Inquiry Proceedings Against Civil Servant Can Be Done Away With In National Security Interest : Supreme Court

Recently, the Supreme Court reiterated that inquiry proceedings of persons employed in civil capacities under the Union Government of the State Government can be done away with if the President or the Governor is satisfied that in the interest of security of the State it is not expedient to hold such an inquiry [clause (c) of second proviso to Article 311(2) of the Constitution of India].

A Bench comprising Justice MR Shah and Justice CT Ravikumar held that 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(Dr. VR Sanal Kumar v. Union of India And Ors).

It noted that the same is not fit to be subjected to further judicial review.

“...the Court cannot, in such circumstances, judge on the expedience or inexpediency to dispense with the inquiry as it was arrived at based on the subjective satisfaction of the President based on materials.”

Factual Background

In 1992, Dr. VR Sanal Kumar (appellant) was initially appointed as a Scientist/Engineer in Group A in Vikram Sarabhai Space Centre of the Indian Space Research Organisation. He was promoted in 1999. In 2002, he received an invitation from Andong National University, South Korea to join as a doctoral trainee to a professor. Thereafter Kumar applied for a sabbatical leave for one year, which was refused on the ground of exigency of service and in public interest. He applied for 9 days earned leave and left for South Korea. Eventually, he sent a leave application for 89 days. He was shortly informed that his leave was not sanctioned and he was required to report for duty. Meanwhile, the competent authority came to know that Kumar has published a paper as first author with a foreigner as one of the co-authors in American Institute of Aeronautics and Astronautics Joint Propulsion Conference, held during July, 2003, without the permission of the concerned authority. In view of the same, disciplinary action was initiated against him and he was eventually chargesheeted for unauthorised absence and publication of paper without informing the authority.

Kumar rejoined duty, but soon left for South Korea without informing ISRO. He attended the preliminary inquiry, but did not participate in further proceedings. Ex-parte inquiry was conducted and a report holding him guilty of the charges was sent to Kumar. Thereafter he approached the Central Administrative Tribunal, but his applications were dismissed. He rejoined duty, but subsequently went back to South Korea with ISRO’s permission. Consequently, by an order dated 13.07.2003, he was suspended from service pending disciplinary action. On 11.08.2007, he was dismissed from service with effect from 01.09.2003. He was also asked to return the subsistence allowance drawn after 01.09.2003. Kumar approached the Central Administrative Tribunal (CAT) challenging the order dated 11.08.2007. The CAT refused to quash the dismissal order, but annulled the retrospective application of the dismissal order. Both the parties filed appeals before the Kerala High Court and they were dismissed.

Analysis by the Supreme Court

The Court noted that Kumar was dismissed from service without any inquiry in the manner provided in the Department of Space Employees’ (Classification, Control and Appeal) Rules, 1976 (CCA Rules). It observed that the concerned provision of the CCA Rules [Rule 16(ii)] is pari materia to clause (c) of second proviso to Article 311(2) of the Constitution of India [dismissal, removal or reduction in rank of persons employed in civil capacities]. Ordinarily, it is required that a person be dismissed after an inquiry in which they are informed of the charges and are given an opportunity of being heard. However, there are exceptions and the same is enumerated in second proviso to Article 311(2).

One of the exemptions [clause (c) of second proviso to Article 311(2)] is that where the President or the Governor is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.

The Court noted that the issue of non-requirement of adherence to principles of natural justice under Article 311(2) has been authoritatively settled by the Constitution Bench of the Apex Court in Union of India And Anr. v. Tulsiram Patel And Ors. The Constitution Bench had held that when the second proviso to Article 311(2) comes into play there is no requirement to adhere to principles of natural justice. It held that the President/Governor is to be satisfied that in the interest of the security of the State it is not expedient to hold an inquiry as contemplated under Article 311(2). It had further held that clause (c) the second proviso to Article 311(2) was based on public policy, in public interest and for the public good. The Constitution Bench judgment had also reflected upon the scope of the expression 'security of the State’. The Division Bench summarised the scope of the expression as under -

“...it was held that there are various ways in which “security of the State” could be affected such as, by State secrets or information relating to defence production or similar matters being passed on to other countries, whether inimical or not to our country, or by secret links with terrorists. It was also held that it would be difficult to enumerate the various ways in which the “security of the State” could be affected and the way in which “security of the State” would be affected might be either open or clandestine.”

The Division Bench noted that if circumstances based on material capable of arriving at a satisfaction that it is not expedient to hold an inquiry in the interest of security of the State are available then the decision of the President that in the interest of the security of the State it is not expedient to hold an inquiry is not to be subjected to judicial review.

The Supreme Court upheld the decision of the Tribunal, affirmed by the High Court.

Case details

Dr. VR Sanal Kumar v. Union of India And Ors.| 2023 LiveLaw SC 432 |Civil Appeal No. 6301 of 2013| 12th May, 2023| Justice MR Shah and Justice CT Ravikumar

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