# DR. V. R. SANAL KUMAR v. UNION OF INDIA & ORS

- **Citation:** [2023] 5 S.C.R. 772
- **Court:** Supreme Court of India
- **Decided:** 2023-05-12
- **Case number:** Civil Appeal No.6301 of 2013
- **Bench:** M. R. Shah, C. T. Ravikumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-v-r-sanal-kumar-v-union-of-india-ors-37128
- **Pages:** 28

## Headnote

Service Law:
Department of Space Employees (Classification, Control and
Appeal) Rules, 1976 - r. 16(iii) - Special procedure in certain cases
- Dismissal from service without holding any inquiry in the interest
of the security of the State, invoking power u/r. 16 (iii) - Interference
with - Appellant, high profile scientist in Indian Space Research
Organisation-ISRO - Disciplinary proceedings against the
appellant, alleging unauthorized absence from the country for
taking post-doctoral research without permission and publication
of a technical paper in the Conference in USA as first author with
a foreigner as one of the co-authors, without prior permission or
approval from the competent authority - Dismissed from service
from the date of absence - However, the tribunal held that the
dismissal of the appellant was with effect from the date of the
dismissal order, and quashed the order related to recovery of
subsistence allowance - Upheld by the High Court - On appeal,
held: When material capable of arriving at a satisfaction that it is
not expedient to hold an inquiry "in the interest of the security of
the State" are available, the decision in holding that it is inexpedient
"in the interest of the security of the State" to hold an inquiry
warrants no further scrutiny, rather, it is not fit to be subjected to
further judicial review - Having regard to appellant's role as high
profile scientist in ISRO and the role of ISRO as the space agency
of India, the appellant's unauthorized absence, unauthorized
association and persistent dealings with foreign institution especially
in the strategic research and development subject based on which
nation's rocketry and ambitious programs are/were advancing, was
a matter of concern for the security of the State - Respondent
organisation cannot be said to have committed a flaw or fault in
entertaining suspicion on his honesty, integrity, reliability,
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dependability and trustworthiness - Dismissal from the service
cannot be said to be illegal or absolutely unwarranted - Thus,
interference u/Art. 136 not called for - Judicial review - Constitution
of India - Arts. 311(2), 136.
Dismissing the appeal, the Court
HELD: 1.1 Clause (iii) of Rule 16 of the Department of
Space Employees (Classification, Control and Appeal) Rules,
1976 is a service rule virtually reproducing clause (c) of the
second proviso to Article 311 (2) of the Constitution of India
though the language used is not identical. The appellant did not
dispute that Rule 16 (iii) is in pari materia with clause (c) of the
second proviso to Article 311 (2). When once it is so found, there
cannot be any doubt with respect to the position, as settled in
Tulsiram Patel's case and reiterated in subsequent decisions, that
adherence to principles of natural justice i.e., conducting inquiry
after issuing charge sheet and providing hearing to a government
servant on those charges, in case of proposal to impose any of
the three major penalties-dismissal, removal or reduction in rank
would not arise when the power under Rule 16 (iii) of the CCA
Rules is invoked. Bearing in mind the position of law thus revealed
it is to be considered whether judicial review is called for or not
in respect of the challenge of the appellant against his removal
from service without holding an inquiry in invocation of the power
under Clause (iii) of Rule 16 of the CCA Rules. [Para 16][790-CF]
1.2 It is obvious that the appellant himself knew that he is
a high-profile scientist in ISRO, which is a highly sensitive and
strategic research and development organisation under the
Department of Space, Government of India. The Court cannot
be an island and feign oblivion of the pivotal role of a scientist/
engineer attached to ISRO and also the role of ISRO as the space
agency of India. Obviously, it is involved in science, engineering
and technology to harvest the benefits of outer space for India.
The appellant is a scientist/engineer in the VSSC,
Thiruvan

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[2023] 5 S.C.R.
 [2023] 5 S.C.R. 772
772
DR. V. R. SANAL KUMAR
v.
