DR. V. R. SANAL KUMAR versus UNION OF INDIA & ORS.

[2023] 5 S.C.R.

DR. V. R. SANAL KUMAR

UNION OF INDIA & ORS.

(Civil Appeal No(s). 6301 of 2013)

BMAY 12, 2023

[M. R. SHAH AND C. T. RAVIKUMAR, JJ.]

Service Law:

Department of Space Employees (Classification, Control andCAppeal) Rules, 1976 – r. 16(iii) – Special procedure in certain cases– Dismissal from service without holding any inquiry in the interestof the security of the State, invoking power u/r. 16 (iii) – Interferencewith – Appellant, high profile scientist in Indian Space ResearchOrganisation-ISRO – Disciplinary proceedings against theappellant, alleging unauthorized absence from the country forDtaking post-doctoral research without permission and publicationof technical paper in the Conference in USA as first author witha foreigner as one of the co-authors, without prior permission orapproval from the competent authority – Dismissed from servicefrom the date of absence – However, the tribunal held that theEdismissal of the appellant was with effect from the date of thedismissal order, and quashed the order related to recovery ofsubsistence allowance – Upheld by the High Court – On appeal,held: When material capable of arriving at satisfaction that it isnot expedient to hold an inquiry “in the interest of the security ofthe State” are available, the decision in holding that it is inexpedientF“in the interest of the security of the State” to hold an inquirywarrants no further scrutiny, rather, it is not fit to be subjected tofurther judicial review – Having regard to appellant’s role as highprofile scientist in ISRO and the role of ISRO as the space agencyof India, the appellant’s unauthorized absence, unauthorizedGassociation and persistent dealings with foreign institution especiallyin the strategic research and development subject based on whichnation’s rocketry and ambitious programs are/were advancing, wasa matter of concern for the security of the State – Respondentorganisation cannot be said to have committed flaw or fault inentertaining suspicion on his honesty, integrity, reliability,H

dependability and trustworthiness – Dismissal from the servicecannot be said to be illegal or absolutely unwarranted – Thus,interference u/Art. 136 not called for – Judicial review – Constitutionof India – Arts. 311(2), 136.

Dismissing the appeal, the Court

HELD: 1.1 Clause (iii) of Rule 16 of the Department ofSpace Employees (Classification, Control and Appeal) Rules,1976 is service rule virtually reproducing clause (c) of thesecond proviso to Article 311 (2) of the Constitution of Indiathough the language used is not identical. The appellant did notdispute that Rule 16 (iii) is in pari materia with clause (c) of thesecond proviso to Article 311 (2). When once it is so found, therecannot be any doubt with respect to the position, as settled inTulsiram Patel’s case and reiterated in subsequent decisions, thatadherence to principles of natural justice i.e., conducting inquiryafter issuing charge sheet and providing hearing to governmentservant on those charges, in case of proposal to impose any ofthe three major penalties-dismissal, removal or reduction in rankwould not arise when the power under Rule 16 (iii) of the CCARules is invoked. Bearing in mind the position of law thus revealedit is to be considered whether judicial review is called for or notin respect of the challenge of the appellant against his removalfrom service without holding an inquiry in invocation of the powerunder Clause (iii) of Rule 16 of the CCA Rules. [Para 16][790-C-F]1.2 It is obvious that the appellant himself knew that he isa high-profile scientist in ISRO, which is highly sensitive andstrategic research and development organisation under theDepartment of Space, Government of India. The Court cannotbe an island and feign oblivion of the pivotal role of scientist/engineer attached to ISRO and also the role of ISRO as the spaceagency of India. Obviously, it is involved in science, engineeringand technology to harvest the benefits of outer space for India.The appellant is scientist/engineer in the VSSC,Thiruvananthapuram of ISRO. After applying for sabbatical leavefor one year and when the competent authority decided not torecommend the leave in exigency of service, he applied for ninedays’ earned leave from 21.08.2003 to 29.08.2003 on personal

Agrounds and then went to South Korea. On reaching South Korea,through e- mail dated 01.09.2003, the appellant intimated hisDivisional Head in VSSC regarding his arrival in South Korea tocarry out his post-doctoral research and to assist Prof. H.D. Kim,Head of School of Mechanical Engineering, Andong NationalUniversity, South Korea. Though his application dated 18.07.2003Bwas not sanctioned, through another e-mail, he applied for 89days’ leave from 01.09.2003 to 28.11.2003 and continued to stayin South Korea despite being informed that his leave was notsanctioned and was required to report for duty not later than11.09.2003. It is also to be noted that before going to South KoreaCto join the aforesaid University, he had published technical paperas first author with foreigner as one of the co-authors in the39th American Institute of Aeronautics and Astronautics (AIAA)Joint Propulsion Conference, USA, without obtaining approvalof the competent authority. Though he rejoined duty on27.03.2004 with full knowledge that his application for sabbaticalDleave was not sanctioned he left for South Korea in March, 2004without giving information to and obtaining permission from theorganization. He re-joined duty on 18.05.2004 and then, wentback to South Korea on 28.05.2004 without permission from theauthorities. The said factual aspects would reveal that withoutEpermission from the competent authority the appellant went toSouth Korea, joined Andong National University, South Koreaand assisted Prof. H.D. Kim, Head of School of MechanicalEngineering and kept on his association with the said foreigninstitution involved in the research on rocketry, which is astrategic research and development subject in ISRO. Annexure-FP1 letter dated 28.08.2002 from Prof. H.D. Kim to himself,produced by the appellant, would reveal the nature of the researchproject in the laboratory of Prof. H.D. Kim and Annexure P4 wouldreveal the repeated advice to the appellant not to have any contactin future with any external agency, such as Andong NationalGUniversity, South Korea, without permission from appropriateauthorities in ISRO. The further indisputable facts would revealhis persistent dealings with that University ignoring suchinstructions. In such circumstances, his continued associationwith foreign agency/university, ignoring the fact that he is aresponsible scientist in the ISRO, which is highly sensitive andHstrategic research and development organization under theDepartment of Space, Government of India, if viewed suspiciouslyand thought that his further exposure to ISRO’s critical rockettechnologies would create serious complications, it cannot besaid to be bereft of substance and not matter of concern inregard to the security of the State. Taking into account theexpertise of the appellant in the particular branch and that he hasbeen working under ISRO since 1992, there cannot be any doubtwith respect to the experience which he gathered in the subjectfrom ISRO and in such circumstances leaving to foreign countrywithout prior permission and continuing there for considerablelong period despite advice and instructions to come back andcontinuing to associate with such foreign organisation/universityresearching on rocketry, the respondent organisation cannot besaid to have committed flaw or fault in entertaining suspicionon his honesty, integrity, reliability, dependability andtrustworthiness and above all to treat such acts as matter ofconcern in relation to the security of the State. [Para 21][793-F-H; 794-A-H; 795-A-C]

