Full Judgment Text
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PETITIONER:
A.K. KAUL & ANR
Vs.
RESPONDENT:
UNION OF INDIA & ANR
DATE OF JUDGMENT19/04/1995
BENCH:
AGRAWAL, S.C. (J)
BENCH:
AGRAWAL, S.C. (J)
FAIZAN UDDIN (J)
CITATION:
1995 AIR 1403 1995 SCC (4) 73
JT 1995 (4) 1 1995 SCALE (2)755
ACT:
HEADNOTE:
JUDGMENT:
S.C. AGRAWAL, J.:
1. Leave granted.
2. The appellants were employed as Deputy Central
Intelligence Officers in the Intelligence Bureau in the
Ministry of Home Affairs of the Government of India. On
July 23, 1979, the employees of the Intelligence Bureau
formed an Association called "the Intelligence Bureau
employees Association" (IBEA) for the purpose of ventilating
their grievances. Appellants, A.K.Kaul and Verghese Joseph,
were elected as the General Secretaries of IBEA and
appellant, B.B. Raval, was elected as the President. On May
3, 1980, the Joint Director of the Intelligence Bureau
issued, a Circular Memorandum declaring that the formation
of the IBEA was in violation of the Civil Services (Conduct)
Rules and that those who take part in the activities of the
IBEA will attract disciplinary action. Writ petitions
(Civil) Nos. 1117-1119 were filed in this Court challenging
the said circular. This Court, on July 21, 1980, issued an
order for issue of rule nisi on the said writ petitions and
also passed an interim order directing that during the
pendency of the
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writ petitions in this Court no disciplinary action shall be
taken against any member of the IBEA for reasons mentioned
in the circular. On December 26, 1980, orders were passed
dismissing the appellants from service. One such order
regarding the dismissal of appellant, A.K. Kaul, is in the
following terms :
"Shri A.K. Kaul,
Deputy Central Intelligence Officer,
Intelligence Bureau,
New Delhi.
Whereas the President is satisfied under
sub-clause (c) of the proviso to clause(2) of
Article 311 of the Constitution that in the
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interest of the security of the State it is
not expedient to hold an inquiry in the case
of Shri A. K. Kaul.
And whereas the President is satisfied that on
the basis of the information available, the
activities of Shri A.K. Kaul are such as to
warrant his dismissal from service.
Accordingly, the President hereby dismisses
Shri A.K. Kaul from service with immediate
effect.
(By order and in the name of President
Sd/-
(R. Mahadevan)
Under Secretary to the Govt. of
India Ministry of Home Affairs."
3. The orders for dismissal of appellants, Verghese Joseph
and B.B. Raval are in the same terms. The appellants filed
separate writ petitions (Nos. 205-207/81 1) in this Court
under Article 32 of the Constitution to challenge the said
orders of dismissal. After the constitution of the Central
Administrative Tribunal under the Administrative Tribunals
Act, 1985, (hereinafter referred to as ’the Tribunal’) the
said writ petitions were transferred to the Tribunal for
adjudication and they were registered as T.A. Nos. 1,2 and 3
of 1992.
4. Before the Tribunal the case put for-ward by the
appellants was that they have been picked and chosen for
punitive action for dismissal from service for the reason
that they were important members of the IBEA, being office
bearers as General Secretaries and the President, and that
the real motive to pass the orders of dismissal was to
penalise them for the active part they had taken in
ventilating the grievances of the employees through the
IBEA. The appellants also pleaded that they had an
excellent record of service and that they had not conducted
themselves in such manner as to warrant their dismissal from
service. It was submitted that they were recipients of
commendation certificates, appreciation letters and cash
awards from time to time. It was also stated in the
applications that they had not acted contrary to the
interest of national security at any time. The said
applications were contested by the respondents who pleaded
that the orders of dismissal had been passed by the
President on being satisfied on the basis of the material
available that the activities of the appellants were such as
to warrant their dismissal from service by dispensing with
the requirements of Article 311(2) of the Constitution in
the interest of security of the State. It was also pleaded
on behalf of the respondents that the details of the
material on the basis of which the satisfaction had been
reached cannot be disclosed without detriment to public
interest. It was denied that the authorities of the
Intelligence Bureau have a hostile attitude towards IBEA and
it was stated that punitive action was taken on merits of
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each case and not because of the participation of the
appellants in the activities of the IBEA. During the
pendency of the applications before the. Tribunal the ap-
pellants moved Misc. Petitions Nos. 1897/ 92 in T.A. Nos.
1 and 2/92 and Miscellaneous Petition No. 732/92 in T.A.-
No. 3/92 whereby they prayed for directions to the
respondents to produce the records specified in the said
applications for inspection of the Tribunal and/or by the
appellants and their counsel. The said applications were
opposed by the respondents who claimed privilege invoking
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Article 74(2) of the Constitution and Sections 123 and 124
of the Evidence Act and for that purpose affidavit of Mr.
Madhav Godbole, Secretary to the Government of India, Min-
istry of Home Affairs, New Delhi (the Head of the
Department) was filed before the Tribunal. Without
prejudice to the said claim of privilege, the respondents
had, however, stated that they had no objection whatsoever
to the said documents relating to the dismissal of the
appellants and those portions of documents that relate to
the said dismissal orders being produced for perusal of the
Tribunal in order to satisfy it that the claim of privilege
against disclosure of the said official records is bona fide
and genuine.