UNION OF INDIA & ORS.
(Civil Appeal No(s). 6301 of 2013)
MAY 12, 2023
[M. R. SHAH AND C. T. RAVIKUMAR, JJ.]
Service Law:
Department of Space Employees (Classification, Control and
Appeal) Rules, 1976 - r. 16(iii) - Special procedure in certain cases
- Dismissal from service without holding any inquiry in the interest
of the security of the State, invoking power u/r. 16 (iii) - Interference
with - Appellant, high profile scientist in Indian Space Research
Organisation-ISRO - Disciplinary proceedings against the
appellant, alleging unauthorized absence from the country for
taking post-doctoral research without permission and publication
of a technical paper in the Conference in USA as first author with
a foreigner as one of the co-authors, without prior permission or
approval from the competent authority - Dismissed from service
from the date of absence - However, the tribunal held that the
dismissal of the appellant was with effect from the date of the
dismissal order, and quashed the order related to recovery of
subsistence allowance - Upheld by the High Court - On appeal,
held: When material capable of arriving at a satisfaction that it is
not expedient to hold an inquiry "in the interest of the security of
the State" are available, the decision in holding that it is inexpedient
"in the interest of the security of the State" to hold an inquiry
warrants no further scrutiny, rather, it is not fit to be subjected to
further judicial review - Having regard to appellant's role as high
profile scientist in ISRO and the role of ISRO as the space agency
of India, the appellant's unauthorized absence, unauthorized
association and persistent dealings with foreign institution especially
in the strategic research and development subject based on which
nation's rocketry and ambitious programs are/were advancing, was
a matter of concern for the security of the State - Respondent
organisation cannot be said to have committed a flaw or fault in
entertaining suspicion on his honesty, integrity, reliability,
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dependability and trustworthiness - Dismissal from the service
cannot be said to be illegal or absolutely unwarranted - Thus,
interference u/Art. 136 not called for - Judicial review - Constitution
of India - Arts. 311(2), 136.
Dismissing the appeal, the Court
HELD: 1.1 Clause (iii) of Rule 16 of the Department of
Space Employees (Classification, Control and Appeal) Rules,
1976 is a service rule virtually reproducing clause (c) of the
second proviso to Article 311 (2) of the Constitution of India
though the language used is not identical. The appellant did not
dispute that Rule 16 (iii) is in pari materia with clause (c) of the
second proviso to Article 311 (2). When once it is so found, there
cannot be any doubt with respect to the position, as settled in
Tulsiram Patel's case and reiterated in subsequent decisions, that
adherence to principles of natural justice i.e., conducting inquiry
after issuing charge sheet and providing hearing to a government
servant on those charges, in case of proposal to impose any of
the three major penalties-dismissal, removal or reduction in rank
would not arise when the power under Rule 16 (iii) of the CCA
Rules is invoked. Bearing in mind the position of law thus revealed
it is to be considered whether judicial review is called for or not
in respect of the challenge of the appellant against his removal
from service without holding an inquiry in invocation of the power
under Clause (iii) of Rule 16 of the CCA Rules. [Para 16][790-CF]
1.2 It is obvious that the appellant himself knew that he is
a high-profile scientist in ISRO, which is a highly sensitive and
strategic research and development organisation under the
Department of Space, Government of India. The Court cannot
be an island and feign oblivion of the pivotal role of a scientist/
engineer attached to ISRO and also the role of ISRO as the space
agency of India. Obviously, it is involved in science, engineering
and technology to harvest the benefits of outer space for India.
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
DR. V. R. SANAL KUMAR v. UNION OF INDIA & ORS.
