IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:06.01.2006 CORAM: THE HON'BLE MR. JUSTICE P. SATHASIVAM AND THE HON'BLE MRS. JUSTICE CHITRA VENKATARAMAN WRIT PETITION NO.18384 OF 2003 M. Kulam Mohamed .. Petitioner vs. 1. The General Manager Southern Railway, Chennai 600 003. 2. Union of India rep. by the Secretary, Ministry of Railways Railway Board, Rail Bhavan New Delhi 110 011. 3. The Registrar Central Administrative Tribunal Chennai 104. .. Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus as stated therein. For petitioner : Mr. K. Chandru, Sr. Counsel for Mr. R. Yashod Vardhan For respondents : Mr. R.. Thiyagarajan, Sr. Counsel 1 and 2 for Mr. V. Radhakrishnan ORDER (Order of the Court was made by P. SATHASIVAM,J.) The petitioner by name M. Kulam Mohamed challenges the order of the Central Administrative Tribunal, Madras Bench dated https://hcservices.ecourts.gov.in/hcservices/ 30.09.2002 made in Original Application No.695 of 2001 and as a consequential relief he seeks direction to respondents 1 and 2 to reinstate him in service with all attendant benefits. 2. According to the petitioner, he joined the services of the Indian Railways in April 1977 as Ticket Collector. On 08.07.2000, he was promoted to the post of Chief Travelling Ticket Inspector Grade II. On 16.09.2000, he took up the examination for further promotion to the post of Assistant Commercial Manager. While so, on 26.09.2000, he received an order of dismissal dated 12.09.2000, stating that the President of India was purportedly satisfied on the basis of information available that his activities were such as to warrant his dismissal from service and that was not expedient to hold an enquiry in the interest of the security of the State as per Sub-clause ( c ) of second proviso to Clause (2) of Article 311 of the Constitution. On 11.11.2000, he submitted a representation to the President of India through proper channel stating that he had rendered 24 years of unblemished service in the Railways and had never indulged in any activity prejudicial to the security of the State. No prosecution, inquiry or proceedings had been initiated or were pending against him. In spite of reminders, there was no response and the petitioner moved the Central Administrative Tribunal by filing O.A.No.695 of 2001. The Tribunal, by order dated 30.09.2002, after finding that the High Power Committee recommended that action should be taken against him by invoking the powers under Sub-clause ( c ) of second proviso to Article 311 (2) of the Constitution of India, dismissed his application; hence, having no other efficacious remedy, the petitioner has filed the above writ petition. 3. Heard Mr. K. Chandru, learned senior counsel for the petitioner and Mr. R. Thiyagarajan, learned senior counsel for respondents 1 and 2. 4. The only point for consideration in this writ petition is, whether the Tribunal is justified in dismissing the original application filed by the petitioner questioning the order of dismissal from service passed by the President of India? 5. Though the Tribunal itself has extracted the order of dismissal, in order to understand the question raised, we once again reproduce the same. https://hcservices.ecourts.gov.in/hcservices/ "GOVERNMENT OF INDIA MINISTRY OF RAILWAYS (RAILWAY BOARD) - - - - - No.E(D & A) 2000/NS/S/1 New Delhi, dated 12.9.2000 ORDER To Shri.M.Kulam Mohd., Chief traveling Ticket Inspector Gr.II, Southern Railway, Chennai. Whereas the President is satisfied under sub- clause ( c ) of the proviso to clause (2) of Article 311 of the Constitution that in the interest of the security of the State, it is not expedient to hold an inquiry in the case of Shri M.Kulam Mohd., Chief Traveling Ticket Inspector Gr.II, Southern Railway. And whereas the President is satisfied that, on the basis of the information available, the activities of Shri M.Kulam Mohd., Chief Traveling Ticket Inspector Gr.II, Southern Railway are such as to warrant his dismissal from service. Accordingly, the President hereby dismisses Shri M.Kulam Mohd., Chief Traveling Ticket Inspector Gr.II, Southern Railway with immediate effect. The President has also ordered that no compassionate allowance would be paid to Shri M.Kulam Mohd. BY ORDER AND IN THE NAME OF THE PRESEIDENT (Inder Mohan) Joint Director Estt.(D&A) Railway Board" 6. It is relevant to refer Article 311 of the Constitution of India. " 311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State – (1) No person who is a member of a civil service of the Union or an all-India service or a civil https://hcservices.ecourts.gov.in/hcservices/ service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as 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) where 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; or ( c ) where the President or the 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. " 7. It is also relevant to refer Article 74 of the Constitution of India, which reads as under. " 74. Council of Ministers to aid and advise President – (1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice: Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration. https://hcservices.ecourts.gov.in/hcservices/ (2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any Court. " 8. The order of dismissal makes it clear that the President of India, on satisfying himself on the basis of the information available and after finding that the activities of M. Kulam Mohamed, Chief Travelling Ticket Inspector Grade II, Southern Railway, petitioner herein, warranted his dismissal from service, passed an order on 12.09.2000 under Sub-clause ( c ) of second proviso to Clause (2) of Article 311 of the Constitution of India. 