal,

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removal or reduction in rank and once that conclusion is

reached and the condition specified in the relevant clause

of the second proviso is satisfied, that proviso becomes

applicable and the government servant is not entitled to an

inquiry. (Pages 204-205). While dealing with clause (c) of

the second proviso to Article 311(2) it has been stated :

"The question under clause (c), however, is

not whether the security of the State has been

affected or not, for the expression used in

clause (c) is "in the interest of the security

of the State". The interest of the security

of the state may be affected by actual acts or

even the likelihood of such acts taking place.

Further, what is required under clause (c) is

not the satisfaction of the President or the

Governor, as the case may be, that the

interest of the security of the State is or

will be affected but his satisfaction that in

the interest of the security of the State, it

is not expedient to hold an inquiry as

contemplated by Article 311(2). The sat-

isfaction of the President or Governor must,

therefore, be with respect to the expediency

or inexpediency of holding an inquiry in the

interest of the security of the State. " (p.

277)

"The satisfaction so reached by the President

or the Governor must necessarily be a

subjective satisfaction. Expediency involves

matters of policy. Satisfaction may be

arrived at as a result of secret information

received by the Government about the brewing

danger to the interest or the security of the

State and like matters. There may be other

factors which may be required to be

considered, weighed and balanced in order to

reach the requisite satisfaction whether

holding an inquiry would be expedient or not.

If the requisite satisfaction has been reached

as a result of secret information received by

the Government, making, known such information

may very often result in disclosure of the

source of such information. Once known, the

particular source from which the information

was received would no more be available to the

Government. The reasons for the satisfaction

reached by the President or the Governor under

clause (c) cannot, therefore, be required to

be recorded in the order of dismissal, removal

or reduction in rank nor can they be made

public." (p. 278)

10.The learned Judge did not consider it necessary to deal

with the contention that the power of judicial review is not

excluded where the satisfaction of the President or the

Governor has been reached mala fide or is based on wholly

extraneous or irrelevant grounds and that in such a case, in

law there would be no satisfaction of the President or the

Governor at all for the reason that in the matters under

consideration before this court all the materials, including

the advice tendered by the Council of Ministers, had been

produced and they clearly showed that the satisfaction of

the Governor was neither reached malafide nor was it based

on any extraneous or irrelevant ground. (Page 279). In the

light of the provisions contained in Article 74(2) and

Article 163(3) it was submitted before

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the Court that leaving aside the advice given by the

Ministers to the President or the Governor, the Government

is bound to disclose at least the materials upon which the

advice of Council of Ministers was based so that the court

can examine whether the satisfaction of the President or the

Governor, as the case may be, was arrived at mala fide or is

based on wholly extraneous or irrelevant grounds so that

such satisfaction would in law amount to no satisfaction at

all and that if the Government does not voluntarily disclose

such materials it can be compelled by the Court to do so.

Dealing with the said submission it was observed :

"Whether this should be done or not would

depend upon whether the documents in question

fall within the class of privileged documents

and whether in respect of them privilege has

been properly claimed or not. It is

unnecessary to examine this question any

further because in the cases under clause (c)

before us though at first privilege was

claimed, at the hearing privilege was waived

and the materials as also the advice given by

the Ministers to the Governor of Madhya

Pradesh who has passed the impugned orders in

those cases were disclosed." (p. 280)

11.It would thus appear that in Tulsiram Patel (supra)

though the question whether the satisfaction of the

President or the Governor under Article 311(2) is amenable

to judicial review and the Government can be required to

disclose the materials upon which the advice of the Council

of Ministers was based so as to enable the court to exercise

the power of judicial review has been left open, the Court,

after considering the said material, has recorded the find-

ing that the satisfaction of the Governor was neither

recorded malafide nor was it based on any extraneous or

irrelevant ground.

12.It is, therefore, necessary to deal with this question in

the instant case., We may, in this context, point out that a

distinction has to be made between judicial review and

justiciability of a particular action. In a written

constitution the powers of the various organs of the

State,are limited by the provisions of the Constitution.

The extent of those limitations on the powers has to be

determined on an interpretation of the relevant provisions

of the Constitution. Since the task of interpreting the

provisions of the Constitution is entrusted to the

Judiciary, it is vested with the power to test the validity

of an action of every authority functioning under the

Constitution on the touch stone of the constitution in order

to ensure that the authority exercising the power conferred

by the constitution does not transgress the limitations

placed by the Constitutions on exercise of that power. This

power of judicial review is, therefore, implicit in a

written constitution and unless expressly excluded by a

provision of the Constitution, the power of judicial review

is available in respect of exercise of powers under any of

the provisions of the Constitution. Justiciability relates

to a particular field falling within the purview of the

power of judicial review. On account of want of judicially

manageable standards, there may be matters which are not

susceptible to the judicial process. In other words, during

the course of exercise of the power of judicial review it

may be found that there are certain aspects of the exercise

of that power which are not susceptible to judicial process

on account of want of judicially manageable standards and

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are, therefore, not justiciable.

