IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.60 of 2010 1. THE UNION OF INDIA THROUGH ITS SECRETARY, DEPARTMENT OF CIVIL AVIATION, A-WING, JANPATH BHAWAN, JANPATH, NEW DELHI. 2. BUREAU OF CIVIL AVIATION, SECURITY, MINISTRY OF CIVIL AVIATION, GOVERNMENT OF INDIA, A-WING, JANPATH BHAWAN, JANPATH, NEW DELHI. 3. THE COMMISSIONER OF SECURITY (CIVIL AVIATION), BUREAU OF CIVIL AVIATION, SECURITY, SECURITY OF CIVIL AVIATION, GOVERNMENT OF INDIA, A-WING, JANPATH BHAWAN, JANPATH, NEW DELHI. 4. ASSISTANT COMMISSIONER OF SECURITY (CIVIL AVIATION), BUREAU OF CIVIL AVIATION, SECURITY, SECURITY OF CIVIL AVIATION, GOVERNMENT OF INDIA, A-WING, JANPATH BHAWAN, JANPATH, NEW DELHI. …. …. RESPONDENT/APPELLANTS VERSUS 1. EX-ARMYMEN'S PROTECTION SERVICES PRIVATE LIMITED THROUGH ITS MANAGING DIRECTOR, SUNIL KUMAR SINHA, SON OF LATE SHYAM BIHARI LAL, 105-W, KESHAV PALACE, KHAJPURA, POLICE STATION-SHASTRI NAGAR, DISTRICT- PATNA. …. …. ………….. PETITIONER/RESPONDENT 2. THE DIRECTOR (SECURITY) AIRPORT AUTHORITY OF INDIA, HAJI BHAWAN, NEW DELHI. 3. AIRPORT AUTHORITY OF INDIA THROUGH ITS DIRECTOR, JAI PRAKASH NARAYAN INTERNATIONAL AIRPORT, PATNA. 4. AIRPORT DIRECTOR, AIRPORT AUTHORITY OF INDIA, BAGDOGRA AIRPORT.........PERFORMA RESPONDENT / RESPONDENTS ----------- For the Appellants : Mr. Sarvdeo Singh, C.G.C. For the Respondents: Mr. Y.V. Giri, Senior Advocate Mr. Ashish Giri, Advocate ----------- PRESENT- THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA - 2 - O R D E R (27.04.2010) As per Dipak Misra, C.J. – Questioning the defensibility of the order dated 27.10.2009 passed by the learned single Judge in CWJC No. 5221 of 2009, the present appeal has been preferred under Clause X of the Letters Patent. 2. Sans unnecessary details, the facts which are essential to be exposited are that the respondent no. 1, Ex- Armymen’s Protection Services Private Limited, was granted security clearance by the Bureau of Civil Aviation Security, Ministry of Civil Aviation, Govt. of India (hereinafter referred to as `the BCAS’) for a period of five years. On the basis of the grant of the said security clearance, the respondent-company entered into an agreement with the aircraft operators for doing business of ground handling agency at many an Airport for various Airline Operators in the country. The security clearance granted in his favour was withdrawn on 27.11.2008 which came to be assailed in CWJC No.758 of 2009. The learned single Judge expressing the view that the security clearance could not have been withdrawn without following the principles of natural justice - 3 - allowed the writ petition. The learned single Judge further opined that the material that was available in the file or in the order shown would, in fact, not justify an emergent action and hearing could not be dispensed with and further there should have been disclosure of grounds as the same in the obtaining factual matrix cannot be regarded as an empty formality. Being of this view, he further directed that there should be disclosure of the material but the writ petitioner would not be entitled to question as to the source of the information from which the material had been gathered by the respondents. 3. Be it noted, while invoking the doctrine of post- decisional hearing, the learned single judge directed that the interim order passed during the pendency of the writ petition shall continue to operate. 4. After the order was passed by the learned single Judge, the competent authority of the Ministry of Civil Aviation granted personal hearing to the writ petitioner, who appeared through his Advocate, and eventually, a decision was rendered on 20.04.2009 whereby the cancellation of the security clearance was upheld. 5. Being dissatisfied with the aforesaid order, the - 4 - respondent-company preferred a writ petition forming the subject matter of CWJC No. 5221 of 2009. The learned single Judge took note of the initial withdrawal, the order passed on the earlier occasion, non-disclosure of grounds in support of the action taken and the manner in which the post- decisional hearing was conducted, the provisions of the Aircraft Act, 1934 (for brevity `the Act’), the Aircraft Rules, 1937 (hereinafter referred to as `the 1937 Rules’), the Circular No. 4 of 2007 dated 19.02.2007 issued by the Bureau of Civil Aviation Security, the stand taken by the respondent-company in the writ petitioner that there were adverse reports against the appellants which are detrimental to the national interest and national security, the I.B. Report that was produced before the Court, the adverse civil consequences that have been visited to the writ petitioner, the concept of arbitrary action which invites the frown of Article 14 of the Constitution of India, the conceptual non-acceptability of subjective satisfaction, the non-disclosure of the allegations that had come against the respondent despite the direction issued on the earlier occasion, the futile exercise carried on in the process of post-decisional hearing, and ultimately, - 5 - proceeded to consider the controversy himself. 