REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2797 OF 2011 [Arising out of S.L.P (C) No. 9032 of 2011]

                             CC No. 4808/11

Union of India and Anr.                           …. Appellants

Versus

M.M. Sharma                                    ....Respondent

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. Delay condoned.

2. Leave granted.

3. The present appeal is directed against the judgment and  

order dated 27.09.2010 whereby the Delhi High Court partly  

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allowed  the  writ  petition  filed  by  the  respondent  herein  by  

issuing a direction to the appellants to pass a speaking order  

by giving reasons for imposing the penalty of dismissal  from  

service  in  exercise  of  powers  under  Article  311(2)(c)  of  the  

Constitution and not any other penalty.

4. In  order  to  appreciate  the  contentions  raised  by  the  

parties hereto some basic facts leading to filing of the aforesaid  

writ petition in the High Court must be stated.   

5. The  respondent  was  posted  as  First  Secretary  w.e.f.  

02.07.2007  to  03.05.2008 in  the  Embassy  of  India,  Beijing,  

China.   While  on  special  assignment,  the  respondent  came  

under  adverse  notice  and  was  found  to  be  involved  in  an  

unauthorized and undesirable liaison with foreign nationals of  

the host country.  The conduct of the respondent was enquired  

into  by  the  Intelligence  Bureau  (IB).   The  Director,  upon  

completion  of  the  said  inquiry  forwarded  a  detailed  report  

including findings of the Inquiry Officer.   The aforesaid report  

was considered and it was felt that in view of the seriousness of  

the case and the adverse implications on the security of the  

State, it would not be expedient to hold the inquiry due to the  

following reasons: -

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(i) The  respondent  was  on  special  assignment  and  entrusted with responsible duties of external intelligence.  Any formal inquiry would jeopardize security of India, as it  would reveal details of intelligence operation in the host  country.

(ii) For  a  proper  disciplinary  inquiry  to  be conducted,  witnesses would be required to be examined.  In this case  witnesses  can  be  either  foreign  nationals  or  officers  working  under  cover  in  Indian  Embassy  in  China  and  examination  thereof  would  certainly  jeopardize  the  security of the State.

6. Consequently,  the  competent  authority  took  a  decision  

that the services of the respondent should be dispensed with by  

exercising powers under Clause (c) of Second Proviso to Article  

311(2)  of  the  Constitution  of  India.   Consequent  thereto  an  

order dated 22.12.2009 was issued intimating and stating that  

the President is satisfied to invoke Clause (c) of Second Proviso  

to Article 311(2) of the Constitution of India that in the interest  

of  the  security  of  the  State  it  is  not  expedient  to  hold  the  

inquiry in the case of the respondent.  It was also mentioned in  

the said order that the President is also satisfied that on the  

basis of information available the activities of the respondent  

are such as to warrant his dismissal from the service.

7. The respondent challenged the aforesaid order by filing an  

Original Application before the Central Administrative Tribunal,  

Principal  Bench,  New  Delhi  (hereinafter  referred  to  as  ‘the  

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Tribunal’) which was registered as OA No. 176 of 2009.  In the  

said Original Application contentions raised inter alia were that  

the order dated 22.12.2008 passed in exercise of power under  

Clause  (c)  of  Second  Proviso  to  Article  311(2)  of  the  

Constitution  of  India  should  be  set  aside.   The  aforesaid  

application was heard and the Tribunal  passed an order  on  

10.12.2009  disposing  of  the  said  Original  Application  by  

holding  that  the  order  does  not  reveal  that  there  has  been  

application of mind with regard to the nature of punishment to  

be  awarded  to  the  respondent.   The  Tribunal  directed  the  

Government  to  re-consider  whether  the  aforesaid  penalty  

awarded to the respondent could be substituted by any other  

punishment.   