13. In the Slate of Rajasthan & Ors. v.

12

Union of India Etc. Etc., (1978) 1 SCR 1, one of the

questions failing for consideration was whether satisfaction

of the President in the matter of exercise of the power to

make a Proclamation conferred under Article 356(1) of the

Constitution is amenable to judicial review. At the

relevant time when the impugned Proclamations were made

there was an express provision in clause (5) of Article 356

which prescribed that "the satisfaction of the President

mentioned in clause (1) shall be final and conclusive and

shall not be questioned in any Court on any ground." In

spite of such an express provision P.N. Bhagwati J. (as the

learned Chief Justice then was) speaking for himself and

A.C. Gupta J., has held that "if the satisfaction is mala

fides or is based on wholly extraneous or irrelevant

grounds, the Court would have the jurisdiction to examine

it, because in that case there would be no satisfaction of

the President in regard to the matter which he is required

to be satisfied." (p.82). Other learned Judges, with some

variance, have adopted a similar approach. Beg CJ. has held

that if it is revealed "that a constitutionally or legally

prohibited or extraneous or collateral purpose is sought to

be achieved by a proclamation under Article 356 of the

Constitution, this Court will not shirk its duty to act in

the manner in which the law may then oblige it to act."

(p.46). Chandrachud J. (as the learned Chief Justice then

was) has observed that if reasons given are wholly extrane-

ous to the formation of the satisfaction, the Proclamation

would be open to the attack that it is vitiated by legal

mala fides." (p.60). Goswami J. has held that the Court

"would not refuse to consider when there may be sufficient

materials to establish that the Proclamation under Article

356(1) is tainted with mala fides."(p.92).Untwalia J. has

said that the Court is not powerless to interfere with an

order that is ultra vires, wholly illegal or passed mala

fide. (p. 95). Fazal Ali J. has held that "on the reasons

given by the President in his order if the Courts find that

they are absolutely extraneous and irrelevant and based on

personal and illegal considerations the Courts are not

powerless to strike down the order on the ground of mala

fide if proved." (p. 120).

14. Clause (5) of Article 356 was deleted by the

Constitution (Forty Fourth Amendment) Act, 1978. In S.R.

Bommai (supra) Sawant J. after noticing the observations in

A.K. Roy v. Union of India 1982 (2) SCR 272, has observed

that after deletion of clause (5) the judicial review of the

Proclamation issued under Article 356 has become wider than

indicated in the State of Rajasthan (supra). Similarly,

Jeevan Reddy J. has said : "Surely the deletion of clause

(5) has not restricted the scope of judicial review.

Indeed, it has removed the cloud cast on the said power.

The Court should, if anything, be more inclined to examine

the constitutionality of the Proclamation after such

deletion." (p. 255)

15. In S.R. Bommai (supra) differing views were expressed

by the learned Judges on the scope and extent of the

judicial review and justiciability of the action taken by

the President in exercise of power conferred under Article

356(1). Sawant J., speaking for himself and Kuldip Singh

J., had held that material on the basis of which the advice

is given by the Council of Ministers and the President forms

his satisfaction has to be scrutinised by Court within the

acknowledged parameters of judicial review, viz.,

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illegality, irrationality and mala fides. (p. 112).

Referring to the ex-

13

pression "if the President .... is satisfied" in Article

356(1) the learned Judge has said :

"Hence, it is not the personal whim wish, view

or opinion or the ipse dixit of the President

dehors the material but a legitimate inference

drawn from the material placed before him

which is relevant for the purpose. In other

words, the President has to be convinced of or

has to have sufficient proof of information

with regard to or has to be free from doubt or

uncertainly about the state of things indi-

cating that the situation in question has

arisen. Although, therefore, the sufficiency

or otherwise of the material cannot be

questioned the legitimacy of inference drawn

from such material is certainly open to

judicial review. " (p. 103)

16. According to the learned Judge, "Many of the parameters

of judicial review developed in the field of administrative

law are not antithetical to the field of constitutional law

and they can equally apply to the domain covered by the

constitutional law." (p.94). The learned Judge has applied

the tests laid down by this Court in Barium Chemicals Ltd.

v. Company Law Board. 1966 Supp. SCR. 311.