6. The learned single Judge, as is manifest from the order, while taking up the burden on himself, has expressed thus: “Now Court can consider the grounds, as disclosed to it in sealed cover. The sequence of event, as noted above, can lead to one conclusion, that is, over anxiety of the respondents in not disclosing the ground. The reason now appears to be obvious. The reason is not of any national security but apparently is that disclosing the ground would cause serious embarrassment to the authority, who took the decision. Without mentioning the fact verbatim all that I can say is that merely because petitioner has good relation with political leaders or has body guards can be no ground for threat of national security. Pleasing politicians and Bureaucrats to maintain good relations to get contract works done expeditiously can not be a matter of national security. Uncorroborated and unconfirmed report of its alleged involvement in criminal cases cannot be a question involving national security. It cannot also be a ground for withdrawing the security clearance. Though - 6 - the Court was tempted to quote extensively from the reports, as submitted to it, it is advisably not doing so, for the reasons mentioned above. The reports, as submitted in a sealed cover is being returned. True photocopies thereof is being resealed and would form part of record and retain with record. They would be opened only pursuant to any judicial order passed in any judicial proceeding. All that this Court can say and hold on the facts, as disclosed to this Court is that there was no case of such an emergency that the security clearance could be withdrawn without hearing nor was it a case where authorities were justified in with-holding the ground on which such action was taken nor it is a case where it can be said to be threat of national security in any manner on objective considerations of the matter.” 7. After so stating, the learned single Judge has opined that even in cases of preventive detention on the ground of national security, a gist of allegations is to be disclosed which form the grounds for preventive detention and, in the case at - 7 - hand, the decision making process has been totally erroneous and, therefore, the decision is indefensible. 8. Be it noted, the learned single Judge placed reliance on the decision rendered in A.K. Sharma & Anr. V. Director General of Civil Aviation, Delhi & Ors., AIR 2002 Delhi 357, especially paragraph 34 of the same. Thereafter, he took note of certain other aspects which we think it seemly to reproduce: “Though not material for this case but as question about national security having been raised, I may notice one aspect. In para 37 of the writ petition, petitioner has specifically stated that some ground handling agencies have been permitted to operate at sensitive airports at Guwahati and Dibrugarh for quite sometime without any security clearance. To this , the respondent’s reply is in para 46 of the counter affidavit wherein it is stated that those persons were operating as ground handling agency before instructions, as contained in Circular no. 4 of 2007 was issued and have not come adverse notice of the Bureau. Regrettably, the Circular aforesaid, which is Annexure 1 to the writ petition, in no certain term lays down that without security clearance no one - 8 - shall be permitted to operate. Admittedly in sensitive area like Guwahati and Dibrugarh, ground handling agencies are allowed to operate without any such security clearance, which itself is a matter of concern if the authorities are so sanguine about national security.” 9. Being of this view, he quashed the order dated 20.04.2009 whereby the order of cancellation of the licence dated 27.11.2008 was affirmed. 10. We have heard Mr. Sarvadeo Singh, learned counsel for the appellants, and Mr. Y.V. Giri, learned Senior Counsel along with Mr. Ashish Giri, for the respondent no. 1. 