1.3 Rule 16 (iii) of the CCA Rules requires no analyticalapproach to understand that it contains two limbs. Firstly, to attractit requires the satisfaction of the President that “in the interestof the security of the State” it is not expedient to hold any inquiryin the manner provided in the CCA Rules. The second limbenables the disciplinary authority to consider, having regard tothe circumstances of the case to consider and make such ordersthereon, as it deems fit. In the instant case, in invocation of theprovision of Rule 16 (iii) of the CCA Rules, order was passeddismissing the appellant from service with effect from 01.09.2003without conducting inquiry upon the satisfaction of the Presidentthat it is not expedient to hold any inquiry in the manner providedin 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 bare perusal of theorder of the tribunal would reveal that the tribunal had consideredthe question not confining its consideration only to Rule 16 (iii)of the CCA Rules but also taking into consideration the sourceof power derived from the second proviso to Article 311 (ii) of

Athe Constitution of India. Obviously, the question whether it isexpedient to hold an inquiry as provided under the CCA Ruleshas to be considered and the satisfaction as to its expediency orinexpediency has to be reached based on “interest of the securityof the State”. The meaning and scope of the expression ‘securityof the State’ has been considered by the Constitution Bench inBTulsiram Patel’s case. [Para 23][796-B-C]

1.5 There is absolutely no reason to hold that the satisfactionthat it is not expedient to hold an inquiry “in the interest ofsecurity of the State” was arrived at without any material. Whenonce it is obvious that circumstances based on materials capableCof arriving at satisfaction that it is not expedient to hold aninquiry “in the interest of the security of the State” are availablethe decision in holding that it is inexpedient “in the interest ofthe security of the State” to hold an inquiry warrants no furtherscrutiny, rather, it is not fit to be subjected to further judicialDreview. In other words, the Court cannot, in such circumstances,judge on the expediency or inexpediency to dispense with theinquiry as it was arrived at based on the subjective satisfaction ofthe President based on materials. Thus, there is no reason tointerfere with the disinclination on the part of the tribunal andthen the High Court, on the said issue. [Para 24][797-D-F]E1.6 The retrospectivity given to the order of dismissal from01.09.2003-the date of absence was interfered with, by thetribunal. It has become final and it was given effect to by therespondent organization by modifying the date of its effect fromthe date of the order of dismissal. Though it has been held thatFsuch an order would be open to challenge on the ground of malafides or being based wholly on extraneous grounds, it is relevantto note that in the case on hand, the order of dismissal is not putto challenge on any of such grounds. Furthermore, it has beenheld that the disciplinary authority while deciding the questionGas to what penalty should be imposed on the delinquent employeein the facts and circumstances of particular case would have totake into account the entire conduct of the delinquent employee,a gravity of the misconduct committed by him, the impact whichhis misconduct is likely to have on the administration and other

extenuating circumstances or redeeming features if any presentin the case and so on and so forth. Such aspects were looked intoby the tribunal. The acts and omissions on the part of the appellanthaving regard to his role as scientist/engineer in ISRO and therole of ISRO as the space agency of India have been referred. Itis not the mere unauthorized absence of the appellant that actuallyweighed with the authority and evidently, the organization isperfectly justified in casting suspicion on the honesty, integrity,reliability, dependability and trustworthiness in view of the factualsituation obtained in this case, as explained in the counter affidavit,besides entertaining the stand that his unauthorized associationwith foreign institution, especially in the area of propulsion, whichis strategic research and development subject in theorganization and based on which the nation’s rocketry andambitious launch vehicle programs are/were advancing, was amatter of concern for the security of the State. When such acts/conduct occur/occurs from scientist in sensitive and strategicorganization, the decision to impose dismissal from service cannotbe said to be illegal or absolutely unwarranted. There is no reasonto hold that the judgment of the High Court, dismissing thechallenge against the order of the tribunal warrants any kind ofinterference in exercise of the power under Article 136 of theConstitution 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 SCC190 : [1976] 1 SCR 783 – relied on.

Divisional Personnel Officer,Union of India v. BalbirSingh(1998) 5 SCC 216;A.K. Kaul v. Union of India(1995) 4 SCC 73 : [1995] 3 SCR 469;Union of Indiav. M.M. Sharma(2011) 11 SCC 293 : [2011] 6 SCR 18

– referred to.

Case Law Reference

(1998) 5 SCC 216[1995] 3 SCR 469[2011] 6 SCR 18

referred toreferred toreferred to

Para 12Para 12Para 14

ABC

A[1985] 2 Suppl. SCR 131followed

Para 16, 23, 25

[1976] 1 SCR 783

relied onPara 25

CIVIL APPELLATE JURISDICTION : Civil Appeal No.6301of 2013.

BFrom the Judgment and Order dated 16.01.2012 of the High Courtof Kerala at Ernakulam in WP (C) No.33421of 2008 (S).

Gopal Sankaranarayanan, S. N. Bhat, Sr. Advs., Ms. MaliniPoduval, Ms. Babita Sant, Savya Sachi Narayanan, Advs. for theAppellant.

CK. M. Nataraj, A.S.G., Shailesh Madiyal, Vinayaka S. Pandit,Sharath Nambiar, Mohd. Akhil, Indira Bhakar, T. S. Sabarish, AnnirudhSharma – II, Amrish Kumar, Krishan Pal Mavi, Ms. Binu Tamta, Advs.for the Respondents.

The Judgment of the Court was delivered byDC. T. RAVIKUMAR, J.

1. The petitioner in W.P. (C) No.33421 of 2008, who isunsuccessful in his challenge against the order of his dismissal fromservice without inquiry in the interest of the security of the State, filedthis appeal by Special Leave against the judgment dated 16.01.2012Epassed thereon, by the High Court of Kerala. As per the impugnedjudgment the High Court dismissed the challenge against the order dated30.09.2008 of the Central Administrative Tribunal, Ernakulam Bench inO.A. No. 653 of 2007.