17. Jeevan Reddy J., speaking for himself and one of us

(Agrawal J.), did not, however, give such a wide scope to

the power of judicial review in respect of a proclamation

made under Article 356 (1). After pointing out that Barium

Chemicals (supra) is a decision concerning subjective

satisfaction of an authority created by a statute, the

learned Judge has held that the principles enshrined in that

case "cannot ipso facto be extended to the exercise of

constitutional power under Article 35 of the Constitution

and that "having regard to the fact that this is a high

Constitutional functionary in the Nation, it may not be

appropriate to adopt the tests applicable in the case of

action taken by statutory or administrative authorities nor,

at any rate, in their entirety." (p.267). He preferred to

adopt the formulation that "if a Proclamation is found to be

mala fide or is found to be based wholly on extraneous or

irrelevant grounds, it is liable to be struck down."

(p.268). The teamed Judge has observed: "The truth or

correctness of the material cannot be questioned by the

court nor will it go into the adequacy of the material. It

will also not substitute its opinion for that of the

President. Even if some of the material on which the action

is taken is found to be irrelevant, the court would still

not interfere so long as there is some relevant material

sustaining the action. The ground of mala fides takes in

inter alia situations-where the Proclamation is found to be

a clear case of abuse of power, or what is sometimes called

fraud on power cases where this power is invoked for

achieving oblique ends." (p. 268). The learned Judge has

further stated: "The court will not lightly presume abuse or

misuse. The court would, as it should, tread wearily,

making allowance for the fact that the President and the

Union Council of Ministers are the best judges of the

situation, that they alone are in possession of information

and material sensitive in nature sometimes and that the

Constitution has trusted their judgment in the matter. But

all this does not mean that the President and Union Council

of Ministers are the final arbiters in the matter or that

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their opinion is conclusive." (pp.268 269). Pandian J. has

expressed his agreement with the judgment of Jeevan Reddy J.

18. Ahmadi J. (as the learned Chief Justice then was),

while expressing his agree-

14

ment with the view expressed in the State of Rajasthan

(supra) has held that a proclamation issued under Article

356(1) of the Constitution can be challenged on the limited

ground that the action is mala fide or ultra vires Article

356 itself and has held that the test laid down in Barium

Chemicals (supra) and subsequent decisions for adjudging the

validity of administrative action can have no application

for testing the satisfaction of the President under Article

356. (p.82)

19. Verma J., speaking for himself and Yogeshwar Dayal J.,

has taken the same view. The learned Judge has held though

the Proclamation under Article 356 is subject to judicial

review the area of justiciability is narrow. While holding

that the test for adjudging the validity of an ad-

ministrative action and the grounds of its invalidity

indicated in Barium Chemicals "(Supra) and other cases of

that category have no application for testing and invali-

dating a Proclamation issued under Article 356, the learned

Judge has said that the grounds of invalidity are those

mentioned in State of Rajasthan (supra). (p. 85)

20. K. Ramaswamy J. has held: "The decision can be tested

on the ground of legal mala fides, or high irrationality in

the exercise of the discretion to issue Presidential

Proclamation and the traditions parameters of judicial

review, therefore cannot be extended to the area of

exceptional and extraordinary power exercise under Article

356". The learned Judge has also held that the "doctrine of

proportionality cannot be extended to the power exercised

under Article 356." (p. 209)

21. It would thus appear that in S.R Bommai (supra) though

all the learned Judges have held that the exercise of power

under Article 356 (1) is subject to judicial review but in

the matter of justiciability of the satisfaction of the

President, the view of the majority (Pandian, Ahmadi, Verma,

Agrawal, Yogeshwar Dayal and Jeevan Reddy JJ.) is that the

principles evolved in Barium Chemicals (supra) for adjudging

the validity of an action based on the subjective

satisfaction of the authority created by statute do not, in

their entirety, apply to the exercise of a constitutional

power under Article 356. On the basis of the judgment of

Jeevan Reddy J., which takes a narrower view than that taken

by Sawant J., it can be said that the view of the majority

(Pandian, Kuldip Singh, Sawant, Agrawal and Jeevan Reddy

JJ.) is that :

(i) the satisfaction of the President while

making Proclamation under Article 356(1) is

justiciable;

(ii) it would be open to challenge on the

ground of mala fides or being based wholly on

extraneous and/or irrelevant grounds;

(iii)even if some of the materials on which

the action is taken is found to be irrelevant,

the court would still not interfere so long as

there is some relevant material sustaining the

action;

(iv) the truth or correctness of the material

cannot be questioned by the Court nor will it

go into the adequacy of the material and it

will also not substitute its opinion for that

of the President;

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(v) the ground of mala fide takes in inter

alia situations where the proclamation is

found to be a clear case of abuse of power or

what is sometimes called fraud on power;

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(vi) the court will not lightly presume abuse

or misuse of power and will make allowance for

the fact that the President and the Union

Council of Ministers are the best judge of the

situation and that they are also in possession

of information and material and that the

Constitution has trusted their judgment in the

matter; and

(vii) this does not mean that the President

and the Council of Ministers arc the final

arbiters in the matter or that their opinion

is conclusive.