8. Pursuant to the aforesaid order passed by the Tribunal  

the  matter  was  placed  before  the  competent  authority  once  

again and in compliance of the order of the Tribunal an order  

was passed by the Cabinet Secretariat, Government of India on  

03.06.2010, which reads as follows:

“WHEREAS Shri M.M. Sharma was dismissed from service  under the provisions of sub-clause (c) of the second proviso  to  clause  2  of  Article  311 of  the  Constitution  vide  order  No/2/2008-DO.II (A) 9Pt.I)-3643 dated 22.12.2008:

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AND  WHEREAS,  Shri  M.M.  Sharma  filed  an  Original   Application No. 176/2009 in the Principal Bench of Central   Administrative  Tribunal,  New  Delhi  praying  for  setting   aside  and  quashing  the  said  order  of  dismissal;  dated  22.12.2008.

AND WHEREAS the Hon’ble Tribunal in their order dated   10.12.2009  in  the  said  OA  No.  176/2009  directed  the  Government to consider whether the penalty of dismissal   could be substituted by ‘reduction in rank’ or the ex-officer   could be granted any pensionary benefits.

AND  WHEREAS,  the  Government,  in  pursuance  of   observations of Hon’ble Tribunal re-considered the case of   dismissal of Shri M.M. Sharma.

NOW,  THEREFORE,  the  President  orders  that  it  is  not  possible  either  to  substitute  the  penalty  of  Shri  M.M.   Sharma from ‘dismissal’ to ‘reduction in rank’ or to grant  him any pensionary benefits.

(BY ORDER AND IN THE NAME OF THE PRESIDENT) (K.B.S. KATOCH)

ADDITIONAL SECRETARY TO THE GOVT. OF INDIA”

9. The aforesaid order passed by the President came to be  

challenged before the Tribunal by the respondent by filing an  

Original Application which was registered as OA No. 2440 of  

2010.  The aforesaid application was taken up for hearing and  

the same was disposed of by the Tribunal vide its Judgment  

and Order dated 04.08.2010.  By the aforesaid Judgment and  

Order, the Tribunal dismissed the Original Application holding  

that the matter called for no interference in the hands of the  

Tribunal.   While  coming  to  the  aforesaid  conclusion  the  

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Tribunal hold that invocation of power under Article 311(2) (c) of  

the Constitution of India cannot be faulted with because of the  

sensitive nature of the issues involved, which have become final  

and binding on the parties.  It was also held that only question  

that was required to be decided by the competent authority was  

to  re-consider  the  nature  of  penalty  imposed  on  the  

respondent.

10. Since the Tribunal held the appellants have re-considered  

the question of punishment reiterating that it is not possible  

either  to  substitute  the  penalty  of  the  respondent  from  

‘dismissal’ to ‘reduction in rank’ or to grant him any pensionary  

benefits,  therefore,  the  same  indicates  and  establishes  the  

satisfaction  for  arriving  at  the  decision  of  the  competent  

authority to maintain the penalty of dismissal.   

11. The  aforesaid  order  was  challenged  by  the  respondent  

before the High Court of Delhi by filing a writ petition in which  

the High Court partly allowed the writ petition holding that the  

order  which  was  passed  by  the  competent  authority  on  

03.06.2010  was  not  a  reasoned  order.   The  High  Court  

therefore issued a direction that the appellants must pass a  

reasoned  order  showing  its  application  of  mind.   The  High  

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Court  set  aside  the  order  dated  04.08.2010  passed  by  the  

Tribunal and directed the appellants to give reasons for levying  

the penalty of dismissal from service and pass a fresh order.  

The aforesaid Judgment and Order passed by the High Court is  

under challenge in this appeal on which we heard the learned  

counsel  appearing  for  the  parties  and  also  scrutinised  the  

entire records.

12. Within the scheme of the Constitution of India, provisions  

relating to public service may be found in Articles 309, 310 and  

311.  It  is  important  to  note  that  these  provisions  (namely  

Articles 310 and 311) afford protection to public servants from  

penalty in the nature of dismissal, removal, or reduction which  

cannot be imposed without holding a proper inquiry or giving a  

hearing. An explicit articulation of “protection” in Article 311 of  

the  Constitution  itself  gives  an  impression  of  complete  

‘protection’ to the civil servants.  

