Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No(s). 6301 of 2013

Dr. V.R. Sanal Kumar

…. Appellant(s)

Versus

Union Of India & Ors.

…Respondent(s)

J U D G M E N T

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 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.

Civil Appeal No. 6301 of 2013 Page 1 of 46

2.Compendiously stated, the case that

culminated in the impugned 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/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. On 18.07.2003, the appellant

applied for sabbatical leave for one year. The

competent Authority decided not to recommend

the leave in the 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

Civil Appeal No. 6301 of 2013 Page 2 of 46

processing his request for leave, he reached South

Korea to carry out his post-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 paper as first author with a

foreigner as one of the co-authors in the 39

th

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

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

Civil Appeal No. 6301 of 2013 Page 3 of 46

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 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.

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 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

Civil Appeal No. 6301 of 2013 Page 4 of 46

refund the subsistence allowance drawn after

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 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 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.

Civil Appeal No. 6301 of 2013 Page 5 of 46

4918/2008, essentially 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 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 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 for

Civil Appeal No. 6301 of 2013 Page 6 of 46

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

Notwithstanding anything contained in

Rules 11 to 15 –

(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 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 inquiry in the

manner provided in these Rules,

the Disciplinary Authority may consider

the circumstances of the case and make

Civil Appeal No. 6301 of 2013 Page 7 of 46

such orders thereon as it deems fit:

Provided that the employee may be given

an opportunity of making representation

on the penalty 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.”

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 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.

Civil Appeal No. 6301 of 2013 Page 8 of 46

Therefore, the question is whether 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 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 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

1 (1985) 3 SCC 398

Civil Appeal No. 6301 of 2013 Page 9 of 46

hearing on the charges to be given to a

Government servant, with respect to any of the

aforesaid 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.

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

down in the decision in Divisional Personnel

Officer, Southern Rly. & Anr. v. T.R.

Chellappan

2

that having regard to the meaning of

the word used in the context of the phrase “the

Disciplinary Authority may consider the

2 1976 3 SCC 190

Civil Appeal No. 6301 of 2013 Page 10 of 46

circumstances of the case and make such orders

thereon as it deems fit” under Rule 14(1) of the

Railway Servants (Discipline and Appeal) 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 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 and also the right to make a

representation on the proposed penalty. In

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

Civil Appeal No. 6301 of 2013 Page 11 of 46

expediency or inexpediency of holding an inquiry

in the interest of the security of the 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 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 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 personally. Clause (b) of the second

Civil Appeal No. 6301 of 2013 Page 12 of 46

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 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

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 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

Civil Appeal No. 6301 of 2013 Page 13 of 46

the aid and on the advice of the Council of

Ministers.”

“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 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 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 and thus

frustrate the intention of the makers of the

Constitution…”

Civil Appeal No. 6301 of 2013 Page 14 of 46

“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 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 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 depending upon the

facts and circumstances of the case. In 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

Civil Appeal No. 6301 of 2013 Page 15 of 46

considering Rule 14 of the Railway 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 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 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 restriction

upon the exercise of pleasure under Article

310 (1) which has become free of the

restrictions placed upon it by clause (2) of

Civil Appeal No. 6301 of 2013 Page 16 of 46

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 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 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 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

Civil Appeal No. 6301 of 2013 Page 17 of 46

a hearing to be given to a 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 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 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 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

Civil Appeal No. 6301 of 2013 Page 18 of 46

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 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 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 while

the source of his power to dispense with the

disciplinary 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, always

Civil Appeal No. 6301 of 2013 Page 19 of 46

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 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 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 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

Civil Appeal No. 6301 of 2013 Page 20 of 46

the relevant clause of the second proviso or

the relevant service rule will not, 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: -

“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 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 would prejudice the interest of the

Civil Appeal No. 6301 of 2013 Page 21 of 46

security of the State as much as those acts

would.”

12.In the decision in Union of India v. Balbir

Singh

3

, this Court referred to the earlier decision

in A.K. Kaul v. Union of India

4

, in paragraph 7

as under: -

“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 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 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

3 (1998) 5 SCC 216

4 (1995) 4 SCC 73

Civil Appeal No. 6301 of 2013 Page 22 of 46

clause (c) to the second proviso to Article

311(2), the court would be bound by the order

so passed. 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 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 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;

(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 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

Civil Appeal No. 6301 of 2013 Page 23 of 46

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 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 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 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.”