2. Compendiously stated, the case that culminated in the impugnedFjudgment is as follows:

The appellant was initially appointed as Scientist/Engineer ‘SC’ inGroup-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/GEngineer ‘SD’. While so, on 28.08.2002, the appellant was invited byProf. H.D. Kim, Head of School of Mechanical Engineering, AndongNational University, South Korea, to join as post-doctoral trainee andto assist him for one year, recognizing the appellant as well-knownexpert on the starting and transient flows in the Solid Rocket Motors.HOn 18.07.2003, the appellant applied for sabbatical leave for one year.

The competent Authority decided not to recommend the leave in theexigency of service and in public interest. The appellant applied for 9days Earned Leave from 21.08.2003 to 29.08.2003 on personal groundsand soon went to South Korea. Through e-mail dated 01.09.2003, heintimated his Divisional Head in VSSC that due to the delay in processinghis request for leave, he reached South Korea to carry out his post-doctoral research at Andong National University in South Korea. Theappellant sent another leave application, through e-mail, for 89 days from01.09.2003 to 28.11.2003. As per e-mail dated 05.09.2003, the appellantwas informed that his leave was not sanctioned and he was required toreport for duty not later than 11.09.2003. Meanwhile, the respondentorganization came to know that the appellant had published technicalpaper as first author with foreigner as one of the co-authors in the 39[th]American Institute of Aeronautics and Astronautics (AIAA) JointPropulsion Conference, USA held during July, 2003, without obtainingspecific approval of the Competent Authority. Thereupon, disciplinaryaction was initiated against the appellant and he was charge-sheeted on19.12.2003 for unauthorized absence and publication of papers withoutfollowing due procedure or obtaining approval of the Competent Authority.

3. The appellant re-joined duty on 23.01.2004 and again left forSouth Korea in March, 2004 without any information to the Organizationor its permission. Though he attended the preliminary hearing in thedepartmental inquiry, he had chosen not to take part in furtherproceedings. Ergo, the inquiry was conducted ex-parte and the copy ofthe Inquiry Report holding the charges as proved submitted by the InquiryOfficer, was sent to him.

4. Meanwhile, the appellant unsuccessfully preferred two OriginalApplications before the Central Administrative Tribunal viz., O.A. Nos.150/2004 and 529/2004. Later, he came back to India and re-joined dutyon 18.05.2004. Again, the appellant went back to South Korea on28.05.2004 without obtaining permission from the authorities.Consequently, as per Order dated 13.07.2004 he was suspended fromservice pending disciplinary action. Ultimately, as per Order dated11.08.2007, the appellant was dismissed from service with effect from01.09.2003 under clause (iii) of Rule 16 of Department of SpaceEmployees’ (Classification, Control and Appeal) Rules, 1976, hereinafterreferred for short ‘the CCA Rules’. Vide Order dated 13.08.2007, theappellant was asked to refund the subsistence allowance drawn after

A01.09.2003, as he was dismissed w.e.f. 01.09.2003. The appellant filedO.A. No. 653 of 2007 seeking quashment of the order of dismissal fromservice and also order directing refund of subsistence allowance drawnafter 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 TribunalBannulled 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 necessary sequel to the annulment of retrospectivity, itwas ordered that there should be no recovery of subsistence allowanceand hence, the order dated 13.08.2007 for recovery of subsistenceCallowance was quashed. Naturally, the prayer or reinstatement in servicewas rejected.

5. Both the appellant and the respondent Organization assailedthe 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, essentiallyDchallenging the order in O.A. No.653 of 2007 to the extent of effacingthe retrospective effect of the order of dismissal of the appellant hereinfrom 01.09.2003 and restricting its effect only from the date of the orderviz., 11.08.2007 and restraining recovery of subsistence allowance. Theappellant herein filed W.P. (C) No.33421 of 2008 aggrieved by thedisinclination to quash the order of dismissal and to order for hisEreinstatement in service. The High Court dismissed W.P. (C) No.33421of 2008 as per the impugned judgment and hence, this appeal by specialleave. It is required to be noted that subsequently, as per judgment dated16.02.2009 the High Court dismissed W.P. (C) No.4918 of 2008 filed bythe respondent Organisation and consequently, the order dated 31.05.2010Fwas issued giving effect to the order of the Tribunal in O.A. No.653 of2007 and modifying the date of effect of the order of dismissal from thevery date of the same.

6. Heard, Shri Gopal Sankaranarayanan, learned Senior Advocateappearing for the appellant and Shri Shailesh Madiyal, learned counselGfor respondent Nos.1 to 4.

7. Indisputably, the appellant was dismissed form service withoutany inquiry in the manner provided in ‘the CCA Rules’ invoking thepower under clause (iii) of Rule 16 of CCA Rules, which reads thus: -

“16. Special Procedure in certain casesH

Notwithstanding anything contained in Rules 11 to 15

(i)where any penalty is imposed on an employee on theground of conduct which has led to his conviction on acriminal charge; or

(ii)where the Disciplinary Authority is satisfied for reasonsto be recorded by it in writing that it is not reasonablypracticable to hold an inquiry in the manner providedin these Rules; or

(iii)where the President is satisfied that in the interest ofthe security of the State, it is not expedient to hold anyinquiry in the manner provided in these Rules,

the Disciplinary Authority may consider thecircumstances of the case and make such orders thereonas it deems fit: Provided that the employee may be givenan opportunity of making representation on the penaltyproposed to be imposed before any order is made in acase under Clause (i):

Provided further that the Commission shall be consulted,where such consultation is necessary, before any ordersare made in any case under this Rule.”

8. bare perusal of the afore-quoted provision and the secondproviso to Article 311 (2) of the Constitution of India would undoubtedlygo to show that the former is virtually service rule reproducing thesecond 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 theCCA Rules is in pari materia to clause (c) of the second proviso toArticle 311 (2) of the Constitution of India. As noticed hereinbefore, thedismissal of the appellant from service invoking the aforesaid powerwas upheld by the Central Administrative Tribunal and it also got theseal of approval from the High Court. Therefore, the question is whetherit requires further judicial review at the hands of this Court in exerciseof power under Article 136 of the Constitution of India based on thevarious contentions raised by the appellant. The position with respect tothe non-requirement of adherence to the principles of natural justice bycomplying with the mandate under Article 311(2) viz., holding an inquiryin which person holding civil post as referred to in Article 311(1) is

