Dr. V. R. Sanal Kumar vs Union of India & Ors.

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 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 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 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 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.