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PETITIONER: UNION OF INDIA & ANR.

       Vs.

RESPONDENT: BALBIR SINGH & ANR.

DATE OF JUDGMENT:       05/05/1998

BENCH: G.T. NANAVATI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Mrs. Sujata v. Manohar, J.      The respondent  was enrolled  as Sub-Inspector  in  the Delhi Police  in the  year 19167. In 1984 the respondent was working as a Sub-Inspector in Special Security District, New Delhi and  was posted  at the  residence of  the then  Prime Minister Mrs.  Indira Gandhi  for security purposes. On 31st of October, 1984 the then Prime Minister was assassinated by two members  of her  security staff,  namely,  Sub-Inspector Beant Singh and Constable Satwant Singh of the Delhi Police. In connection with the murder a criminal case was registered under Sections  307, 302  and 120-B of the Indian Penal Code read with  Section 25,  27, 54,  and 59 of the Arms Act. The respondent was arrested in connection with the said criminal case. In  view of  his arrest  on 8th  of December, 1984 the respondent  was   placed  under  suspension.  The  order  of suspension stated  that   a  Departmental  Enquiry  will  be conducted against the respondent.      In the  course of  investigation in  the said  criminal case certain  material  was  received  by  the  Intelligence Bureau.  In  view  of  the  material  so  received  and  the information gathered  by the Intelligence Bureau, a proposal was  mooted  by  the  Delhi  Police  for  dismissal  of  the respondent from  service on  account of his being associated with subversive  activities affecting  the security  of  the State.  In  connection  with  action  to  be  taken  against Government servants engaged in or associated with subversive activities undermining  security of  the State Under proviso (c)  to   Article  311(2)  without  holding  a  departmental inquiry, the  Ministry of Home Affairs, Government of India, Department of  Personnel  and  Administrative  Reforms,  has formulated  an   Office  Memorandum   dated  26.7.1980.  The Memorandum  inter   alia,  enumerates   different  kinds  of subversive activities.  These include cases where Government servants have  engaged in  activities of the following types which may affect/endanger the security of the State such as: (a)  Membership   of,  or  association  with,  any  body  or organisation declared unlawful after it was so declared; (b) participation  in   or  association  with  any  activity  or programme - (i) aimed at the subversion of the Constitution;

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or (ii) aimed at the organised breach or defiance of the law involving violence; or (iii) prejudicial to the integrity of India; or  (iv) which promotes on grounds of religion, race, language, caste  or community,  feelings of enmity or hatred between different  sections of  the people;  (c) association with organisations  engaged  in  subversive  activities,  in secret organisations  which while  professing to  work in  a democratic way  in fact,  engage in  activities to overthrow the present  political system,  or organisations  which have foreign inspiration  and liaison  for similar objectives. In such type  of cases  the Office Memorandum provides that the case should  be referred to a Committee of Advisors together with all relevant documents. The referral note should, inter alia, give  particulars  of  specific  facts,  incidents  or events which  the department  concerned feels, would justify action  under   the  proviso   to  Article   311(2)  of  the Constitution and not under the normal disciplinary rules. It should  also  contain  the  basis  and  reliability  of  the evidence as  also in  what manner these facts, incidences or events show  that the  official could  be brought within the meaning of  the activities  specified. In  essence the brief should contain  material  as  would  convince  a  reasonable person of the guilt which could, but for the confidentiality of the  matter, be  established in  normal proceedings.  The Memorandum  further   provides  that   where  the  competent authority is  the Head of a Department, if he and the Deputy Inspector General agree that sufficient grounds do not exist for proceeding  against the  employee under  proviso (c)  to Article 311(2)  of the  Constitution, the  matter should  be dropped. But in every other case, the Head of the Department should   refer;    the   case    to    the    Administrative Ministry/Department with  his recommendation.  On receipt of the recommendation  the  case  should  be  placed  before  a Committee of  Advisors for  its consideration. The Committee shall examine the case and make its recommendations.      The Committee  is a  high-power Committee  of  Advisors consisting of  the Home Secretary; the Secretary, Department of Personnel  and  Administrative  Reforms;  the  Secretary, Ministry   of    Law    and    Justice,    the    Secretary, Ministry/Department  concerned   with  the   case  and   the Director, Intelligence  Bureau or  his nominee who shall not be below  the rank  of Deputy  Director.  The  Committee  of Advisors is  required to  decide wh  ether, inter  alia,  on grounds  of   national  security   and  the  nature  of  the allegations made  against the  suspect,  it  is  or  is  not advisable or  necessary to  disclose the allegations against the  suspect   or  to  call  for  his  replay  thereto.  The Committee, after  considering all  the facts, is required to recommend whether  action should  be taken for the dismissal or removal  of the  Government servant  from  service  under proviso (c)  to Article 311(2) of the Constitution without a departmental inquiry. If the recommendation of the Committee of Advisors is for taking such action, the recommendation is required to be placed before the Minister in the Ministry of Home Affairs  for his  order. It is only thereafter that the order of  dismissal under  proviso (c) to Article 311(2) can be issued.  An order under proviso (c) to Article 311(2) so, therefore,  issued  after  a  detailed  examination  of  all relevant facts by a committee of very senior and experienced Administrators in  various Ministries  with the  approval of the ministries concerned.      In the  present case,  in view  of the  information and documents in  the possession of the Intelligence Bureau, the entire matter  was placed  before the  Committee of Advisors Constituted as  per the  said Memorandum.  The Committee  of