Ainformed of the charges against him and given an opportunity of beingheard in respect of those charges when the second proviso to Article311 (2) of the Constitution of India comes into play in the matter ofdismissal, removal or reduction in rank and other facets in such eventualityhave been considered by Constitution Bench of this Court in Union ofIndia and Anr. v. Tulsiram Patel and Ors.[1]. The exposition of laws onBsuch aspects thereunder have been reiterated many times thereafterby this Court. The decision in Tulsiram Patel’s case (supra)wouldreveal the position that compliance with the mandate under Article 311(2) and in that regard, issuance of charge sheet and hearing on the chargesto be given to Government servant, with respect to any of the aforesaidCthree major penalties proposed to be imposed upon him, would not arisewhen clause (c) of the second proviso to Article 311 (2) comes into playand the same would be the position in the case of service rules reproducingthe second proviso in whole or in part and whether the language used isidentical with that used in the second proviso or not.D9. 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 inpublic interest and for the public good and the Constitution makers whoinserted Article 311 (2) were the best persons to decide whether suchan exclusionary provision should be there and the situations in which thisprovision should apply. Furthermore, it was held therein that the law laidEdown in the decision in Divisional Personnel Officer, Southern Rly. &Anr. v. T.R. Chellappan[2]that having regard to the meaning of the wordused in the context of the phrase “the Disciplinary Authority may considerthe circumstances of the case and make such orders thereon as it deemsfit” under Rule 14(1) of the Railway Servants (Discipline and Appeal)FRules, 1968, that an objective consideration is possible “only if thedelinquent employee is heard and is given chance to satisfy the authorityregarding the final orders that may be passed by the said authority” isnot 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 everyGclause thereof and ultimately held that this phrase would leave no scopefor any kind of opportunity to be given to Government servant. It wasalso held that it would take away both the rights to have an inquiry heldin which the Government servant would be entitled to charge sheet1 (1985) 3 SCC 398H2 1976 3 SCC 190

and also the right to make representation on the proposed penalty. InTulsiram Patel and Ors. (supra), this Court further held that “interestof security of the State” might be affected by actual acts or even thelikelihood of such acts taking place. The satisfaction of the President orGovernor, as the case may be, must be with respect to the expediencyor inexpediency of holding an inquiry in the interest of the security of theState and an inquiry in which such an act would lead to disclosure ofsensitive information and also the use of information and hence such aninquiry into the acts would be prejudicial to the interest of the security ofthe State as much as those acts would, it was held.

10. The relevant recitals where the Constitution Bench observedand laid down the aforementioned positions of law in Tulsiram Patel’scase (supra) are as hereunder: -

“59. The position, therefore, is that the pleasure of thePresident or the Governor is not required to be exercised byeither of them personally, and that is indeed obvious from thelanguage of Article 311. Under clause (1) of that article agovernment servant cannot be dismissed or removed by anauthority subordinate to that by which he was appointed. Thequestion of an authority equal or superior in rank to theappointing authority cannot arise if the power to dismiss orremove is to be exercised by the President or the Governorpersonally. Clause (b) of the second proviso to Article 311equally makes this clear when the power to dispense with aninquiry is conferred by it upon the authority empowered todismiss, remove or reduce in rank government servant in acase where such authority is satisfied that for some reason,to be recorded by that authority in writing, it is not reasonablypracticable to hold such inquiry, because if it was the personalsatisfaction of the President or the Governor, the question ofthe satisfaction of any authority empowered to dismiss orremove or reduce in rank government servant would notarise. Thus, though under Article 310 (1) the tenure of agovernment servant is at the pleasure of the President or theGovernor, the exercise of such pleasure can be either by thePresident or the Governor acting with the aid and on theadvice of the Council of Ministers or by the authority specifiedin Acts made under Article 309 or in rules made under such

Acts or made under the proviso of Article 309; and in thecase of clause (c) of the second proviso to Article 311 (2), theinquiry is to be dispensed with not on the personal satisfactionof the President or the Governor but on his satisfaction arrivedat with the aid and on the advice of the Council of Ministers.”

“101... As pointed out above, clause (2) of Article 311embodies in express words the audi alteram partem rule. Thisprinciple of natural justice having been expressly excludedby constitutional provision, namely, the second proviso toclause (2) of Article 311, there is no scope for reintroducingit by side-door to provide once again the same inquiry whichthe constitutional provision has expressly prohibited. Wherea clause of the second proviso is applied on an extraneousground or ground having no relation to the situationenvisaged in that clause, the action in so applying it wouldbe mala fide, and, therefore, void. In such case theinvalidating factor may be referable to Article 14. This is,however, the only scope which Article 14 can have in relationto the second proviso, but to hold that once the second provisois properly applied and clause (2) of Article 311 excluded,Article 14 will step in to take the place of clause (2) would beto nullify the effect of the opening words of the second provisoand thus frustrate the intention of the makers of theConstitution…”

“114. So far as Challappan case is concerned, it is not possibleto find any fault either with the view that neither clause (a) ofthe second proviso to Article 311 (2) nor clause (i) of Rule 14of the Railway Servants Rules is mandatory or with theconsiderations which have been set out in the judgment asbeing the considerations to be taken into account by thedisciplinary authority before imposing penalty upon adelinquent government servant. Where situation envisagedin one of the three clauses of the second proviso to Article311 (2) or of an analogous service rule arises, it is notmandatory that the major penalty of dismissal, removal orreduction in rank should be imposed upon the concernedgovernment servant. The penalty which can be imposed maybe some other major penalty or even minor penalty

depending upon the facts and circumstances of the case. Inorder to arrive at decision as to which penalty should beimposed, the disciplinary authority will have to take intoconsideration the various factors set out in Challappan case[.]It is, however, not possible to agree with the approach adoptedin Challappan case in considering Rule 14 of the RailwayServants Rules in isolation and apart from the second provisoto Article 311 (2), nor with the interpretation placed by itupon the word ‘consider’ in the last part of Rule 14. NeitherRule 14 of the Railway Servant Rules nor similar rule inother service rules can be looked at apart from the secondproviso to Article 311 (2). The authority of particular officerto act as disciplinary authority and to impose penaltyupon government servant is derived from rules made underthe proviso to Article 309 or under an Act referable to thatarticle. As pointed out earlier, these rules cannot impinge uponthe pleasure of the President or the Governor of State, asthe 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 restriction would be inviolation of the provisions of those clauses. In the same way,they cannot restrict the exclusionary impact of the secondproviso to Article 311 (2) because that would be to impose arestriction upon the exercise of pleasure under Article 310(1) which has become free of the restrictions placed upon itby clause (2) of Article 311 by reason of the operation of thesecond proviso to that clause. The only cases in which agovernment servant can be dismissed, removed or reduced inrank by way of punishment without holding an inquirycontemplated by clause (2) of Article 311 are the three casesmentioned in the second proviso to that clause…”“…It is thus obvious that the word ‘consider’ in its ordinaryand natural sense is not capable of the meaning assigned toit in Challappan case. The consideration under Rule 14 ofwhat penalty should be imposed upon delinquent railwayservant must, therefore, be ex parte and where the disciplinaryauthority comes to the conclusion that the penalty which thefacts and circumstances of the case warrant is either ofdismissal or removal of reduction in rank, no opportunity of