22.As to the bar to an inquiry by the court imposed under

Article 74(2) of the Constitution, all the Judges in S.R.

Bommai (supra) have held that the said bar under Article

74(2) is confined to the advice tendered by the Council of

Ministers to the President and it does not extend to the

material on the basis of which the advice was tendered and,

therefore, Articles 74(2) does not bar the production of the

material on which the advice of the Council of Ministers is

based. This is, however, subject to the right to claim

privilege against the production of the said material under

Section 123 of the Evidence Act.

23.Is there anything in the provisions of clause (c) of the

second proviso to Article 311 (2) which compels a departure

fro the principles laid down in S.R. Bommai (supra)

governing justiciability of the satisfaction of the

President in the matter of exercise of power under Article

356? We have not been able to discern any reason for making

a departure. As compared the clause (c) of the second

proviso to Article 311 (2), which deals with an individual

employee, the power conferred by Article 356, resulting in

displacement of the elected government of a State and

imposition of President's rule in the State, is of much

greater significance a. effecting large number of persons.

We may, in this context, refer to clause (b) of the second

proviso to Article 311 (2) whereunder it is permissible to

dispense with the requirements of Article 311 (2) if the

authority empowered to dismiss or remove a person or to

reduce him in rank is satisfied that for some reason, to be

recorded by that authority in writing, it is not reasonably

practicable to hold such inquiry. Clause (3) of Article 311

makes the said decision of the authority final. In spite of

the said provision attaching finality to the decision this

Court, in Tulsiram Patel (supra), has held :

"The finality given by clause (3) of Article

311 to the disciplinary authority's decision

that it was not reasonably practicable to hold

the inquiry is not binding upon the court.

The court will also examine the charge of mala

fides, if any, made in the writ petition. In

examining the relevancy of the reasons, the

court will consider the situation which

according to the disciplinary authority made

it come to the conclusion that it was not

reasonably practicable to hold the inquiry.

If the court finds that the reasons are ir-

relevant, then the recording of its satis-

faction by the disciplinary authority would

be, an abuse of power conferred upon it by

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clause (b) and would take the case out of the

purview of that clause and the impugned order

of penalty would stand invalidated." (p.274)

24.Clause (b) differs from clause (c) in as much as under

clause (b) the competent authority is required to record in

writing the reasons for its satisfaction and there is no

such requirement in clause (c). This difference, in our

opinion, does not mean that the satisfaction of the

President or the Governor under clause (c) is immune from

16

judicial review and is not justiciable. It only means that

the provisions contained in clause (c) are more akin to

those contained in Article 356(1) which also does not

contain any requirement to record the reasons for the

satisfaction of the President. Since the satisfaction of

the President in the matter of making a proclamation under

Article 356(1) is justiciable within the limits indicated in

S.R. Bommai (supra) the satisfaction of the President or the

Governor, which forms the basis for passing an order under

clause (c) of the second proviso to Article 311 (2), can

also be justiciable within the same limits.

25.Under clause (c) of the second proviso to Article 311(2)

the President or the Governor has to satisfy himself about

the expediency in the interests of the security of the State

to hold an enquiry as prescribed under Article 311 (2). Are

the considerations involving the interests of the security

of the State of such a nature as to exclude the satisfaction

arrived at by the President or the Governor in respect of

the matters from the field of justiciability? We do not

think so. Article 19(2) of the Constitution permits the

State to impose, by law, reasonable restrictions in the in-

terests of the security of the State on the exercise of the

right to freedom of speech and expression conferred by sub-

clause (a) of clause (1) of Article 19. The validity of the

law imposing such restrictions under Article 19(2) is open

to judicial review on the ground that the restrictions are

not reasonable or they are not in the interests of the

security of the State. The Court is required to adjudicate

on the question whether a particular restriction on the

right to freedom of speech and expression is reasonable in

the interests of the security of the State and for that

purpose the Court takes into consideration the interests of

the security of the State and the need of the restrictions

for protecting those interests. If the Courts are competent

to adjudicate on matters relating to the security of the

State in respect of restrictions on the right to freedom of

speech and expression under Article 19 (2) there appears to

be no reason why the Courts should not be competent to go

into the question whether the satisfaction of the President

or the Governor for passing an order under Article 311 (2)