5. By judgment dated December 18, 1993 the Tribunal, after
perusing the records that were placed for perusal of the
Tribunal, upheld the claim of privilege and dismissed ,the
applications filed by the appellants for inspection and
production of the documents. On the basis of the said
records the Tribunal has further found that the material
considered by the President relate to the activities of the
appellants which would prejudicially affect the security of
the State and that the materials relied upon or the
satisfaction of the President have nothing to do with the
appellants’ activities in relation to the IBEA. The
Tribunal has held that there is no substance in the case of
the appellants that the orders of the dismissal were not
bona fide and they have been passed to victimise the
appellants for promoting and participating in the activities
of the IBEA. The Tribunal was of the view that the
satisfaction had been arrived at after application of mind
to the relevant materials without taking into consideration
irrelevant factors and that the impugned orders of dismissal
from service dated December 26, 1980 arc not liable for
interference. The Tribunal, therefore, dismissed the
applications of the appellants. Hence these appeals.
6.On behalf of the appellants it has been urged that the
exercise of power under clause (c) of the second proviso to
Article 3 11(2) of the Constitution is subject to judicial
review and that an order passed under the said provisions is
open to challenge before the courts on the ground that the
satisfaction of the President or the Governor is vitiated by
malafides or is based on considerations which have no
relevance to the interest of the security of the State. In
this connection, Shri Sorabjee has submitted that in a case
where the employee assails the action taken against him
under Article 311(2)(c) it is obligatory on the part of the
concerned Government to place before the court the relevant
material on the basis of which the action was taken and such
material can only be withheld from the court in cases where
the claim of privilege is found to be justified under the
provisions of Sections 123 and 124 of the Evidence Act.
Shri Sorabjee has urged that the said claim of privilege
does not extend to the disclosure of the nature of
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the activities on the basis of which the alleged
satisfaction has been arrived at and the privilege can only
relate to the material which has been relied upon in support
of the said activities.
7. The learned Additional Solicitor General, appearing for
the respondents, has, however, submitted that an order under
clause (c) of second proviso to Article 311(2) of the
Constitution is to be passed by the President or the
Governor on the basis of his subjective satisfaction. The
material which forms the basis for arriving at the said
satisfaction is not required to be disclosed both in view of
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Article 74(2) as well as under Sections 123 and 124 of the
Evidence Act. The learned Additional Solicitor General has,
in this context, pointed out that while under clause (b) of
the second proviso to Article 311(2) the competent authority
is required to record in writing the reason for its satis-
faction that it is not reasonably practicable to hold an
inquiry, there is no such requirement for recording the
reason in clause (c) and, therefore, there is no requirement
to disclose the reasons for arriving at the satisfaction for
taking action under clause (c) of second proviso to Article
311(2).
8. Article 311(2), as amended by the Constitution
(Fifteenth Amendment) Act, 1963, provides as follows :
"(2) No such persons aforesaid shall be
dismissed or removed or reduced in rank except
after an inquiry in which he has been informed
of the charges against him and given a
reasonable opportunity of being heard in
respect of those charges :
Provided that where it is proposed after such
inquiry to impose upon him any such penalty,
such penalty may be imposed on the basis of
the evidence adduced during such inquiry and
it shall not be necessary to give such person
any opportunity of making representation on
the penalty proposed
Provided further that this clause shall not
apply -
(a) where a person is dismissed or removed
or reduced in rank on the ground of conduct
which has led to his conviction on a criminal
charge; or
(b) when the authority empowered to dismiss
or remove a person or to reduce him in rank is
satisfied that for some reason, to be recorded
by that authority in writing it is not practi-
cable to hold such inquiry; or
(c) where the President or Governor, as the
case may be, is satisfied that in the interest
of the security of the State it is not
expedient to hold such inquiry. "
9. The provision of the second proviso came up for
consideration before the Constitution Bench of this Court in
Union of India & Anr. v. Tulsiram Patel & Ors., 1985 Supp.
(2) SCR 13 1, Madon, J., speaking for the majority, has
observed that clause (2) of Article 311 gives a constitu-
tional mandate to the principles of natural justice and audi
alteram pattern rule by providing that a person employed in
a civil capacity under the Union or a State shall not be
dismissed or removed from service or reduced in rank until
after an inquiry in which he has been informed of the
charges against him and has been given a reasonable
opportunity of being heard in respect of those charges and
that this safeguard provided for a government, servant by
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clause (2) of Article 311(2) is, however, taken away when
the second proviso to that clause becomes applicable. (Page
202). The Court has also pointed out that the paramount
thing to bear in mind is that the second proviso will apply
only where the conduct of a government servant is such as he
deserves the punishment of dismissal, removal or reduction
in rank and that before denying a government servant his
constitutional right to an inquiry, the first consideration
would be whether the conduct of the concerned government
servant is such as justifies the penalty of dismissal,
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removal or reduction in rank and once that conclusion is
reached and the condition specified in the relevant clause
of the second proviso is satisfied, that proviso becomes
applicable and the government servant is not entitled to an
inquiry. (Pages 204-205). While dealing with clause (c) of
the second proviso to Article 311(2) it has been stated :
"The question under clause (c), however, is
not whether the security of the State has been
affected or not, for the expression used in
clause (c) is "in the interest of the security
of the State". The interest of the security
of the state may be affected by actual acts or
even the likelihood of such acts taking place.
Further, what is required under clause (c) is
not the satisfaction of the President or the
Governor, as the case may be, that the
interest of the security of the State is or
will be affected but his satisfaction that in
the interest of the security of the State, it
is not expedient to hold an inquiry as
contemplated by Article 311(2). The sat-
isfaction of the President or Governor must,
therefore, be with respect to the expediency
or inexpediency of holding an inquiry in the
interest of the security of the State. " (p.
277)
"The satisfaction so reached by the President
or the Governor must necessarily be a
subjective satisfaction. Expediency involves
matters of policy. Satisfaction may be
arrived at as a result of secret information
received by the Government about the brewing
danger to the interest or the security of the
State and like matters. There may be other
factors which may be required to be
considered, weighed and balanced in order to
reach the requisite satisfaction whether
holding an inquiry would be expedient or not.