13. Article 311 provides for protection to public servant from  

punitive  action  being  taken  against  them  by  an  authority  

subordinate to one who appointed him, or without holding an  

inquiry in accordance with law. Exceptions in Article 311 are  

contained in second proviso in the nature of clauses (a), (b) &  

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16. We have analyzed the facts of the present case and on  

such analysis, we find that even in the first order passed by the  

Tribunal on 10th December, 2009 itself it was clearly recorded  

that it could be held from the records, as available, that there  

essentially  was  no  arbitrariness  in  the  approach  of  the  

Government of India while dealing with an officer who had by  

his  conduct  showed  that  he  was  not  reliable  for  holding  

sensitive  or  superior  positions  and  therefore  invocation  of  

power under Article 311(2)(c) of the Constitution of India also  

cannot be faulted because of the sensitive nature of the issues.  

17. The  aforesaid  order  passed  by  the  Tribunal  in  the  due  

course has become final and binding as no challenge was made  

as against the aforesaid observation by any of the parties before  

any  higher  forum.   The  Tribunal,  however,  by  the  aforesaid  

order issued a direction to the Government to consider as to  

whether the penalty could be substituted by issuing a lesser  

punishment.   

18. In terms of the aforesaid order the competent authority  

reconsidered  the  matter  and  maintained  the  order  of  

punishment awarded to the respondent holding that it is not  

possible either to substitute the penalty of the respondent from  

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dismissal to reduction in rank or to grant him any pensionary  

benefit.  The said order therefore indicates that the direction of  

the  Tribunal  was  duly  complied  with  and  an  effective  and  

conscious decision was taken by the competent authority  to  

maintain the penalty of dismissal.

19. There are credible and substantial materials on record in  

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

Constitution.   The  aforesaid  action  of  invoking  the  extra  

ordinary provisions like clause (c) to second proviso to Article  

311(2)  was also found to be justified by the Tribunal  in the  

earlier stage of litigation itself.

20. Despite the said fact the High Court held that the order  

dated 04.08.2010 passed by the Tribunal not being a speaking  

order  showing  application  of  mind  cannot  be  upheld  and  

consequently the High Court passed the impugned order dated  

27.09.2010  thereby  setting  aside  the  order  passed  by  the  

Tribunal  with a direction to the  appellants herein to pass a  

fresh speaking order giving reasons for its decision.  The said  

findings of the High Court are being challenged in this appeal  

contending inter alia that a conscious and informed decision  

has been taken on the basis of materials on record to dismiss  

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the respondent from the service and the reasons for inability to  

hold an inquiry in the interest of the security of the State have  

also  been  recorded  although  there  is  no  such  mandate  to  

record  such  reasons.   The  records  indicate  that  there  are  

sufficient reasons and materials on record as to why the service  

of  the  respondent  was dispensed with  in  the  interest  of  the  

security  of  the  State.  We are  also  satisfied that  the  reasons  

contained in the records establish that in the facts of this case  

holding of an enquiry was rightly dispensed with in the interest  

of security of the country.  We must hasten to add that the  

Tribunal had in the earlier round of litigation upheld the action  

of the appellants in dispensing with the enquiry in the interest  

of the security of the State.  The said order of the Tribunal has  

also  become  final  and  binding.   Therefore,  challenge  in  the  

present  round  of  litigation  is  whether  the  appellants  are  

justified in awarding the punishment of dismissal from service  

on the respondent which also deprives him from getting any  

pensionary benefit.  