(c) is based on considerations having a bearing on the

interests of the security of the State. While examining the

validity of a law imposing restrictions on the right to

freedom of speech and expression this Court has emphasised

the distinction between security of the State and mainte-

nance of public order and has observed that only serious and

aggravated forms of public order which are calculated to en-

danger the security of the State would fall within the ambit

of clause (2) of Article 19. (See : Romesh Thappar v. The

State of Madras, 1950 SCR 594, at p. 601). So also in

Tulsiram Patel (supra) the Court has pointed out the

distinction between the expressions 'security of the State',

'public order' and 'law and order' and has stated that

situations which affect public order are graver than those

which affect law and order and situations which affect

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security of the State are graver than those which affect

public order. The President or the Governor while

exercising the power under Article 311 (2) (c) has to bear

in mind this distinction between situations which affect the

security of the State and the situations which affect public

order or law and order and for the purpose of arriving at

his satisfaction for the purpose of passing an order under

Article 311 (2) (c) the President or the Governor can take

into

17

consideration only those circumstances which have a bearing

on the interests of the security of the State and not on

situations having a bearing on law and order or public

order. The satisfaction of the President or the Governor

would be vitiated if it is based on circumstances having no

bearing on the security of the State. If an order passed

under Article 311(2) (c) is assailed before a court of law

on the ground that the satisfaction of the President or the

Governor is not based on circumstances which have a bearing

on the security of the State the Court can examine the cir-

cumstances on which the satisfaction of the President or the

Governor is based and if it finds that the said

circumstances have no bearing on the security of the State

the court can hold that the satisfaction of the President or

the Governor which is required for passing such an order has

been vitiated by wholly extraneous or irrelevant

considerations.

26. It would be useful, in this context, to take note of

the decision of the House of Lords in Council of Civil

Service Unions v. Minister for the Civil Services, 1985 (1)

AC 374, which related to the Government Communications Head

Quarters (GCHQ). The main functions of GCHQ were to ensure

the security of military and official communications and to

provide the government with signals intelligence which in-

volved the handling of secret information vital to the

national security. Since 1947 staff employed at GCHQ had

been permitted to belong to national trade unions and most

had done so. There was a well-established practice of

consultation between the official and trade union sides

about important alterations in the terms and conditions of

service of the staff. On December 22, 1983 the Minister for

the Civil Service gave an instruction for the immediate

variation of the terms and conditions of service of the

staff with the effect that they would no longer be permitted

to belong to national trade unions. There had been no

consultation with the trade unions or with the staff at GCHQ

prior to the issuing of that instruction. The said in-

struction was challenged by a trade union and six

individuals who sought judicial review of the said

instruction. Immunity from judicial review was claimed on

the ground that the said instruction had been issued in

exercise of the prerogative power of the Crown. The House

of Lords held that executive action was not immune from

judicial review merely because it was carried out in

pursuance of the power derived from a common law or

prerogative, rather than a statutory source, and a minister

acting under a prerogative power might, depending upon its

subject matter, be under the same duty to act fairly as in

the case of action under a statutory power. On behalf of

the Minister it was submitted that prior consultation would

involve a real risk that it would occasion the very kind of

disruption that was threat to national security and which it

was intended to avoid. While recognising that the decision

on whether the requirements of national security outweigh

the duty of fairness in any particular case, is for the

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Government and not for the courts, Lord Fraser of Tully

belton said

"But if the decision is successfully chal-

lenged on the ground that it has been reached

by a process which is unfair then the

Government is under an obligation to produce

evidence that the decision was, in fact, based

on grounds of national security," (p. 402)

According to Lord Scarman

18

"The point of principle in the appeal is as to

the duty of the court when in proceedings

properly brought before it a question arises

as to what is required in the interest of

national security. The question may arise in

ordinary litigation between private persons as

to their private rights and obligations: and

it can arise as in this case in proceedings

for judicial review of a decision by a public

authority."