9. It is the specific case of the petitioner before the Tribunal as well as in this Court that even though under second proviso to Article 311 the President is not bound to record reasons for dispensing the enquiry, it does not mean that the petitioner is prevented from knowing the charge against him. According to him, he is not having even a single adverse remark of the Vigilance Department throughout his carrier. In such a circumstance, invoking power under second proviso to Article 311 of the Constitution of India is unwarranted and there is no basis for the authorities to reach the conclusion that no enquiry is required and this has affected his right to live and personal liberty. 10. Mr. K. Chandru, learned senior counsel for the petitioner and Mr. R. Thiyagarajan, learned senior counsel for respondents 1 and 2 very much relied on the decision of the Supreme Court in the case of A.K. Kaul vs. Union of India reported in A.I.R. 1995 S.C. 1403 in support of their stand with respect to order of dismissal passed by the President of India. In the case before the Supreme Court, the petitioners / appellants A.K. Kaul and another 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 as Association called "the Intelligence Bureau Employees Association" (IBEA) for the purpose of venting their grievances. The appellants, A.K. Kaul and Verghese Joseph, were elected as the General Secretaries of IBEA. 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 took part in the activities of the IBEA would attract disciplinary action. Writ Petitions (Civil) Nos.1117-1119 were filed in the Supreme Court challenging the said circular. On July 21, 1980, the Supreme Court issued Rule Nisi on the said writ petitions and also passed an interim order directing that pending the writ petitions no disciplinary action should be taken against any member of the IBEA for the reasons mentioned in the circular. On December 26, 1980, orders were passed dismissing the https://hcservices.ecourts.gov.in/hcservices/ appellants from service. The order of dismissal of appellant A.K. Kaul, is on 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 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 the President) Sd/- (R.Mahadevan) Under Secretary to the Govt. of India Ministry of Home Affairs" The above factual details and the order passed by the President of India in the case of A.K. Kaul and another show that the said case is identical to the case on hand. 11. Now, let us refer the discussion, law laid down and the ultimate conclusion therein. " 21. 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 (1994 (3) SCC I : 1994 AIR SCW 2946) (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, article 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. https://hcservices.ecourts.gov.in/hcservices/ 22. Is there anything in the provisions of Clause (c) of the second proviso to Article 311(2) which compels a departure from the principles laid down in S.R. Bommai, (1994 AIR SCW 2946) (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 to 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 affecting large number of persons. We may, in this context, refer to Clause (b) of the second proviso to Article 311(2) where under 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, (1985 Supp (2) SCR 131: AIR 1985 SC 1416) (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 irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by 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) (of SCR) : (at p.1481 of AIR). 23. 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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, (1994 AIR SCW 2946) (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. 24. 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 interests 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 maintenance of public order and has observed that only serious and aggravated forms of public order which are calculated to endanger the security of the State would fall within the ambit of Clause (2) of Article 19. https://hcservices.ecourts.gov.in/hcservices/ (See: Romesh Thappar v. The State of Madras,1950 SCR 594, at p. 601 : (AIR 1950 SC 124 at p.128). So also in Tulsiram Patel (AIR 1985 SC 1416) (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 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 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 circumstances 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. 29. 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, (1994 AIR SCW 2946) (supra). 30. 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 https://hcservices.ecourts.gov.in/hcservices/ factors. This brings us to the question whether the Government is obliged 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 challenged 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 not 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) I SCR 814: (AIR 1974 SC 2192). Article 74 (2) and Article 163(3) which preclude the Court from inquiring into the question whether any, and 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, (1994 AIR SCW 2946) (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 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 https://hcservices.ecourts.gov.in/hcservices/ 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 on any information connecting the employee with such activities or the source of such information. 31. In our opinion, therefore, in a case where the validity of an order passed under Clause (c)of the second proviso to Article 311(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 Government employee is said to have indulged in. " 12. Inasmuch as in A.K. Kaul's case their Lordships have relied on the case of S.R. Bommai vs. Union of