ABC

showing cause against such penalty proposed to be imposedupon him can be afforded to the delinquent governmentservant. Undoubtedly, the disciplinary authority must haveregard to all the facts and circumstances of the case as setout in Challappan case. As pointed out earlier, considerationsof fair play and justice requiring hearing to be given to agovernment servant with respect to the penalty proposed tobe imposed upon him do not enter into the picture when thesecond proviso to Article 311 (2) comes into play and thesame would be the position in the case of service rulereproducing the second proviso in whole or in part andwhether the language used is identical with that used in thesecond proviso or not. There are number of orders whichare of necessity passed without hearing the party who maybe affected by them. For instance, courts of law can and oftendo pass ex parte ad interim orders on the application of aplaintiff, petitioner or appellant without issuing any notice tothe other side or hearing him. Can it, therefore, be contendedthat the judge or judges, as the case may be, did not applyhis or their mind while passing such an order?

“115. The decision in Challappan case is, therefore, notcorrect with respect to the interpretation placed by it uponRule 14 of the Railway Servants Rules and particularly uponthe word ‘consider’ occurring in the last part of that rule andin interpreting Rule 14 by itself and not in conjunction withthe second proviso to Article 311 (2). Before parting withChallappan 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 783ff*. Hardly was that case reported then in the next group ofappeals in which the same question was raised, namely, thethree civil appeals mentioned earlier, an order of reference toa larger Bench was made on November 18, 1976. Thecorrectness of Challappan case was, therefore, doubted fromthe very beginning.”

“126. As pointed out earlier, the source of authority of aparticular officer to act as disciplinary authority and todispense with the inquiry is derived from the service rules

while the source of his power to dispense with the disciplinaryinquiry is derived from the second proviso to Article 311 (2).There cannot be an exercise of power unless such powerexists in law. If such power does not exist in law, the purportedexercise of it would be an exercise of non-existent powerand would be void. The exercise of power is, therefore,always referable to the source of such power and must beconsidered in conjunction with it. The Court’s attention inChallappan case was not drawn to this settled position in lawand hence the error committed by it in considering Rule 14 ofthe Railway Servants Rules by itself and without taking intoaccount the second proviso to Article 311 (2). It is also wellsettled that where source of power exists, the exercise ofsuch power is referable only to that source and not to someother source under which were that power exercised, theexercise of such power would be invalid and withoutjurisdiction. Similarly, if source of power exists by readingtogether two provisions, whether statutory or constitutional,and the order refers to only one of them, the validity of theorder should be upheld by construing it as an order passedunder both those provisions. Further, even the mention of awrong provision or the omission to mention the provisionwhich contains the source of power will not invalidate anorder where the source of such power exists. (See Dr. RamManohar Lohia v. State of Bihar and Municipal Corporationof the City of Ahmedabad v. Ben Hiraben Manilal) Theomission to mention in the impugned orders the relevant clauseof the second proviso or the relevant service rule will not,therefore, have the effect of invalidating the orders and theorders must be read as having been made under the applicableclause of the second proviso to Article 311 (2) read with therelevant 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 expedientin the interest of the security of the State and not the actualconduct of government servant which would be the subject-matter of the inquiry. This submission is correct so far as it

ABC

DEF

Agoes but what it overlooks is that in an inquiry into actsaffecting the interest of the security of the State, several mattersnot fit or proper to be made public, including the source ofinformation involving government servant in. such acts,would be disclosed and thus in cases such as these an inquiryinto acts prejudicial to the interest of the security of the StateBwould prejudice the interest of the security of the State asmuch as those acts would.”

12. In the decision in Union of India v. Balbir Singh[3], this Courtreferred to the earlier decision in A.K. Kaul v. Union of India[4], inparagraph 7 as under: -C

“7. In the case of A.K. Kaul v. Union of India [(1995) 4 SCC73 : 1995 SCC (L&S) 922 : (1995) 30 ATC 174] this Courthas examined the extent of judicial review permissible inrespect of an order of dismissal passed under second provisoclause (c) of Article 311(2) of the Constitution. This CourtDhas held that the satisfaction of the President can be examinedwithin the limits laid down in S.R. Bommai v. Union ofIndia [(1994) 3 SCC 1]. The order of the President can beexamined to ascertain whether it is vitiated either by malafides or is based on wholly extraneous and/or irrelevantEgrounds. The court, however, cannot sit in appeal over theorder, or substitute its own satisfaction for the satisfaction ofthe President. So long as there is material before the Presidentwhich is relevant for arriving at his satisfaction as to actionbeing taken under clause (c) to the second proviso to Article311(2), the court would be bound by the order so passed.FThis Court has enumerated the scope of judicial review ofthe President’s satisfaction for passing an order under clause(c) of the second proviso to Article 311(2). The Court hassaid, (1) that the order would be open to challenge on theground of mala fides or being based wholly on extraneousGand/or irrelevant grounds; (2) even if some of the material onwhich the action is taken is found to be irrelevant the courtwould still not interfere so long as there is some relevantmaterial sustaining the action; (3) the truth or correctness of

the material cannot be questioned by the court nor will it gointo the adequacy of the material and it will also not substituteits opinion for that of the President; (4) the ground of malafides takes in, inter alia, situations where the proclamation isfound to be clear case of abuse of power or what is sometimescalled fraud on power; (5) the court will not lightly presumeabuse or misuse of power and will make allowance for thefact that the President and the Council of Ministers are thebest judge of the situation and that they are also in possessionof information and material and the Constitution has trustedtheir judgment in the matter; (6) this does not mean that thePresident and the Council of Ministers are the final arbitersin the matter or that their opinion is conclusive. (cf. also UnionTerritory, 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) isassailed before court of law on the ground that thesatisfaction of the President or the Governor is not based oncircumstances which have bearing on the security of theState, the court can examine the circumstances on which thesatisfaction of the President or the Governor is based; and ifit finds that the said circumstances have no bearingwhatsoever on the security of the State, the court can holdthat the satisfaction of the President or the Governor whichis required for passing such an order has been vitiated bywholly extraneous or irrelevant considerations.”