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Advisors recommended that the respondent should be dismissed from service  under proviso (c) to Article 311(2) in view of the material  which was  placed before  it. On  the basis of this recommendation,  an order  was issued under proviso (c) to Article  311(2) by  the President of India dismissing the respondent w.e.f. 16.3.1985. The order expressly stated that a Departmental  Enquiry  ordered  vide  Office  Order  dated 8.12.1984 against the respondent was thereby dropped.      In the  criminal trial,  the respondent  was  convicted along with two others and was sentenced to death. The appeal of the accused was dismissed by the  High Court which upheld that conviction. However, on appeal to the Supreme Court the respondent by  an order  of the Supreme Court dated 3.8.1988 was acquitted  [Vide 1988  (3) SCC 609 paragraph 46 onwards, Khar Singh and Ors. v. State (Delhi Administration)].      On  23rd   of  April,  1990  the  respondent  filed  an application  before  the  Central  Administrative  Tribunal, Principal  Bench,   new  Delhi,  challenging  his  order  of dismissal dated  16th of  March, 1985. He rayed for quashing the order  and for  a direction  to the  appellant herein to reinstate him in service with retrospective effect, with all consequential benefits.  The Tribunal,  by its  order  dated 8.8.1994  dismissed   the  application   on  the  ground  of limitation. This  Court, however,  granted a  special  leave petition filed  by the  respondent and  by its  order  dated 22.8.1995 directed  the Tribunal to treat the application as having been filed within time and to examine the validity of the order  of dismissal in the light of the decision of this Court in A.K. Kaul and Anr. v. Union of India and Anr. (1995 (4) SCC  page 73).  The  Tribunal  thereafter  examined  the application of  the respondent  on merit.  By  its  impugned order dated  14th December,  1995 the  Tribunal allowed  the application of  the respondent. Hence the present appeal has been filed  by the  appellants challenging  the order of the Tribunal.      In the case of A.K. Kaul and Anr. v. Union of India and Anr. (supra)  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 and Ors. v. Union of India and Ors. (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 Clause (c) to the second proviso to Article 311(2),  the Court  would b  e 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

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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 material and 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 & Ors. V. Mohinder Singh [1997] 3 SCC 68).      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.      In the  present case, there is no material to infer any mala fides. What is required to be seen is whether the order is  based   on  material   which  is  wholly  extraneous  or irrelevant, having  no bearing whatsoever on the security of the State.  The Tribunal  had called  upon the appellants to produce the  entire confidential material on which the order is based.  The Tribunal  h as held that  at least two of the files placed  before it  are highly  confidential. They  all relate to  the activities  of the  respondent which  have  a bearing on  the security  of the  State. This  is not a case where there  is  absolutely  no  material  relating  to  the activities of  the respondent prejudicial to the security of the State.  The entire material gathered by the Intelligence Bureau was  placed before  a very  high level  Committee  of Advisors under  the procedure  prescribed by  the Government Memorandum. This  was precisely  for the purpose of ensuring that when a Government servant is dismissed without enquiry, there should  be cogent  material to  indicate  that  it  is necessary to  do so  in the  interest of the security of the State. The  material was examined by the Advisory Committee. Thereafter, it advised the dismissal of the respondent under proviso (c)  to Article 311(@). Therefore, the President has issued an order under proviso (c) to Article 311(2).      In our  view, this  was not  a case  where there was no relevant material.  The Tribunal  could not have substituted its own  judgment for  the satisfaction  of the President of India. The Tribunal is under a misapprehension when it holds that if  the respondent  could be  criminally  prosecuted  a Departmental Enquiry  could have  been held  on the basis of this same  material. The  respondent placed  reliance on the observations to  this effect made by the Andhra Pradesh High Court in  B. Bhaskara  Reddy v. Government of Andhra Pradesh (1981 (1)  SLR 249.  The Tribunal  has not  noted  that  the material which  was placed by the Intelligence Bureau before the Advisory  Committee and  the President  did  not  relate merely to  the  assassination  of  the  Prime  Minister.  It related to  various other  activities of  the respondent  as well, which the authorities considered as prejudicial to the security of  the State.  The fact  that the  respondent  was subsequently acquitted  by this  Court in the criminal trial will not  make any  difference to the order which was passed by the  President on  the totality  of  material  which  was before the  authorities long  prior to the conclusion of the

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criminal trial.      The appeal  is, therefore,  allowed. The impunged order of the  Tribunal is  set aside  and the application filed by the respondent before the Tribunal is dismissed. There will, however, be no order as to costs.