"But, however it arises, it is a matter to be

considered by the court in the circumstances

and context of the case. Though there, are

limits dictated by law and common sense which

the court must observe in dealing with the

question the court does 'not abdicate its

judicial functions. If the question arises as

a matter of fact, the court requires evidence

to be given. If it arises as a factor to be

considered in reviewing the exercise of a

discretionary power, evidence is also needed

so that the court may determine whether it

should intervene to correct excess or abuse of

the power," [p. 404]

27. Similarly Lord Roskill has said:

"The courts have long shown themselves

sensitive to the assertion by the executive

that considerations of national security must

preclude judicial investigation of a

particular individual grievance. But even in

that field the courts will not act on a mere

assertion that questions of national security

were involved. Evidence is required that the

decision under challenge was in fact founded

on those grounds. 'Mat that principle exists

is 1 beyond doubt.?' [p. 420]

28.On the basis of the evidence that was adduced in that

case it was held that the evidence established that the

minister had considered, with reason, that prior consul-

tation about her instruction would have involved a risk of

precipitating disruption at GCHQ and revealing vulnerable

areas of operation, and, accordingly, she had shown that her

decision had in fact been based on considerations of

national security that out weighed the applicants'

legitimate expectation of prior consultation.

29. In Bakshi Sardari Lal (Dead) through LRs Ors. v.

Union of India & Anr., 1987 (4) SCC 114, in a challenge

to orders of dismissal passed under clause (c) of the

second. proviso to Article 311 (2) it was contended on

behalf of the appellants that the High Court was wrong in

holding that the sufficiency of satisfaction of the Presi-

dent was not justiciable. While dealing with the said

contention, the court, after referring to the decision in

Tulsiram Patel (supra), has observed :

"The record of the case produced before us

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clearly indicates that the reason has been

recorded though not communicated. That would

satisfy, the requirements of the law as

indicated in Tulsiram Patel Case . The plea of

mala fides as had been contended before the

High Court and causally reiterated before us

arises out of the fact that typed orders dated

June 3, 1971, were already on record in the

file when the papers were placed before the

President; such a contention is without any

substance." [p. 121]

30.This would show that the court did go into the question

whether the impugned orders were vitiated by mala, fides.

As noticed earlier in Tulsiram Patel (supra) also the Court,

while dealing with the Madhya Pradesh Police Forces matters,

did examine the question whether the impugned orders of

dismissal passed under Article 311(2)(c) were vitiated by

mala fides or were based on irrelevant consid-

19

erations and after considering all the materials that were

produced before the Court by the State Government, the Court

recorded the finding that the facts leave no doubt that the

situation was such that prompt and urgent action was

necessary and the holding of inquiry into the conduct of

each of the petitioners would not have been expedient in the

interests of the security of the State.

31.We are, therefore, of the opinion that an order passed

under clause (c) of the second proviso to Article 311 (2) is

subject to judicial review and its validity can be examined

by the court on the ground that the satisfaction of the

President or the Governor is vitiated by mala fides or is

based on wholly extraneous or irrelevant grounds within the

limits laid down in S.R Bommai (supra).

32.In order that the Court is able to exercise this power of

judicial review effectively it must have the necessary

material before it to determine whether the satisfaction of

the President or the Governor as the case may be, has been

arrived at in accordance with the law and is not vitiated by

mala fides or extraneous or irrelevant factors. This brings

us to the question whether the Government is obligated to

place such material before the Court. It is no doubt true

that unlike clause (b) of the second proviso to Article 311

(2) which requires the authority to record in writing the

reason for its satisfaction that it is not reasonably

practicable to hold such inquiry clause (c) of the second

proviso does not prescribe for the recording of reasons for

the satisfaction. But the absence of such a requirement to

record reason for the satisfaction does not dispense with

the obligation on the part of the concerned Government to

satisfy the court or the Tribunal if an order passed under

clause (c) of the second proviso to Article 311 (2) is chal-

lenged before such court or tribunal that the satisfaction

was arrived at after taking into account relevant facts and

circumstances and was not vitiated by mala fides and was not

based on extraneous or irrelevant considerations. In the

absence of the said circumstances being placed before the

court or the Tribunal it may be possible for the concerned

employee to establish his case that the satisfaction was

vitiated by mala fides or was based on extraneous or

irrelevant considerations. While exercising the power under

Article 311 (2) (c) the President or the Governor acts in

accordance with the advice tendered by the Council of

Ministers. (See : Samsher Singh v. State of Punjab, 1975 (1)

SCR 814). Article 74(2) and Article 163 (3) which preclude

the court from inquiring into the question whether any, and

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if so, what advice was tendered by the Ministers to the

President or the Governor enable the concerned Government to

withhold from the court the advice that was tendered by the

Ministers to the President or the Governor. But, as laid

down in S.R. Bommai (supra), the said provisions do not

permit the Government to withhold production in the Court of

the material on which the advice of the Ministers was based.