11. To appreciate the controversy, it is condign to refer to Rule 92 of the 1937 Rules. The said Rule deals with ground handling services. It reads as follows: “92. Ground Handling Services- The licensee shall, while providing ground handling service by itself, ensure a competitive environment by allowing the airline operator at the airport to engage, without any restriction, any of the ground handling service provider who is permitted by the Central Government to provide such service: Provided that such ground handling service provider shall be subject to the security clearance of the Central Government.” - 9 - 12. At this juncture, we may note with profit the circular called DGCA circular dated 28.09.2007. The said circular has been reproduced by the Division Bench of the Bombay High Court in Akbar Travels of India (Pvt.) Ltd. vs. Union of India & Ors. (Writ Petition LOD. No. 656 of 2009), disposed of on 10.06.2009. The Division Bench of the Bombay High Court has dealt with the same in paragraphs 20 and 21 which we think apt to reproduce: “20. The Circular No. 4 of 2007 issued by the Bureau is more specific and states that an Aircraft Operator shall enter into contract with the ground handling agencies only after prior security clearance to these entities is obtained from D.G.C.A. and there is an approval from Airport Operator. It reads as under:- “D. Circular No. 4/2007 issued by BCAS “iii. Aircraft operator shall enter into contract with the ground handling agencies only after prior security clearance to these entitles from the BCAS and approval from the AAI/Airport Operator. iv. In case AAI/Airport Operator or Aircraft Operator intend to appoint a new ground handling agency, the details of such agency is required to be sent to BCAS along with the profile of such company at least 3 months in advance so that - 10 - the background check of the ground handling agency can be done by the BCAS through IB and local police. v. Background check in respect of the ground handling agencies working in the airports is necessary. Therefore, AAI/Aircraft Operator shall send the details of the each existing ground handling company, already engaged by them for ground handling functions along with the company, profile and address, telephone numbers etc. of Board of Directors and management so that the necessary action could be taken by the BCAS to get the antecedents verified of such agencies. In case any company comes to adverse notice, the same shall not be allowed to work at the airport and shall be liable to be removed from the Airport. vi. BCAS Guidelines of airport entry passes issued in 1996:- 6.10. The Bureau of Civil Aviation Security reserve the right to refuse to issue or to withdraw Airport pass, already issued, without assigning any reason, in public interest.” 21. From a perusal of the same it is apparent that unless the bureau issues the Airport pass as per the BCAS guidelines and the necessary security clearance is obtained, then, the ground handling - 11 - agencies cannot function even if the contract is subsisting. That is apparent from the fact that the Airport pass already issued can be withdrawn without assigning any reason in public interest. Further, the right to refuse to issue the pass is also reserved by the bureau itself. Further the background check of the handling agency can be done by the BCAS through I.B. (Intelligence Bureau) and Local police. The details of the employees and also of Board of Directors and persons in Management have to be forwarded so that the antecedents are verified. It is not that verification of the antecedents is a one time exercise because any adverse information from the sources referred to above can lead to the company not being allowed to work at the Airport and liable to be removed therefrom.” 13. The purpose of referring to the same is that ground handling has its own signification in the realm of security. The security measure in ground handling activity can never be marginalized. In the said case, the Division Bench also dealt with the concept of providing the gist of allegations and, in that regard, expressed the view as follows: “28. Even in law, the order of the Division Bench could not be construed as a direction to disclose the contents of the report or disclose the remarks of the - 12 - Security Agency, which have been forwarded to the Bureau. Principles of natural justice cannot be put or embodied in a straight jacket formulae. There is no prescribed formulae and which principles of natural justice would apply depends upon the facts and circumstances of each case. When it comes to facts of this case, it is apparent to us that if any disclosure is sought of such classified and secret information, then, the whole purpose of forwarding it would be frustrated and defeated. In a given case, it can endanger the life of the Reporting or Investigating Officer. More so, once it is not possible even for this Court to scrutinize the report of the Intelligence Agencies or sit in judgement over their contents, as if it is an Appellate Authority, then, the petitioner cannot insist upon the copy of the report being furnished or its contents disclosed otherwise. Even the limited request to furnish gist of the conclusions is not and cannot be said to be a necessary ingredient of the principles of natural justice, in this case. It is well