14. In the decision in Union of India v. M.M. Sharma[5],thisCourt held that dismissal without an inquiry in the interest of nationalsecurity under clause (c) of the second proviso to Article 311 (2) of theConstitution did not require recording of reasons for dispensing with theinquiry. At the same time, it was held that there were records to indicatethat there are sufficient and cogent reasons for dispensing with the inquiryin the interest of the security of the State. In paragraph 28 thereof, itwas 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 to5 (2011) 11 SCC 293

ABC

Acommunicate the reasons for imposing the penalty of dismissal and notany other penalty.

15. In paragraph 30, it was held thus: -

“30. If in terms of the mandate of the Constitution, thecommunication of the charge and holding of an enquiry couldBbe dispensed with, in view of the interest involving security ofthe State, there is equally for the same reasons no necessityof communicating the reasons for arriving at the satisfactionas to why the extreme penalty of dismissal is imposed on thedelinquent officer. The High Court was, therefore, not justifiedCin 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 concurrentlyfound by the Central Administrative Tribunal and the High Court, thatthe said provision is service rule virtually reproducing clause (c) of theDsecond proviso to Article 311 (2) of the Constitution of India though thelanguage used is not identical. We have also noted that the appellant didnot dispute that Rule 16 (iii) is in pari materia with clause (c) of thesecond proviso to Article 311 (2). When once it is so found, there cannotbe any doubt with respect to the position, as settled in Tulsiram Pateland Ors. (supra) and reiterated in subsequent decisions, that adherenceEto principles of natural justice i.e., conducting inquiry after issuing chargesheet and providing hearing to government servant on those charges,in case of proposal to impose any of the aforesaid three major penaltieswould not arise when the power under Rule 16 (iii) of the CCA Rules isinvoked. Bearing in mind the position of law thus revealed from theFaforementioned decisions, we will consider whether judicial review iscalled for or not in respect of the challenge of the appellant against hisremoval from service without holding an inquiry in invocation of thepower under Clause (iii) of Rule 16 of the CCA Rules, with reference tothe factual backdrop of this case.

G17. Manifold contentions have been raised by Shri GopalSankaranarayanan, learned Senior Advocate appearing for the appellantto contend that both the Tribunal and the High Court had fallen in errorin upholding the order of dismissal passed without conducting an inquiryin invocation Clause (iii) of Rule 16 of the CCA Rules. It is the contentionof the learned Senior Advocate that indisputably in this case on 19.12.2003,H

the Under Secretary to the Government of India served Memorandumalong with article of charges and statement of imputation under Article11 of the CCA Rules to the appellant for the purpose of conductingdepartmental inquiry, alleging commission of two charges, namely (i)unauthorized absence from 01.09.2003 to leave the country for takingpost-doctoral research without permission and (ii) publication of atechnical paper during July, 2003 in AIAA Propulsion Conference, USAas first author with foreigner as one of the co-authors, without priorpermission or approval from the competent authority. The contention isthat the appellant participated in the preliminary hearing and thereafter,the matter was proceeded ex-parte and that the inquiry report wasthereafter served on him and copy of the same was also forwarded tothe Union Public Service Commission for its remarks, but the saidproceedings had not reached its logical end. In other words, it is submittedthat without finalizing the same and if at all necessary to issue furthercharge on additional imputation short cut was adopted abruptly, byinvoking the powers under clause (iii) of Rule 16 of the CCA Rules todismiss the appellant from service without holding inquiry. This, accordingto the appellant, is impermissible in law and, therefore, the non-interference with the order of dismissal by the Tribunal and then by theHigh Court could not be sustained. It is also the contention that there isno justification in holding that it is not expedient to conduct an inquiry interms of Rule 16 (iii) of CCA Rules after deciding to conduct an inquiryand in fact, actually conducting an inquiry. It is also the contention thatthe order of dismissal dated 11.08.2007 on the face of it did not reflectthe satisfaction of the President that in the interest of the security of theState, it is not expedient to hold an inquiry. It is the further contentionthat though the records of the cases were placed before the Tribunal, ithad not exercised its jurisdiction to conduct judicial review of thesubstantive satisfaction required to pass an order under Rule 16 (iii) ofthe CCA Rules. It is submitted that the High Court too, had failed inexamining that aspect, though the said point was argued before the HighCourt.

18. Per contra, Shri Shailesh Madiyal, learned counsel forrespondent Nos.1 to 4 would submit that the Central AdministrativeTribunal as also the High Court had correctly appreciated thecircumstances that led to the invocation of the power under Rule 16 (iii)of the CCA Rules for dismissing the appellant from service withoutconducting an inquiry. It is submitted that the contentions of the appellant

Athat having initiated disciplinary proceedings under Rule 11 of the CCARules vide Memorandum dated 19.12.2003 for the twin specificcharges,(referred hereinbefore) inexpediency to hold an inquiry couldnot have been and should not have been assigned as reason to invokethe 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 short cut move,Bare absolutely unsustainable in view of the indisputable facts andcircumstances obtained in this case. It is submitted that the proceedingsinitiated by Memorandum dated 19.12.2003 under Rule 11 of the CCARules and the proceedings which culminated in the dismissal of theappellant under Rule 16 (iii) of the CCA Rules are distinct. In theCproceedings initiated under Rule 11, inquiry was conducted and theappellant was also afforded with reasonable opportunity, adhering to theprinciples of natural justice. However, other violations of serious naturecame to light subsequently, causing serious doubt about the appellant’sintegrity, honesty, reliability, dependability and trustworthiness, which arequintessential qualities expected in all Scientists/Engineers of ISRO, whichDis strategically important organisation. Going by the counter affidavitfiled before this Court on behalf of respondent Nos.1 to 4, inter alia, thefollowing relevant facts were taken into account to invoke the powerunder Rule 16 (iii) of the CCA Rules instead of proceeding to file asupplementary charge sheet under Rule 11 of the CCA Rules, such as:-

(i)the way the Korean authorities had harboured him foralmost two years,

(ii)his continued contacts and interactions with them inspite of orders to the contrary,

F(iii)the manner in which he managed to leave the countryin spite of the Look Out Notices issued by theImmigration Authorities to the Police and InternationalAirport authorities,

(iv)his further exposure to the ISRO’S critical rocketGtechnologies would have serious complications, and