If the requisite satisfaction has been reached
as a result of secret information received by
the Government, making, known such information
may very often result in disclosure of the
source of such information. Once known, the
particular source from which the information
was received would no more be available to the
Government. The reasons for the satisfaction
reached by the President or the Governor under
clause (c) cannot, therefore, be required to
be recorded in the order of dismissal, removal
or reduction in rank nor can they be made
public." (p. 278)
10.The learned Judge did not consider it necessary to deal
with the contention that the power of judicial review is not
excluded where the satisfaction of the President or the
Governor has been reached mala fide or is based on wholly
extraneous or irrelevant grounds and that in such a case, in
law there would be no satisfaction of the President or the
Governor at all for the reason that in the matters under
consideration before this court all the materials, including
the advice tendered by the Council of Ministers, had been
produced and they clearly showed that the satisfaction of
the Governor was neither reached malafide nor was it based
on any extraneous or irrelevant ground. (Page 279). In the
light of the provisions contained in Article 74(2) and
Article 163(3) it was submitted before
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the Court that leaving aside the advice given by the
Ministers to the President or the Governor, the Government
is bound to disclose at least the materials upon which the
advice of Council of Ministers was based so that the court
can examine whether the satisfaction of the President or the
Governor, as the case may be, was arrived at mala fide or is
based on wholly extraneous or irrelevant grounds so that
such satisfaction would in law amount to no satisfaction at
all and that if the Government does not voluntarily disclose
such materials it can be compelled by the Court to do so.
Dealing with the said submission it was observed :
"Whether this should be done or not would
depend upon whether the documents in question
fall within the class of privileged documents
and whether in respect of them privilege has
been properly claimed or not. It is
unnecessary to examine this question any
further because in the cases under clause (c)
before us though at first privilege was
claimed, at the hearing privilege was waived
and the materials as also the advice given by
the Ministers to the Governor of Madhya
Pradesh who has passed the impugned orders in
those cases were disclosed." (p. 280)
11.It would thus appear that in Tulsiram Patel (supra)
though the question whether the satisfaction of the
President or the Governor under Article 311(2) is amenable
to judicial review and the Government can be required to
disclose the materials upon which the advice of the Council
of Ministers was based so as to enable the court to exercise
the power of judicial review has been left open, the Court,
after considering the said material, has recorded the find-
ing that the satisfaction of the Governor was neither
recorded malafide nor was it based on any extraneous or
irrelevant ground.
12.It is, therefore, necessary to deal with this question in
the instant case., We may, in this context, point out that a
distinction has to be made between judicial review and
justiciability of a particular action. In a written
constitution the powers of the various organs of the
State,are limited by the provisions of the Constitution.
The extent of those limitations on the powers has to be
determined on an interpretation of the relevant provisions
of the Constitution. Since the task of interpreting the
provisions of the Constitution is entrusted to the
Judiciary, it is vested with the power to test the validity
of an action of every authority functioning under the
Constitution on the touch stone of the constitution in order
to ensure that the authority exercising the power conferred
by the constitution does not transgress the limitations
placed by the Constitutions on exercise of that power. This
power of judicial review is, therefore, implicit in a
written constitution and unless expressly excluded by a
provision of the Constitution, the power of judicial review
is available in respect of exercise of powers under any of
the provisions of the Constitution. Justiciability relates
to a particular field falling within the purview of the
power of judicial review. On account of want of judicially
manageable standards, there may be matters which are not
susceptible to the judicial process. In other words, during
the course of exercise of the power of judicial review it
may be found that there are certain aspects of the exercise
of that power which are not susceptible to judicial process
on account of want of judicially manageable standards and
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are, therefore, not justiciable.
13. In the Slate of Rajasthan & Ors. v.
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Union of India Etc. Etc., (1978) 1 SCR 1, one of the
questions failing for consideration was whether satisfaction
of the President in the matter of exercise of the power to
make a Proclamation conferred under Article 356(1) of the
Constitution is amenable to judicial review. At the
relevant time when the impugned Proclamations were made
there was an express provision in clause (5) of Article 356
which prescribed that "the satisfaction of the President
mentioned in clause (1) shall be final and conclusive and
shall not be questioned in any Court on any ground." In
spite of such an express provision P.N. Bhagwati J. (as the
learned Chief Justice then was) speaking for himself and
A.C. Gupta J., has held that "if the satisfaction is mala
fides or is based on wholly extraneous or irrelevant
grounds, the Court would have the jurisdiction to examine
it, because in that case there would be no satisfaction of
the President in regard to the matter which he is required
to be satisfied." (p.82). Other learned Judges, with some
variance, have adopted a similar approach. Beg CJ. has held
that if it is revealed "that a constitutionally or legally
prohibited or extraneous or collateral purpose is sought to
be achieved by a proclamation under Article 356 of the
Constitution, this Court will not shirk its duty to act in
the manner in which the law may then oblige it to act."
(p.46). Chandrachud J. (as the learned Chief Justice then
was) has observed that if reasons given are wholly extrane-
ous to the formation of the satisfaction, the Proclamation
would be open to the attack that it is vitiated by legal
mala fides." (p.60). Goswami J. has held that the Court
"would not refuse to consider when there may be sufficient
materials to establish that the Proclamation under Article
356(1) is tainted with mala fides."(p.92).Untwalia J. has
said that the Court is not powerless to interfere with an
order that is ultra vires, wholly illegal or passed mala
fide. (p. 95). Fazal Ali J. has held that "on the reasons
given by the President in his order if the Courts find that
they are absolutely extraneous and irrelevant and based on
personal and illegal considerations the Courts are not
powerless to strike down the order on the ground of mala
fide if proved." (p. 120).
14. Clause (5) of Article 356 was deleted by the
Constitution (Forty Fourth Amendment) Act, 1978. In S.R.