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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 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
39th American Institute of Aeronautics and Astronautics (AIAA)
Joint Propulsion Conference, USA, without obtaining approval
of the competent authority. Though he rejoined duty on
27.03.2004 with full knowledge that his application for sabbatical
leave was not sanctioned he left for South Korea in March, 2004
without giving information to and obtaining permission from the
organization. He re-joined duty on 18.05.2004 and then, went
back to South Korea on 28.05.2004 without permission from the
authorities. The said factual aspects would reveal that without
permission from the competent authority the appellant went to
South Korea, joined Andong National University, South Korea
and assisted Prof. H.D. Kim, Head of School of Mechanical
Engineering and kept on his association with the said foreign
institution involved in the research on rocketry, which is a
strategic research and development subject in ISRO. AnnexureP1 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
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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. 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. [Para 21][793-FH; 794-A-H; 795-A-C]
1.3 Rule 16 (iii) of the CCA Rules requires no analytical
approach to understand that it contains two limbs. Firstly, to attract
it requires the satisfaction of the President that "in the interest
of the security of the State" it is not expedient to hold any inquiry
in the manner provided in the CCA Rules. The second limb
enables the disciplinary authority to consider, having regard to
the circumstances of the case to consider and make such orders
thereon, as it deems fit. In the instant case, in invocation of the
provision of Rule 16 (iii) of the CCA Rules, order was passed
dismissing the appellant from service with effect from 01.09.2003
without conducting inquiry upon the satisfaction of the President
that it is not expedient to hold any inquiry in the manner provided
in the CCA Rules "in the interest of the security of the State".
[Para 22][795-D-F]
1.4 There is no hesitation to hold that a bare perusal of the
order of the tribunal would reveal that the tribunal had considered
the question not confining its consideration only to Rule 16 (iii)
of the CCA Rules but also taking into consideration the source
of power derived from the second proviso to Article 311 (ii) of
DR. V. R. SANAL KUMAR v. UNION OF INDIA & ORS.
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the Constitution of India. Obviously, the question whether it is
expedient to hold an inquiry as provided under the CCA Rules
has to be considered and the satisfaction as to its expediency or
inexpediency has to be reached based on "interest of the security
of the State". The meaning and scope of the expression 'security
of the State' has been considered by the Constitution Bench in
Tulsiram Patel's case. [Para 23][796-B-C]
1.5 There is absolutely no reason to hold that the satisfaction
that it is not expedient to hold an inquiry "in the interest of
security of the State" was arrived at without any material. When
once it is obvious that circumstances based on materials capable
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 based on the subjective satisfaction of
the President based on materials. Thus, there is no reason to
interfere with the disinclination on the part of the tribunal and
then the High Court, on the said issue. [Para 24][797-D-F]
1.6 The retrospectivity given to the order of dismissal from
01.09.2003-the date of absence was interfered with, by the
tribunal. It has become final and it was given effect to by the
respondent organization by modifying the date of its effect from
the date of the order of dismissal. Though it has been held that
such an order would be open to challenge on the ground of mala
fides or being based wholly on extraneous grounds, it is relevant
to note that in the case on hand, the order of dismissal is not put
to challenge on any of such grounds. Furthermore, it has been
held that the disciplinary authority while deciding the question
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
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extenuating circumstances or redeeming features if any present
in the case and so on and so forth. Such aspects were looked into
by the tribunal. The acts and omissions on the part of the appellant
having regard to his role as a scientist/engineer in ISRO and the
role of ISRO as the space agency of India have been referred. It
is not the mere unauthorized absence of the appellant that actually
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 or absolutely unwarranted. There is no reason
to hold that the judgment of the High Court, dismissing the
challenge against the order of the tribunal warrants any kind of
interference in exercise of the power under Article 136 of the
Constitution of India. [Para 25][797-G-H; 798-A-D-H; 799-A]
Union of India and Anr. v. Tulsiram Patel and Ors. (1985)
3 SCC 398 : [1985] 2 Suppl. SCR 131 - followed.
Southern Rly. & Anr. v. T.R. Chellappan 1976 3 SCC
190 : [1976] 1 SCR 783 - relied on.
Divisional Personnel Officer,Union of India v. Balbir
Singh (1998) 5 SCC 216; A.K. Kaul v. Union of India
(1995) 4 SCC 73 : [1995] 3 SCR 469; Union of India
v. M.M. Sharma (2011) 11 SCC 293 : [2011] 6 SCR 18
- referred to.