19. It is the further contention that ISRO, being strategicallyimportant organization having sensitivity, especially from the angle ofthe security of the State, its employees are not allowed to go abroad andto take up assignments/research there, without permission. Being aHresponsible scientist/engineer of VSSC/ISRO, the appellant was duty

bound to abide by the conduct Rules and when the violation is seriousand likely to affect the security of the State, it is not only befitting butalso inevitably inviting action in terms of the provision under Rule 16 (iii)of the CCA Rules. The appellant had unauthorized association withforeign institution on subject, which is strategic research anddevelopment subject in the respondent organization and based on whichthe nation’s rocketry and ambitious launch vehicle programs wereadvancing and doubtful circumstance of disclosure of vital data tounauthorized foreign agencies is created it is matter of concern for thesecurity of the State. Taking up all such contentions, it was submitted bythe learned counsel appearing for respondent Nos.1 to 4 that the invocationof the power under Rule 16 (iii) of the CCA Rules in dismissing theappellant from service was subjected to judicial review, initially by theTribunal and then by the High Court and, therefore, no case, whatsoeverwas made out by the appellant so as to compel invocation of the powerunder Article 136 of the Constitution of India to conduct further judicialreview. It is therefore, submitted that the appeal is liable to be dismissed.

20. Before delving into the matter further, it is only apposite torefer to the appellant’s own estimation about himself. According to theappellant, he is high-profile scientist with specialisation in rocketpropulsion with proven credentials at par with NASA scientist. He wouldfurther state that he is second to none in space program and is having allpotential to become the Chairman of ISRO and is the best suitablecandidate for the post of Chairman ISRO with immediate effect.

21. Thus, it is obvious that the appellant himself knew that he is ahigh-profile scientist in ISRO, which is highly sensitive and strategicresearch and development organisation under the Department of Space,Government of India. We are of the considered view that the Courtcannot be an island and feign oblivion of the pivotal role of scientist/engineer attached to ISRO and also the role of ISRO as the space agencyof India. Obviously, it is involved in science, engineering and technologyto harvest the benefits of outer space for India. Now, we will cull out therelevant indisputable and undisputed facts, obtained in this case. Theappellant is scientist/engineer in the VSSC, Thiruvananthapuram ofISRO. After applying for sabbatical leave for one year and when thecompetent authority decided not to recommend the leave in exigency ofservice, he applied for nine days’ earned leave from 21.08.2003 to29.08.2003 on personal grounds and then went to South Korea. On

Areaching South Korea, through e-mail dated 01.09.2003, the appellantintimated his Divisional Head in VSSC regarding his arrival in SouthKorea to carry out his post-doctoral research and to assist Prof. H.D.Kim, Head of School of Mechanical Engineering, Andong NationalUniversity, South Korea. Though his application dated 18.07.2003 was

not sanctioned, through another e-mail, he applied for 89 days’ leaveBfrom 01.09.2003 to 28.11.2003 and continued to stay in South Koreadespite being informed that his leave was not sanctioned and was requiredto report for duty not later than 11.09.2003. It is also to be noted thatbefore going to South Korea to join the aforesaid University, he hadpublished technical paper as first author with foreigner as one of theCco-authors in the 39[th] American Institute of Aeronautics and Astronautics(AIAA) Joint Propulsion Conference, USA, without obtaining approvalof the competent authority. Though he rejoined duty on 27.03.2004 withfull knowledge that his application for sabbatical leave was not sanctionedhe left for South Korea in March, 2004 without giving information to andobtaining permission from the organization. He re-joined duty onD18.05.2004 and then, went back to South Korea on 28.05.2004 withoutpermission from the authorities. The aforesaid factual aspects wouldreveal that without permission from the competent authority the appellantwent to South Korea, joined Andong National University, South Koreaand assisted Prof. H.D. Kim, Head of School of Mechanical EngineeringEand kept on his association with the said foreign institution involved inthe research on rocketry, which is strategic research and developmentsubject in ISRO. In the contextual situation, it is relevant to refer toAnnexures P1 and P4. Annexure-P1 letter dated 28.08.2002 from Prof.H.D. Kim to himself, produced by the appellant, would reveal the natureof the research project in the laboratory of Prof. H.D. Kim and AnnexureFP4 would reveal the repeated advice to the appellant not to have anycontact in future with any external agency, such as Andong NationalUniversity, South Korea, without permission from appropriate authoritiesin ISRO. The further indisputable facts would reveal his persistentdealings with that University ignoring such instructions. In suchGcircumstances, his continued association with foreign agency/university,ignoring the fact that he is responsible scientist in the ISRO, which is ahighly sensitive and strategic research and development organizationunder the Department of Space, Government of India, if viewedsuspiciously and thought that his further exposure to ISRO’s critical rockettechnologies would create serious complications, it cannot be said to beH

bereft of substance and not matter of concern in regard to the securityof the State. As noticed hereinbefore, taking into account the expertiseof the appellant in the particular branch and that he has been workingunder ISRO since 1992, there cannot be any doubt with respect to theexperience which he gathered in the subject from ISRO and in suchcircumstances leaving to foreign country without prior permission andcontinuing there for considerable long period despite advice andinstructions to come back and continuing to associate with such foreignorganisation/university researching on rocketry, the respondentorganisation cannot be said to have committed flaw or fault inentertaining suspicion on his honesty, integrity, reliability, dependabilityand trustworthiness and above all to treat such acts as matter of concernin relation to the security of the State.22. Rule 16 (iii) of the CCA Rules requires no analytical approachto understand that it contains two limbs. Firstly, to attract it requires thesatisfaction of the President that “in the interest of the security of theState” it is not expedient to hold any inquiry in the manner provided inthe CCA Rules. The second limb enables the disciplinary authority toconsider, having regard to the circumstances of the case to consider andmake such orders thereon, as it deems fit. In the case on hand ininvocation of the provision of Rule 16 (iii) of the CCA Rules, order dated11.08.2007 was passed dismissing the appellant from service with effectfrom 01.09.2003 without conducting inquiry upon the satisfaction of thePresident that it is not expedient to hold any inquiry in the manner providedin the CCA Rules “in the interest of the security of the State”. Therefore,the first question is whether the dispensation with the inquiry based onsatisfaction that “in the interest of the security of the State” it is notexpedient to hold any inquiry, invites interference. Subject to its answerthe question whether the order of dismissal invites interference, has tobe looked into.