Bommai (supra) Sawant J. after noticing the observations in
A.K. Roy v. Union of India 1982 (2) SCR 272, has observed
that after deletion of clause (5) the judicial review of the
Proclamation issued under Article 356 has become wider than
indicated in the State of Rajasthan (supra). Similarly,
Jeevan Reddy J. has said : "Surely the deletion of clause
(5) has not restricted the scope of judicial review.
Indeed, it has removed the cloud cast on the said power.
The Court should, if anything, be more inclined to examine
the constitutionality of the Proclamation after such
deletion." (p. 255)
15. In S.R. Bommai (supra) differing views were expressed
by the learned Judges on the scope and extent of the
judicial review and justiciability of the action taken by
the President in exercise of power conferred under Article
356(1). Sawant J., speaking for himself and Kuldip Singh
J., had held that material on the basis of which the advice
is given by the Council of Ministers and the President forms
his satisfaction has to be scrutinised by Court within the
acknowledged parameters of judicial review, viz.,
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illegality, irrationality and mala fides. (p. 112).
Referring to the ex-
13
pression "if the President .... is satisfied" in Article
356(1) the learned Judge has said :
"Hence, it is not the personal whim wish, view
or opinion or the ipse dixit of the President
dehors the material but a legitimate inference
drawn from the material placed before him
which is relevant for the purpose. In other
words, the President has to be convinced of or
has to have sufficient proof of information
with regard to or has to be free from doubt or
uncertainly about the state of things indi-
cating that the situation in question has
arisen. Although, therefore, the sufficiency
or otherwise of the material cannot be
questioned the legitimacy of inference drawn
from such material is certainly open to
judicial review. " (p. 103)
16. According to the learned Judge, "Many of the parameters
of judicial review developed in the field of administrative
law are not antithetical to the field of constitutional law
and they can equally apply to the domain covered by the
constitutional law." (p.94). The learned Judge has applied
the tests laid down by this Court in Barium Chemicals Ltd.
v. Company Law Board. 1966 Supp. SCR. 311.
17. Jeevan Reddy J., speaking for himself and one of us
(Agrawal J.), did not, however, give such a wide scope to
the power of judicial review in respect of a proclamation
made under Article 356 (1). After pointing out that Barium
Chemicals (supra) is a decision concerning subjective
satisfaction of an authority created by a statute, the
learned Judge has held that the principles enshrined in that
case "cannot ipso facto be extended to the exercise of
constitutional power under Article 35 of the Constitution
and that "having regard to the fact that this is a high
Constitutional functionary in the Nation, it may not be
appropriate to adopt the tests applicable in the case of
action taken by statutory or administrative authorities nor,
at any rate, in their entirety." (p.267). He preferred to
adopt the formulation that "if a Proclamation is found to be
mala fide or is found to be based wholly on extraneous or
irrelevant grounds, it is liable to be struck down."
(p.268). The teamed Judge has observed: "The truth or
correctness of the material cannot be questioned by the
court nor will it go into the adequacy of the material. It
will also not substitute its opinion for that of the
President. Even if some of the material on which the action
is taken is found to be irrelevant, the court would still
not interfere so long as there is some relevant material
sustaining the action. The ground of mala fides takes in
inter alia situations-where the Proclamation is found to be
a clear case of abuse of power, or what is sometimes called
fraud on power cases where this power is invoked for
achieving oblique ends." (p. 268). The learned Judge has
further stated: "The court will not lightly presume abuse or
misuse. The court would, as it should, tread wearily,
making allowance for the fact that the President and the
Union Council of Ministers are the best judges of the
situation, that they alone are in possession of information
and material sensitive in nature sometimes and that the
Constitution has trusted their judgment in the matter. But
all this does not mean that the President and Union Council
of Ministers are the final arbiters in the matter or that
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their opinion is conclusive." (pp.268 269). Pandian J. has
expressed his agreement with the judgment of Jeevan Reddy J.
18. Ahmadi J. (as the learned Chief Justice then was),
while expressing his agree-
14
ment with the view expressed in the State of Rajasthan
(supra) has held that a proclamation issued under Article
356(1) of the Constitution can be challenged on the limited
ground that the action is mala fide or ultra vires Article
356 itself and has held that the test laid down in Barium
Chemicals (supra) and subsequent decisions for adjudging the
validity of administrative action can have no application
for testing the satisfaction of the President under Article
356. (p.82)
19. Verma J., speaking for himself and Yogeshwar Dayal J.,
has taken the same view. The learned Judge has held though
the Proclamation under Article 356 is subject to judicial
review the area of justiciability is narrow. While holding
that the test for adjudging the validity of an ad-
ministrative action and the grounds of its invalidity
indicated in Barium Chemicals "(Supra) and other cases of
that category have no application for testing and invali-
dating a Proclamation issued under Article 356, the learned
Judge has said that the grounds of invalidity are those
mentioned in State of Rajasthan (supra). (p. 85)
20. K. Ramaswamy J. has held: "The decision can be tested
on the ground of legal mala fides, or high irrationality in
the exercise of the discretion to issue Presidential
Proclamation and the traditions parameters of judicial
review, therefore cannot be extended to the area of
exceptional and extraordinary power exercise under Article
356". The learned Judge has also held that the "doctrine of
proportionality cannot be extended to the power exercised
under Article 356." (p. 209)
21. It would thus appear that in S.R Bommai (supra) though
all the learned Judges have held that the exercise of power
under Article 356 (1) is subject to judicial review but in
the matter of justiciability of the satisfaction of the
President, the view of the majority (Pandian, Ahmadi, Verma,
Agrawal, Yogeshwar Dayal and Jeevan Reddy JJ.) is that the
principles evolved in Barium Chemicals (supra) for adjudging
the validity of an action based on the subjective
satisfaction of the authority created by statute do not, in
their entirety, apply to the exercise of a constitutional
power under Article 356. On the basis of the judgment of
Jeevan Reddy J., which takes a narrower view than that taken
by Sawant J., it can be said that the view of the majority
(Pandian, Kuldip Singh, Sawant, Agrawal and Jeevan Reddy
JJ.) is that :
(i) the satisfaction of the President while
making Proclamation under Article 356(1) is
justiciable;
(ii) it would be open to challenge on the
ground of mala fides or being based wholly on
extraneous and/or irrelevant grounds;
(iii)even if some of the materials on which
the action is taken is found to be irrelevant,
the court would still not interfere so long as
there is some relevant material sustaining the
action;
(iv) the truth or correctness of the material
cannot be questioned by the Court nor will it
go into the adequacy of the material and it
will also not substitute its opinion for that
of the President;
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(v) the ground of mala fide takes in inter
alia situations where the proclamation is
found to be a clear case of abuse of power or
what is sometimes called fraud on power;
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(vi) the court will not lightly presume abuse
or misuse of power and will make allowance for
the fact that the President and the Union
Council of Ministers are the best judge of the
situation and that they are also in possession
of information and material and that the
Constitution has trusted their judgment in the
matter; and
(vii) this does not mean that the President
and the Council of Ministers arc the final
arbiters in the matter or that their opinion
is conclusive.