Case Law Reference
(1998) 5 SCC 216
referred to
Para 12
[1995] 3 SCR 469
referred to
Para 12
[2011] 6 SCR 18
referred to
Para 14
DR. V. R. SANAL KUMAR v. UNION OF INDIA & ORS.
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[1985] 2 Suppl. SCR 131
followed
Para 16, 23, 25
[1976] 1 SCR 783
relied on
Para 25
CIVIL APPELLATE JURISDICTION : Civil Appeal No.6301
of 2013.
From the Judgment and Order dated 16.01.2012 of the High Court
of Kerala at Ernakulam in WP (C) No.33421of 2008 (S).
Gopal Sankaranarayanan, S. N. Bhat, Sr. Advs., Ms. Malini
Poduval, Ms. Babita Sant, Savya Sachi Narayanan, Advs. for the
Appellant.
K. M. Nataraj, A.S.G., Shailesh Madiyal, Vinayaka S. Pandit,
Sharath Nambiar, Mohd. Akhil, Indira Bhakar, T. S. Sabarish, Annirudh
Sharma - II, Amrish Kumar, Krishan Pal Mavi, Ms. Binu Tamta, Advs.
for the Respondents.
The Judgment of the Court was delivered by
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.
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.
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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 processing
his request for leave, he reached South Korea to carry out his postdoctoral 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 39th
American Institute of Aeronautics and Astronautics (AIAA) Joint
Propulsion Conference, USA held during July, 2003, without obtaining
specific approval of the Competent Authority. Thereupon, disciplinary
action was initiated against the appellant and he was charge-sheeted on
19.12.2003 for unauthorized absence and publication of papers without
following due procedure or obtaining approval of the Competent Authority.
3. The appellant re-joined duty on 23.01.2004 and again left for
South Korea in March, 2004 without any information to the Organization
or its permission. Though he attended the preliminary hearing in the
departmental inquiry, he had chosen not to take part in further
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 refund the subsistence allowance drawn after
DR. V. R. SANAL KUMAR v. UNION OF INDIA & ORS.
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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. 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 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
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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 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. 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
DR. V. R. SANAL KUMAR v. UNION OF INDIA & ORS.
[C. T. RAVIKUMAR, J.]
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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 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. Chellappan2 that having regard to the meaning of the word
used in the context of the phrase "the Disciplinary Authority may consider
the circumstances of the case and make such orders thereon as it deems
fit" under Rule 14(1) of the Railway Servants (Discipline and Appeal)
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
1 (1985) 3 SCC 398
2 1976 3 SCC 190
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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 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 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
DR. V. R. SANAL KUMAR v. UNION OF INDIA & ORS.
[C. T. RAVIKUMAR, J.]
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Acts or made under the proviso of Article 309; and in the
case of clause (c) of the second proviso to Article 311 (2), the
inquiry is to be dispensed with not on the personal satisfaction
of the President or the Governor but on his satisfaction arrived
at with the aid and on the advice of the Council of Ministers."
"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..."
"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
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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 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 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
DR. V. R. SANAL KUMAR v. UNION OF INDIA & ORS.
[C. T. RAVIKUMAR, J.]
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showing cause against such penalty proposed to be imposed
upon him can be afforded to the delinquent government
servant. Undoubtedly, the disciplinary authority must have
regard to all the facts and circumstances of the case as set
out in Challappan case. As pointed out earlier, considerations
of fair play and justice requiring a hearing to be given to a
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 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
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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 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 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 subjectmatter of the inquiry. This submission is correct so far as it
DR. V. R. SANAL KUMAR v. UNION OF INDIA & ORS.
[C. T. RAVIKUMAR, J.]
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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 security of the State as
much as those acts would."
 12. In the decision in Union of India v. Balbir Singh3, this Court
referred to the earlier decision in A.K. Kaul v. Union of India4, in
paragraph 7 as under: -
"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 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).