Civil Appeal No. 6301 of 2013 Page 24 of 46

14. In the decision in Union of India v. M.M.

Sharma

5

, 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 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 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 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

5 (2011) 11 SCC 293

Civil Appeal No. 6301 of 2013 Page 25 of 46

reasons for arriving at the satisfaction as to

why the extreme penalty of dismissal is

imposed on the delinquent officer. The High

Court was, therefore, not justified in passing

the impugned order.”

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 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 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)

Civil Appeal No. 6301 of 2013 Page 26 of 46

of the CCA Rules is invoked. Bearing in mind the

position of law thus revealed from the

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.

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, the Under

Secretary to the Government of India served a

Memorandum 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)

Civil Appeal No. 6301 of 2013 Page 27 of 46

unauthorized absence from 01.09.2003 to leave

the country for taking post-doctoral research

without permission and (ii) publication of a

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

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 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

Civil Appeal No. 6301 of 2013 Page 28 of 46

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 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 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 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

Civil Appeal No. 6301 of 2013 Page 29 of 46

conducting an inquiry. It is submitted that the

contentions of the appellant 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, 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 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

Civil Appeal No. 6301 of 2013 Page 30 of 46

quintessential qualities expected in all

Scientists/Engineers of ISRO, which 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:-

(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,

(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 technologies would have

serious complications, and

Civil Appeal No. 6301 of 2013 Page 31 of 46

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 responsible scientist/engineer of

VSSC/ISRO, the appellant was duty bound to abide

by the conduct Rules and when the violation is

serious 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 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

Civil Appeal No. 6301 of 2013 Page 32 of 46

the CCA Rules in dismissing the 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.

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 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, Government of India. We are

Civil Appeal No. 6301 of 2013 Page 33 of 46

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 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 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 from

01.09.2003 to 28.11.2003 and continued to stay in

Civil Appeal No. 6301 of 2013 Page 34 of 46

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

co-authors in the 39

th

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 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 and kept on his

association with the said foreign institution

involved in the research on rocketry, which is a

Civil Appeal No. 6301 of 2013 Page 35 of 46

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 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 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 bereft of

substance and not a matter of concern in regard to

the security of the State. As noticed hereinbefore,

Civil Appeal No. 6301 of 2013 Page 36 of 46

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 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 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 the CCA

Rules. The second limb enables the disciplinary

Civil Appeal No. 6301 of 2013 Page 37 of 46

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 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

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 Rules viz., Rule 14 of the Railway

Servants Rules, found error inasmuch as the issue

was considered by confining to Rule 14 itself,

Civil Appeal No. 6301 of 2013 Page 38 of 46

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 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 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 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

Civil Appeal No. 6301 of 2013 Page 39 of 46

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” 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” 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 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

Civil Appeal No. 6301 of 2013 Page 40 of 46

paragraph 142 of Tulsiram Patel’s case (supra) it

was further held:

“142. The question under clause (c),

however, is not whether the security

of the State has been affected or not,

for the expression used in clause (c)

is “in the interest of the security of

the State.” The interest of the

security of the State may be affected

by actual acts or even the likelihood

of such acts taking place. Further,

what is required under clause (c) is

not the satisfaction of the President

or the Governor, as the case may be,

that the interest of the security of the

State is or will be affected but his

satisfaction that in the interest of the

security of the State, it is not

expedient to hold an inquiry as

contemplated by Article 311 (2). The

satisfaction of the President or the

Governor must, therefore, be with

respect to the expediency or

inexpediency of holding an inquiry in

Civil Appeal No. 6301 of 2013 Page 41 of 46

the interest of the security of the

State.

(emphasis added)

24.We have already taken note of the

indisputable and undisputed 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 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 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

Civil Appeal No. 6301 of 2013 Page 42 of 46

based on the subjective satisfaction of the

President based on materials. In the above

circumstances, we do not find any reason to

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 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 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

Civil Appeal No. 6301 of 2013 Page 43 of 46

decision in Tulsiram Patel’s case (supra), when

once such a power is invoked to dispense with

inquiry the 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 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 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

Civil Appeal No. 6301 of 2013 Page 44 of 46

circumstances or redeeming features if any

present in the 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

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 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

Civil Appeal No. 6301 of 2013 Page 45 of 46

or absolutely unwarranted. In other words, we do

not find any 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. The appeal,

therefore, must fail and accordingly it is dismissed,

however, without any cost.

……………………, J.

(M.R. Shah)

……………………, J.

(C.T. Ravikumar)

New Delhi;

May 12, 2023

Civil Appeal No. 6301 of 2013 Page 46 of 46