22.As to the bar to an inquiry by the court imposed under
Article 74(2) of the Constitution, all the Judges in S.R.
Bommai (supra) have held that the said bar under Article
74(2) is confined to the advice tendered by the Council of
Ministers to the President and it does not extend to the
material on the basis of which the advice was tendered and,
therefore, Articles 74(2) does not bar the production of the
material on which the advice of the Council of Ministers is
based. This is, however, subject to the right to claim
privilege against the production of the said material under
Section 123 of the Evidence Act.
23.Is there anything in the provisions of clause (c) of the
second proviso to Article 311 (2) which compels a departure
fro the principles laid down in S.R. Bommai (supra)
governing justiciability of the satisfaction of the
President in the matter of exercise of power under Article
356? We have not been able to discern any reason for making
a departure. As compared the clause (c) of the second
proviso to Article 311 (2), which deals with an individual
employee, the power conferred by Article 356, resulting in
displacement of the elected government of a State and
imposition of President’s rule in the State, is of much
greater significance a. effecting large number of persons.
We may, in this context, refer to clause (b) of the second
proviso to Article 311 (2) whereunder it is permissible to
dispense with the requirements of Article 311 (2) if the
authority empowered to dismiss or remove a person or to
reduce him in rank is satisfied that for some reason, to be
recorded by that authority in writing, it is not reasonably
practicable to hold such inquiry. Clause (3) of Article 311
makes the said decision of the authority final. In spite of
the said provision attaching finality to the decision this
Court, in Tulsiram Patel (supra), has held :
"The finality given by clause (3) of Article
311 to the disciplinary authority’s decision
that it was not reasonably practicable to hold
the inquiry is not binding upon the court.
The court will also examine the charge of mala
fides, if any, made in the writ petition. In
examining the relevancy of the reasons, the
court will consider the situation which
according to the disciplinary authority made
it come to the conclusion that it was not
reasonably practicable to hold the inquiry.
If the court finds that the reasons are ir-
relevant, then the recording of its satis-
faction by the disciplinary authority would
be, an abuse of power conferred upon it by
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clause (b) and would take the case out of the
purview of that clause and the impugned order
of penalty would stand invalidated." (p.274)
24.Clause (b) differs from clause (c) in as much as under
clause (b) the competent authority is required to record in
writing the reasons for its satisfaction and there is no
such requirement in clause (c). This difference, in our
opinion, does not mean that the satisfaction of the
President or the Governor under clause (c) is immune from
16
judicial review and is not justiciable. It only means that
the provisions contained in clause (c) are more akin to
those contained in Article 356(1) which also does not
contain any requirement to record the reasons for the
satisfaction of the President. Since the satisfaction of
the President in the matter of making a proclamation under
Article 356(1) is justiciable within the limits indicated in
S.R. Bommai (supra) the satisfaction of the President or the
Governor, which forms the basis for passing an order under
clause (c) of the second proviso to Article 311 (2), can
also be justiciable within the same limits.
25.Under clause (c) of the second proviso to Article 311(2)
the President or the Governor has to satisfy himself about
the expediency in the interests of the security of the State
to hold an enquiry as prescribed under Article 311 (2). Are
the considerations involving the interests of the security
of the State of such a nature as to exclude the satisfaction
arrived at by the President or the Governor in respect of
the matters from the field of justiciability? We do not
think so. Article 19(2) of the Constitution permits the
State to impose, by law, reasonable restrictions in the in-
terests of the security of the State on the exercise of the
right to freedom of speech and expression conferred by sub-
clause (a) of clause (1) of Article 19. The validity of the
law imposing such restrictions under Article 19(2) is open
to judicial review on the ground that the restrictions are
not reasonable or they are not in the interests of the
security of the State. The Court is required to adjudicate
on the question whether a particular restriction on the
right to freedom of speech and expression is reasonable in
the interests of the security of the State and for that
purpose the Court takes into consideration the interests of
the security of the State and the need of the restrictions
for protecting those interests. If the Courts are competent
to adjudicate on matters relating to the security of the
State in respect of restrictions on the right to freedom of
speech and expression under Article 19 (2) there appears to
be no reason why the Courts should not be competent to go
into the question whether the satisfaction of the President
or the Governor for passing an order under Article 311 (2)
(c) is based on considerations having a bearing on the
interests of the security of the State. While examining the
validity of a law imposing restrictions on the right to
freedom of speech and expression this Court has emphasised
the distinction between security of the State and mainte-
nance of public order and has observed that only serious and
aggravated forms of public order which are calculated to en-
danger the security of the State would fall within the ambit
of clause (2) of Article 19. (See : Romesh Thappar v. The
State of Madras, 1950 SCR 594, at p. 601). So also in
Tulsiram Patel (supra) the Court has pointed out the
distinction between the expressions ’security of the State’,
’public order’ and ’law and order’ and has stated that
situations which affect public order are graver than those
which affect law and order and situations which affect
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security of the State are graver than those which affect
public order. The President or the Governor while
exercising the power under Article 311 (2) (c) has to bear
in mind this distinction between situations which affect the
security of the State and the situations which affect public
order or law and order and for the purpose of arriving at
his satisfaction for the purpose of passing an order under
Article 311 (2) (c) the President or the Governor can take
into
17
consideration only those circumstances which have a bearing
on the interests of the security of the State and not on
situations having a bearing on law and order or public
order. The satisfaction of the President or the Governor
would be vitiated if it is based on circumstances having no
bearing on the security of the State. If an order passed
under Article 311(2) (c) is assailed before a court of law
on the ground that the satisfaction of the President or the
Governor is not based on circumstances which have a bearing
on the security of the State the Court can examine the cir-
cumstances on which the satisfaction of the President or the
Governor is based and if it finds that the said
circumstances have no bearing on the security of the State
the court can hold that the satisfaction of the President or
the Governor which is required for passing such an order has
been vitiated by wholly extraneous or irrelevant
considerations.