This is, however, subject to the claim of privilege under

Sections 123 and 124 of the Evidence Act in respect of a

particular document or record. The said claim of privilege

will have to be considered by the court or tribunal on its

own merit. But the upholding of such claim for privilege

would not stand in the way of the concerned Government being

required to disclose the nature of the activities of the

employee on the basis of which

20

the satisfaction of the President or the Governor was

arrived at for the purpose of passing an order under clause

(c) of the second proviso to Article 311 (2) so that the

court or tribunal may be able to determine whether the said

activities could be regarded as having a reasonable nexus

with the interest of the security of the State. In the

absence of any indication about the nature of the activities

it would not be possible for the court or tribunal to

determine whether the satisfaction was arrived at on the

basis of relevant considerations. The nature of activities

in which employee is said to have indulged in must be

distinguished from the material which supports his having

indulged in such activities. The non-disclosure of such

material would be permissible if the claim of privilege is

upheld. The said claim of privilege would not extend to the

disclosure of the nature of the activities because such

disclosure would not involve disclosure of any information

connecting the employee with such activities or the source

of such information.

33.In our opinion, therefore, in a case where the validity

of an order passed under clause (c) of the second proviso to

Article 111(2) is assailed before a court or a Tribunal it

is open to the court or the Tribunal to examine whether the

satisfaction of the President or the Governor is vitiated by

mala fides or is based on wholly extraneous or irrelevant

grounds and for that purpose the Government is obliged to

place before the court or tribunal the relevant material on

the basis of which the satisfaction was arrived at subject

to a claim of privilege under Sections 123 and 124 of the

Evidence Act to withhold production of a particular document

or record. Even in cases where such a privilege is claimed

the Government concerned must disclose before the Court or

tribunal the nature of the activities in which the Gov-

ernment employee is said to have indulged in.

34.In the present case the appellants had sought production

and inspection of the following documents:

(a) The records and files containing the

"information" on the basis of which the

President was "satisfied " for the purpose of

exercising his powers under clause (c) of the

second proviso to Article 311 (2).

(b) The records and files containing the

description of "activities of the petitioners

which warranted their 'dismissal' from

service".

(c) The records and files containing the

details of "misconduct" attributed to the

petitioners, as covered in CCS (Conduct)

Rules, 1965.

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(d) A copy of the charge of misconduct and

the statement of allegation in support thereof

framed by the Competent Authority against the

petitioners before coming to the conclusion

that "it is not expedient to hold an inquiry

in the case of Shri B.B. Raval (petitioners)."

(e) A copy of the original order passed by

the President of India under Article 311

(2)(c) on the basis of which Shri R.

Mahadevan, Under Secretary to the Government

of India, Ministry of Honic Affairs issued the

impugned order dated 26th December, 1980 "By

order and in the name of the

21

President".

(f) A copy of the order of delegation of

powers of the President of India authorising

Shri R. Mahadevan, Under Secretary to

authenticate the order of the President and

issue the same in his name.

(g) Records and files containing the de-

liberations, recommendations and findings of

the Committee of Advisors (as envisaged in

O.M. dated 26th July, 1980) advising th

e

President of India to exercise powers under

Article 311 (2)(c) of the Constitution.

(h) Copies of any other records, files,

notification or recommendations relevant to

the issue of the impugned order, that the

Hon'ble Tribunal may direct the respondents to

produce for rendering full and effective

assistance to the Hon'ble Tribunal in the

interest of justice and for adjudication of

this case.

35. Dr. Madhav Godbole in his affidavit claimed privilege

under Article 74(2) as well as under Sections 123 and 124 of

the Evidence Act. The Tribunal after referring the decision

of this Court in S.P. Gupta & Ors., etc. etc. v. Union of

India & Ors. etc. etc., 1982 (2) SCR 365, has observed that

the following classes of documents are protected from

disclosure :

"(i) Cabinet minutes, minutes of discussions

between heads of departments, high level

inter-departmental communications and

dispatches from ambassadors abroad.

(ii) Papers brought into existence for the

purpose of preparing a submission to cabinet.

(iii) Documents which relate to the framing of

the Government policy at a high level.

(iv) Notes and minutes made by the respective

officers on the relevant files, information

expressed or reports made and gist of official

decisions reached.

(v) Documents concerned with policymaking

within departments including minutes and the

like by junior officials and correspondence

with outside bodies."