21. The original records were placed before us, which we have  

perused.   The  allegations  against  the  respondent  are  very  

serious which could jeopardize the sovereignty and integrity of  

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India.   The  records  also  disclose  the  highly  objectionable  

activities and conduct of the respondent which is unbecoming  

of a responsible Government servant.  The Inquiry Committee  

took the decision of not disclosing the grounds for taking action  

against the delinquent officer under clause (c) of the proviso to  

Article  311(2)  of  the  Constitution  because  disclosure  of  the  

same or holding of an inquiry has the potential to jeopardize  

national  security  and  relations  with  a  neighbouring  country  

and such disclosure could lead to gross embarrassment to the  

Government  of  India.   Intelligence  Bureau  has  already  

conducted an inquiry and findings of the inquiry officer were  

based on the  written statement  of  the  suspected officer  and  

other  officers;  analysis  of  phone  records;  and  recovery  of  

photographs from the laptop of the respondent.  In that context  

and in view of the reasons recorded it was concluded that the  

allegation had far reaching effects and therefore it was decided  

to dispense with holding of any inquiry in the matter and also  

to dismiss him from service.  

22. A very high level committee considered the entire record  

and the allegations against the respondent and on the basis of  

the  materials  available  on record,  the committee  prima facie  

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came  to  the  conclusion  that  action  could  be  taken  for  his  

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

the Constitution.  The aforesaid recommendation is available  

on record and the High Court could have called for such record  

and therefrom satisfy itself that there are sufficient and cogent  

reasons recorded for taking action under Article 311(2) (c) of  

the  Constitution  and  also  for  imposing  the  penalty  for  

dispensation  of  the  service  of  the  respondent  by  way  of  

dismissal from the service.   

23.   In our considered opinion, in the present case, charges  

against the delinquent officer  being very serious and also in  

view of  the  fact  that  the  respondent  was working  in  a  very  

sensitive post, it cannot be said to be a case of disproportionate  

punishment to the offence alleged.  The reasons recorded in the  

official file against the person for dismissing him from service  

need not be incorporated in the impugned order passed.

24. The High Court  while  passing  the  impugned order  was  

fully  and  effectively  aware  of  the  reasons  as  to  why  the  

requirement of holding an enquiry in accordance with law was  

dispensed with. Being so situated, the High Court could have  

examined and scrutinised the original records to ascertain for  

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itself as to whether the order imposing the penalty of dismissal  

of service is justified or not in the light of the allegations and  

the  reports  of  the  fact  finding  enquiry.   The  power  to  be  

exercised  under  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.  For taking action in due discharge  

of its responsibility for exercising powers under clause (a) or (b)  

or  (c)  it  is  nowhere  provided  that  the  disciplinary  authority  

must  provide  the  reasons  indicating  application  of  mind  for  

awarding punishment of dismissal. While no reason for arriving  

at the satisfaction of the President or the Governor, as the case  

may  be,  to  dispense  with  the  enquiry  in  the  interest  of  the  

security of the State is required to be disclosed in the order, we  

cannot  hold  that,  in  such  a  situation,  the  impugned  order  

passed against the respondent should mandatorily disclose the  

reasons for taking action of dismissal of his service and not any  

other penalty.  

25.  If  in  terms  of  the  mandate  of  the  Constitution,  the  

communication of the charge and holding of an enquiry could  

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be dispensed with, in view of the interest involving security of  

the State, there is equally for the same reasons no necessity of  

communicating the reasons for arriving at the satisfaction as to  

why  the  extreme  penalty  of  dismissal  is  imposed  on  the  

delinquent officer.  The High Court was, therefore, not justified  

in passing the impugned order.

26. For  the  aforesaid  reasons,  we  hold  that  the  order  and  

direction  passed  by  the  High  Court  cannot  be  sustained.  

Consequently,  we  set  aside  the  same  and  restore  the  order  

dated  04.08.2010  passed  by  the  Central  Administrative  

Tribunal, Principle Bench at New Delhi in OA No. 2440 of 2010.

27. The present appeal is accordingly allowed to the aforesaid  

extent leaving the parties to bear their own costs.

.............................................J            [Dr. Mukundakam Sharma]

                                                 .............................................J                                            [Anil R. Dave]

New Delhi, March 30, 2011.

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