26. It would be useful, in this context, to take note of
the decision of the House of Lords in Council of Civil
Service Unions v. Minister for the Civil Services, 1985 (1)
AC 374, which related to the Government Communications Head
Quarters (GCHQ). The main functions of GCHQ were to ensure
the security of military and official communications and to
provide the government with signals intelligence which in-
volved the handling of secret information vital to the
national security. Since 1947 staff employed at GCHQ had
been permitted to belong to national trade unions and most
had done so. There was a well-established practice of
consultation between the official and trade union sides
about important alterations in the terms and conditions of
service of the staff. On December 22, 1983 the Minister for
the Civil Service gave an instruction for the immediate
variation of the terms and conditions of service of the
staff with the effect that they would no longer be permitted
to belong to national trade unions. There had been no
consultation with the trade unions or with the staff at GCHQ
prior to the issuing of that instruction. The said in-
struction was challenged by a trade union and six
individuals who sought judicial review of the said
instruction. Immunity from judicial review was claimed on
the ground that the said instruction had been issued in
exercise of the prerogative power of the Crown. The House
of Lords held that executive action was not immune from
judicial review merely because it was carried out in
pursuance of the power derived from a common law or
prerogative, rather than a statutory source, and a minister
acting under a prerogative power might, depending upon its
subject matter, be under the same duty to act fairly as in
the case of action under a statutory power. On behalf of
the Minister it was submitted that prior consultation would
involve a real risk that it would occasion the very kind of
disruption that was threat to national security and which it
was intended to avoid. While recognising that the decision
on whether the requirements of national security outweigh
the duty of fairness in any particular case, is for the
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Government and not for the courts, Lord Fraser of Tully
belton said
"But if the decision is successfully chal-
lenged on the ground that it has been reached
by a process which is unfair then the
Government is under an obligation to produce
evidence that the decision was, in fact, based
on grounds of national security," (p. 402)
According to Lord Scarman
18
"The point of principle in the appeal is as to
the duty of the court when in proceedings
properly brought before it a question arises
as to what is required in the interest of
national security. The question may arise in
ordinary litigation between private persons as
to their private rights and obligations: and
it can arise as in this case in proceedings
for judicial review of a decision by a public
authority."
"But, however it arises, it is a matter to be
considered by the court in the circumstances
and context of the case. Though there, are
limits dictated by law and common sense which
the court must observe in dealing with the
question the court does ’not abdicate its
judicial functions. If the question arises as
a matter of fact, the court requires evidence
to be given. If it arises as a factor to be
considered in reviewing the exercise of a
discretionary power, evidence is also needed
so that the court may determine whether it
should intervene to correct excess or abuse of
the power," [p. 404]
27. Similarly Lord Roskill has said:
"The courts have long shown themselves
sensitive to the assertion by the executive
that considerations of national security must
preclude judicial investigation of a
particular individual grievance. But even in
that field the courts will not act on a mere
assertion that questions of national security
were involved. Evidence is required that the
decision under challenge was in fact founded
on those grounds. ’Mat that principle exists
is 1 beyond doubt.?’ [p. 420]
28.On the basis of the evidence that was adduced in that
case it was held that the evidence established that the
minister had considered, with reason, that prior consul-
tation about her instruction would have involved a risk of
precipitating disruption at GCHQ and revealing vulnerable
areas of operation, and, accordingly, she had shown that her
decision had in fact been based on considerations of
national security that out weighed the applicants’
legitimate expectation of prior consultation.
29. In Bakshi Sardari Lal (Dead) through LRs Ors. v.
Union of India & Anr., 1987 (4) SCC 114, in a challenge
to orders of dismissal passed under clause (c) of the
second. proviso to Article 311 (2) it was contended on
behalf of the appellants that the High Court was wrong in
holding that the sufficiency of satisfaction of the Presi-
dent was not justiciable. While dealing with the said
contention, the court, after referring to the decision in
Tulsiram Patel (supra), has observed :
"The record of the case produced before us
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clearly indicates that the reason has been
recorded though not communicated. That would
satisfy, the requirements of the law as
indicated in Tulsiram Patel Case . The plea of
mala fides as had been contended before the
High Court and causally reiterated before us
arises out of the fact that typed orders dated
June 3, 1971, were already on record in the
file when the papers were placed before the
President; such a contention is without any
substance." [p. 121]
30.This would show that the court did go into the question
whether the impugned orders were vitiated by mala, fides.