36.The Tribunal, after examining the records produced before

it, has observed that the records contain cabinet minutes,

papers brought into existence for the purpose of preparing

submission to the cabinet, notes made by the respective

officers, information expressed and the gist of official

decisions. Having regard to the fact that the appellants

were working in a highly sensitive Organisation entrusted

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with the delicate job of gathering, collecting and analysing

intelligence necessary to maintain the unity, integrity and

sovereignty of the country and that secrecy is the essence

of the organisation and exposure may tend to demolish the

organisation and aggravate the hazards in gathering informa-

tion and dry up the sources that provide essential and

sensitive information needed to protect public interest, the

Tribunal has held that it will not be in public interest to

permit disclosure of such documents. The Tribunal has,

therefore, upheld the claim of privilege. We do not find

any ground to take a different view in the matter.

37.After looking into the records the Tribunal has recorded

the finding that the materials considered by the President

relate to the activities of the appellants which would

prejudicially affect the security of

22

the State and that the materials relied upon for the

satisfaction of the President have nothing to do with the

activities of the appellants in relation to IBEA and that

the impugned orders have not been passed in violation of the

interim order passed by this Court in W.P. O Nos. 1119 of

1980 and that there is no substance in the appellants' case

that the orders of dismissal are not bona fide and had been

passed to victimise the appellants for promoting and

participating in the activities of IBEA. The learned

Additional Solicitor General has submitted that the Tribunal

has not committed any error in adopting this course and has

placed reliance on the decision of this Court in Jamaat-e-

Islamdi Hind v. Union of India, 1995 (1) SCC 428.

38.In Jamaat-e-Islamdi Hind (supra) a notification had been

issued by the Government of India under Section 3 of the

Unlawful Activities (Prevention) Act, 1967 declaring that

the Jamaat-e-Islami Hind was an unlawful Association. The

said notification was referred for adjudication to the

Tribunal constituted under the said Act. Before the

Tribunal the only material produced by the Central

Government was a resume prepared on the basis of some

intelligence reports and the affidavits of two officers who

spoke only on the basis of the records and not from personal

knowledge. The Tribunal held that there was sufficient

cause for declaring the Association to be unlawful and

confirmed the notification. On behalf of the appellant it

was urged that the only material produced at the inquiry

does not constitute legal evidence for the purpose in as

much as it was, at best, hearsay and that too without

disclosing the source from which it emanates to give an

opportunity to the appellant to effectively rebut the same.

On the other hand, on behalf of the respondent it was

submitted that the requirement of natural justice in such a

situation was satisfied by mere disclosure of information

without disclosing the source of the information. This

Court, while holding that the minimum requirement of natural

justice must be satisfied to make the adjudication mean-

ingful, observed that the said requirement of natural

justice in a case of this kind had to be tailored to

safeguard public interest which must always out-weigh every

lesser interest. It was said:

"It is obvious that the unlawful activities of

an association may quite often be clandestine

in nature and, therefore, the source of

evidence of the unlawful activities may

require continued confidentiality in public

interest. In such a situation, disclosure of

the source of such information, and, may be,

also full particulars thereof, is likely to be

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against the public interest. ....... However,

the nondisclosure of sensitive information and

evidence to the association and its office-

bearers, whenever justified in pubic interest.

does not necessarily imply its non-disclosure

to the Tribunal as well." [p.447]

39.These observations in Jamaat-e-Islamdi Hind (supra) lend

support to the view that in a case where the material is of

such a nature that it requires continued confidentiality in

public interest it would be permissible for the court or

tribunal to look into the same while permitting the non-

disclosure to the other party to the adjudication. It

cannot, therefore, be said that the Tribunal, in the present

case, was in error in looking into the record for the

purpose of determining whether the satisfaction has been

vitiated for any of the reasons mentioned by the appellants.

40. The learned counsel for the appellants

23

have invited our attention to the averments contained in

C.M. No. 8494 of 1980 filed on behalf of the respondent in

W.P. No. 1117-19 of 1980 in this Court in support of their

submission that the impugned orders of dismissal have been

passed on the basis of the activities referred to in para 6

of the said application. This submission has to be,

rejected in view of the finding recorded by the Tribunal

that the materials considered by the President relate to the

activities of the appellants which would prejudicially

affect the security of the State and that the said materials

have nothing to do with the activities of the appellant in

relation to IBEA.

41. Having regard to the facts and circumstances of the

case we are unable to hold that the impugned orders for the

dismissal of the appellants are vitiated by malafides or are

based on wholly extraneous or irrelevant grounds and we do

not find any ground to interfere with the decision of the

Tribunal. The appeals are, therefore, dismissed. But in

the circumstances without any order as to costs.

27