23. Paragraph 126 of the decision of the Constitution Bench inTulsiram Patel’s case (supra) would reveal that the Constitution Bench,while considering provision pari materia to Rule 16 (iii) of the CCARules viz., Rule 14 of the Railway Servants Rules, found error inasmuchas the issue was considered by confining to Rule 14 itself, without takinginto account the second proviso of Article 311 (2) of the Constitution ofIndia. After observing that exercise of power is always referrable to the

Asource of such power and must be considered in conjunction with it andheld that the source of power to dispense with an inquiry, in suchcircumstances, is derived from the second proviso to Article 311 (2).Bearing in mind the said observation and holding we have carefullyconsidered the order passed by the Administrative Tribunal which wassubjected to further judicial review by the High Court. We have noBhesitation to hold that bare perusal of the order of the Tribunal wouldreveal that the tribunal had considered the question not confining itsconsideration only to Rule 16 (iii) of the CCA Rules but also taking intoconsideration the source of power derived from the second proviso toArticle 311 (ii) of the Constitution of India. Obviously, the question whetherCit is expedient to hold an inquiry as provided under the CCA Rules has tobe considered and the satisfaction as to its expediency or inexpediencyhas to be reached based on “interest of the security of the State”. Themeaning and scope of the expression ‘security of the State’ has beenconsidered by the Constitution Bench in Tulsiram Patel’s case (supra).It was observed that the expressions “Law and Order”, “Public Order”Dand “security of the State” have been used in different Acts. Situationswhich affect “Public Order” are graver than those which affect “lawand order” and situations which affect “security of the State” are graverthan those which affect “Public Order”. It was therefore, observed andheld that of all these situations those which affect “security of the State”Eare the gravest. The expression “security of the State” does not meansecurity of the entire country or whole State and it includes security ofthe part of the State. Furthermore, it was held that there are variousways in which “security of the State” could be affected such as, byState secrets or information relating to defence production or similarmatters being passed on to other countries, whether inimical or not toFour country, or by secret links with terrorists. It was also held that itwould be difficult to enumerate the various ways in which the “securityof the State”could be affected and the way in which “security of theState”would be affected might be either open or clandestine. In paragraph142 of Tulsiram Patel’s case (supra) it was further held:G“142. The question under clause (c), however, is not whetherthe security of the State has been affected or not, for theexpression used in clause (c) is “in the interest of the securityof the State.” The interest of the security of the State may beaffected by actual acts or even the likelihood of such acts

taking place. Further, what is required under clause (c) is notthe satisfaction of the President or the Governor,as the casemay be, that the interest of the security of the State is or willbe affected but his satisfaction that in the interest of thesecurity of the State, it is not expedient to hold an inquiry ascontemplated by Article 311 (2).The satisfaction of thePresident or the Governor must, therefore, be with respect tothe expediency or inexpediency of holding an inquiry in theinterest of the security of the State.

(emphasis added)

24. We have already taken note of the indisputable and undisputedfacts obtained in this case which are relevant for the purpose ofconsideration of the question with respect to the expediency orinexpediency of holding an inquiry “in the interest of the security of theState.” In viewof the situations deducible from the materials on record,we find absolutely no reason to hold that the satisfaction that it is notexpedient to hold an inquiry “in the interest of security of the State”wasarrived at without any material.When once it is obvious thatcircumstances based on materials capable of arriving at satisfactionthat it is not expedient to hold an inquiry “in the interest of the security ofthe State” are available the decision in holding that it is inexpedient “inthe interest of the security of the State” to hold an inquiry warrants nofurther scrutiny, rather, it is not fit to be subjected to further judicialreview. In other words, the Court cannot, in such circumstances, judgeon the expediency or inexpediency to dispense with the inquiry as it wasarrived at based on the subjective satisfaction of the President based onmaterials. In the above circumstances, we do not find any reason tointerfere with the disinclination on the part of the Tribunal and then theHigh Court, on the aforesaid issue.

25. The aforesaid conclusion would take us to the next questionas to whether the non-interference with the order of dismissal warrantsany interference. In this context, it is required to be noted that theretrospectivity given to the order of dismissal from 01.09.2003 wasinterfered with, by the Tribunal. It has become final and it was giveneffect to by the respondent organization by modifying the date of itseffect from the date of the order of dismissal. While considering theabove question, it is relevant to refer again to the decision of the

AConstitution Bench in Tulsiram Patel’s case (supra).Though it washeld that such an order would be open to challenge on the ground ofmala fides or being based wholly on extraneous grounds, it is relevant tonote that in the case on hand, the order of dismissal is not put to challengeon any of such grounds. Going by the decision in Tulsiram Patel’s case

(supra),when once such power is invoked to dispense with inquiry theBconsideration as to what penalty should be imposed upon delinquentemployee must be ex-parte. In other words, on that question no opportunityof being heard is to be given. Even-after holding so, in paragraph 114 ofTulsiram Patel’s case (supra), it was held that in order to arrive at adecision as to which penalty should be imposed, the disciplinary authorityChas to take into consideration the various factors set out in T.R.Chellappan’s case (supra). Then, the question is what are such factorsto be taken into account in that regard in terms of T.R. Chellappan’scase (supra). scanning of the decision in T.R. Chellappan’s case(supra), would go to show that it was held therein that the disciplinaryauthority while deciding the question as to what penalty should be imposedDon the delinquent employee in the facts and circumstances of particularcase would have to take into account the entire conduct of the delinquentemployee, gravity of the misconduct committed by him, the impactwhich his misconduct is likely to have on the administration and otherextenuating circumstances or redeeming features if any present in theEcase and so on and so forth. Such aspects were looked into by theTribunal. We have also referred hereinbefore the acts and omissions onthe part of the appellant having regard to his role as scientist/engineerin ISRO and the role of ISRO as the space agency of India. It is not themere unauthorized absence of the appellant that actually weighed withthe authority and evidently, the organization is perfectly justified in castingFsuspicion on the honesty, integrity, reliability, dependability andtrustworthiness in view of the factual situation obtained in this case, asexplained in the counter affidavit, besides entertaining the stand that hisunauthorized association with foreign institution, especially in the area ofpropulsion, which is strategic research and development subject in theGorganization and based on which the nation’s rocketry and ambitiouslaunch vehicle programs are/were advancing, was matter of concernfor the security of the State. When such acts/conduct occur/occurs froma scientist in sensitive and strategic organization, the decision to imposedismissal from service cannot be said to be illegal or absolutelyunwarranted. In other words, we do not find any reason to hold that theH

judgment of the High Court, dismissing the challenge against the orderof the Tribunal warrants any kind of interference in exercise of the powerunder Article 136 of the Constitution of India. The appeal, therefore,must fail and accordingly it is dismissed, however, without any cost.

Nidhi Jain(Assisted by : Rakhi, LCRA)

Appeal dismissed.