As noticed earlier in Tulsiram Patel (supra) also the Court,
while dealing with the Madhya Pradesh Police Forces matters,
did examine the question whether the impugned orders of
dismissal passed under Article 311(2)(c) were vitiated by
mala fides or were based on irrelevant consid-
19
erations and after considering all the materials that were
produced before the Court by the State Government, the Court
recorded the finding that the facts leave no doubt that the
situation was such that prompt and urgent action was
necessary and the holding of inquiry into the conduct of
each of the petitioners would not have been expedient in the
interests of the security of the State.
31.We are, therefore, of the opinion that an order passed
under clause (c) of the second proviso to Article 311 (2) is
subject to judicial review and its validity can be examined
by the court on the ground that the satisfaction of the
President or the Governor is vitiated by mala fides or is
based on wholly extraneous or irrelevant grounds within the
limits laid down in S.R Bommai (supra).
32.In order that the Court is able to exercise this power of
judicial review effectively it must have the necessary
material before it to determine whether the satisfaction of
the President or the Governor as the case may be, has been
arrived at in accordance with the law and is not vitiated by
mala fides or extraneous or irrelevant factors. This brings
us to the question whether the Government is obligated to
place such material before the Court. It is no doubt true
that unlike clause (b) of the second proviso to Article 311
(2) which requires the authority to record in writing the
reason for its satisfaction that it is not reasonably
practicable to hold such inquiry clause (c) of the second
proviso does not prescribe for the recording of reasons for
the satisfaction. But the absence of such a requirement to
record reason for the satisfaction does not dispense with
the obligation on the part of the concerned Government to
satisfy the court or the Tribunal if an order passed under
clause (c) of the second proviso to Article 311 (2) is chal-
lenged before such court or tribunal that the satisfaction
was arrived at after taking into account relevant facts and
circumstances and was not vitiated by mala fides and was not
based on extraneous or irrelevant considerations. In the
absence of the said circumstances being placed before the
court or the Tribunal it may be possible for the concerned
employee to establish his case that the satisfaction was
vitiated by mala fides or was based on extraneous or
irrelevant considerations. While exercising the power under
Article 311 (2) (c) the President or the Governor acts in
accordance with the advice tendered by the Council of
Ministers. (See : Samsher Singh v. State of Punjab, 1975 (1)
SCR 814). Article 74(2) and Article 163 (3) which preclude
the court from inquiring into the question whether any, and
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if so, what advice was tendered by the Ministers to the
President or the Governor enable the concerned Government to
withhold from the court the advice that was tendered by the
Ministers to the President or the Governor. But, as laid
down in S.R. Bommai (supra), the said provisions do not
permit the Government to withhold production in the Court of
the material on which the advice of the Ministers was based.
This is, however, subject to the claim of privilege under
Sections 123 and 124 of the Evidence Act in respect of a
particular document or record. The said claim of privilege
will have to be considered by the court or tribunal on its
own merit. But the upholding of such claim for privilege
would not stand in the way of the concerned Government being
required to disclose the nature of the activities of the
employee on the basis of which
20
the satisfaction of the President or the Governor was
arrived at for the purpose of passing an order under clause
(c) of the second proviso to Article 311 (2) so that the
court or tribunal may be able to determine whether the said
activities could be regarded as having a reasonable nexus
with the interest of the security of the State. In the
absence of any indication about the nature of the activities
it would not be possible for the court or tribunal to
determine whether the satisfaction was arrived at on the
basis of relevant considerations. The nature of activities
in which employee is said to have indulged in must be
distinguished from the material which supports his having
indulged in such activities. The non-disclosure of such
material would be permissible if the claim of privilege is
upheld. The said claim of privilege would not extend to the
disclosure of the nature of the activities because such
disclosure would not involve disclosure of any information
connecting the employee with such activities or the source
of such information.
33.In our opinion, therefore, in a case where the validity
of an order passed under clause (c) of the second proviso to
Article 111(2) is assailed before a court or a Tribunal it
is open to the court or the Tribunal to examine whether the
satisfaction of the President or the Governor is vitiated by
mala fides or is based on wholly extraneous or irrelevant
grounds and for that purpose the Government is obliged to
place before the court or tribunal the relevant material on
the basis of which the satisfaction was arrived at subject
to a claim of privilege under Sections 123 and 124 of the
Evidence Act to withhold production of a particular document
or record. Even in cases where such a privilege is claimed
the Government concerned must disclose before the Court or
tribunal the nature of the activities in which the Gov-
ernment employee is said to have indulged in.
34.In the present case the appellants had sought production
and inspection of the following documents:
(a) The records and files containing the
"information" on the basis of which the
President was "satisfied " for the purpose of
exercising his powers under clause (c) of the
second proviso to Article 311 (2).
(b) The records and files containing the
description of "activities of the petitioners
which warranted their ’dismissal’ from
service".
(c) The records and files containing the
details of "misconduct" attributed to the
petitioners, as covered in CCS (Conduct)
Rules, 1965.
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(d) A copy of the charge of misconduct and
the statement of allegation in support thereof
framed by the Competent Authority against the
petitioners before coming to the conclusion
that "it is not expedient to hold an inquiry
in the case of Shri B.B. Raval (petitioners)."
(e) A copy of the original order passed by
the President of India under Article 311
(2)(c) on the basis of which Shri R.
Mahadevan, Under Secretary to the Government
of India, Ministry of Honic Affairs issued the
impugned order dated 26th December, 1980 "By
order and in the name of the
21
President".
(f) A copy of the order of delegation of
powers of the President of India authorising
Shri R. Mahadevan, Under Secretary to
authenticate the order of the President and
issue the same in his name.
(g) Records and files containing the de-
liberations, recommendations and findings of
the Committee of Advisors (as envisaged in
O.M. dated 26th July, 1980) advising th
e
President of India to exercise powers under
Article 311 (2)(c) of the Constitution.
(h) Copies of any other records, files,
notification or recommendations relevant to
the issue of the impugned order, that the
Hon’ble Tribunal may direct the respondents to
produce for rendering full and effective
assistance to the Hon’ble Tribunal in the
interest of justice and for adjudication of
this case.
35. Dr. Madhav Godbole in his affidavit claimed privilege
under Article 74(2) as well as under Sections 123 and 124 of
the Evidence Act. The Tribunal after referring the decision
of this Court in S.P. Gupta & Ors., etc. etc. v. Union of
India & Ors. etc. etc., 1982 (2) SCR 365, has observed that
the following classes of documents are protected from
disclosure :
"(i) Cabinet minutes, minutes of discussions
between heads of departments, high level
inter-departmental communications and
dispatches from ambassadors abroad.
(ii) Papers brought into existence for the
purpose of preparing a submission to cabinet.
(iii) Documents which relate to the framing of
the Government policy at a high level.
(iv) Notes and minutes made by the respective
officers on the relevant files, information
expressed or reports made and gist of official
decisions reached.
(v) Documents concerned with policymaking
within departments including minutes and the
like by junior officials and correspondence
with outside bodies."
36.The Tribunal, after examining the records produced before
it, has observed that the records contain cabinet minutes,
papers brought into existence for the purpose of preparing
submission to the cabinet, notes made by the respective
officers, information expressed and the gist of official
decisions. Having regard to the fact that the appellants
were working in a highly sensitive Organisation entrusted
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with the delicate job of gathering, collecting and analysing
intelligence necessary to maintain the unity, integrity and
sovereignty of the country and that secrecy is the essence
of the organisation and exposure may tend to demolish the
organisation and aggravate the hazards in gathering informa-
tion and dry up the sources that provide essential and
sensitive information needed to protect public interest, the
Tribunal has held that it will not be in public interest to
permit disclosure of such documents. The Tribunal has,
therefore, upheld the claim of privilege. We do not find
any ground to take a different view in the matter.
37.After looking into the records the Tribunal has recorded
the finding that the materials considered by the President
relate to the activities of the appellants which would
prejudicially affect the security of
22
the State and that the materials relied upon for the
satisfaction of the President have nothing to do with the
activities of the appellants in relation to IBEA and that
the impugned orders have not been passed in violation of the
interim order passed by this Court in W.P. O Nos. 1119 of
1980 and that there is no substance in the appellants’ case
that the orders of dismissal are not bona fide and had been
passed to victimise the appellants for promoting and
participating in the activities of IBEA. The learned
Additional Solicitor General has submitted that the Tribunal
has not committed any error in adopting this course and has
placed reliance on the decision of this Court in Jamaat-e-
Islamdi Hind v. Union of India, 1995 (1) SCC 428.
38.In Jamaat-e-Islamdi Hind (supra) a notification had been
issued by the Government of India under Section 3 of the
Unlawful Activities (Prevention) Act, 1967 declaring that
the Jamaat-e-Islami Hind was an unlawful Association. The
said notification was referred for adjudication to the
Tribunal constituted under the said Act. Before the
Tribunal the only material produced by the Central
Government was a resume prepared on the basis of some
intelligence reports and the affidavits of two officers who
spoke only on the basis of the records and not from personal
knowledge. The Tribunal held that there was sufficient
cause for declaring the Association to be unlawful and
confirmed the notification. On behalf of the appellant it
was urged that the only material produced at the inquiry
does not constitute legal evidence for the purpose in as
much as it was, at best, hearsay and that too without
disclosing the source from which it emanates to give an
opportunity to the appellant to effectively rebut the same.
On the other hand, on behalf of the respondent it was
submitted that the requirement of natural justice in such a
situation was satisfied by mere disclosure of information
without disclosing the source of the information. This
Court, while holding that the minimum requirement of natural
justice must be satisfied to make the adjudication mean-
ingful, observed that the said requirement of natural
justice in a case of this kind had to be tailored to
safeguard public interest which must always out-weigh every
lesser interest. It was said:
"It is obvious that the unlawful activities of
an association may quite often be clandestine
in nature and, therefore, the source of
evidence of the unlawful activities may
require continued confidentiality in public
interest. In such a situation, disclosure of
the source of such information, and, may be,
also full particulars thereof, is likely to be
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against the public interest. ....... However,
the nondisclosure of sensitive information and
evidence to the association and its office-
bearers, whenever justified in pubic interest.
does not necessarily imply its non-disclosure
to the Tribunal as well." [p.447]
39.These observations in Jamaat-e-Islamdi Hind (supra) lend
support to the view that in a case where the material is of
such a nature that it requires continued confidentiality in
public interest it would be permissible for the court or
tribunal to look into the same while permitting the non-
disclosure to the other party to the adjudication. It
cannot, therefore, be said that the Tribunal, in the present
case, was in error in looking into the record for the
purpose of determining whether the satisfaction has been
vitiated for any of the reasons mentioned by the appellants.
40. The learned counsel for the appellants
23
have invited our attention to the averments contained in
C.M. No. 8494 of 1980 filed on behalf of the respondent in
W.P. No. 1117-19 of 1980 in this Court in support of their
submission that the impugned orders of dismissal have been
passed on the basis of the activities referred to in para 6
of the said application. This submission has to be,
rejected in view of the finding recorded by the Tribunal
that the materials considered by the President relate to the
activities of the appellants which would prejudicially
affect the security of the State and that the said materials
have nothing to do with the activities of the appellant in
relation to IBEA.
41. Having regard to the facts and circumstances of the
case we are unable to hold that the impugned orders for the
dismissal of the appellants are vitiated by malafides or are
based on wholly extraneous or irrelevant grounds and we do
not find any ground to interfere with the decision of the
Tribunal. The appeals are, therefore, dismissed. But in
the circumstances without any order as to costs.
27