settled that it is not possible to lay down any general principle on the question as to whether the report of investigating body or of any Inspector appointed by Administrative Officer should be made available to the person concerned in any given case before the Authority takes a decision on that report. The answer to this question must depend on the facts and circumstances of each case. - 13 - We are not impressed by the argument that the petitioner was in any way handicapped because the gist or the conclusions are not disclosed or that they could not effectively participate at the post decisional hearing on account of the same. Correspondence preceding the order impugned in this petition makes it abundantly clear that both sides have understood the order of this Court as not a direction to furnish a copy of the report or gist of the conclusions, therein. It is just a liberty granted to the parties and cannot be construed as a mandate by any means. In this petition, we cannot be called upon to reappraise the matte or reconsider the same. We must read and consider the order as it reads and stands. There is no question of interpreting it.” 14. We may fruitfully take note of the fact that the learned single Judge had taken exception to the fact that the gist was not provided but he perused the report himself and took up the burden on himself to appreciate the same. That being the fact situation, the issue pertaining to non-supply of the gist of allegations pales into insignificance. Be it noted, regard being had to the totality of the circumstances, we had also directed the allegations to be made available to us and accordingly, the learned counsel for the appellants had brought - 14 - it before us in a sealed cover. With the consent of the learned counsel for the parties, we have perused the same. On a scrutiny of the said report, we are convinced that he has influenced and has boasted of his connections and his clout to get the contract awarded in his favour. It is evident from the report that the ground handling officer of the Airlines was abducted and it has been confidentially told to the authorities that the said person had been getting threatening calls to withdraw from the contract work and there was reason to suspect the involvement of the appellant in the same. That apart, he has unholy connection with certain persons who are in-charge of law and order and he himself carries weapons. On the basis of the aforesaid, the authorities have found that his activities are prejudicial to the peaceful functioning of the Airport at Patna. 15. Before adverting to the recommendation contained in the report, regard being had to the concept of security, we think it apt to refer to the decision in A.K. Sharma & Anr. V. Director General of Civil Aviation, Delhi & Anr. (supra) wherein a Division Bench of the Delhi High Court has held as follows: “32. The law is now very well settled that even in - 15 - respect of an administrative action which affects the civil rights of a citizen (as in the present case and as held by the learned Single Judge) the principles of natural justice would automatically come into play unless they are specifically excluded or excluded by necessary implication. (See for example Smt. Maneka Gandhi v. union of India), AIR 1978 SC 597. Mohinder Singh Gill v. The Chief Election Commissioner, AIR 1978 SC 851, Swadeshi Cotton Mills v. Union of India, (1981) 1 664 : (AIR 1981 SC 818), Liberty Oil Mills v. Union of India, AIR 1984 SC 1271 and Raghunath Thakur v. State of Bihar (1988) 4 JI 728 : (AIR 1989 SC 620). Rule 19(3)(c) of the Rules does not specifically, or even by implication, exclude the principles of natural justice. This being so, the least that the Respondents could have done was to issue a show cause notice to the Appellants indicating the facts on the basis of which it was proposed to cancel all their permits which were valid till 19th April, 2002. Admittedly, no show cause notice was issued to the Appellants. In fact, the Appellants were not even given a hint of the possibility of a cancellation of the permits. For this reason, we hold that the order of cancellation dated 5th Sept. 2001 was illegal, and it was rightly held by the learned Single Judge as being “not sustainable in law.” 33. Even otherwise, the Respondents have shown - 16 - absolutely no urgency or any emergency having arisen for cancelling the permits granted to the Appellant Company. We say this because the respondents twice renewed the permits granted to the Appellant Company after three of its directors, namely J.K. Singh, Rita Singh and Natasha Singh had resigned with effect from 3rd April, 2002. The Appellant Company had proposedto induct Gautam Sinha, Dhruv Singh and Shipra Singh as its directors (letter dated 25th April, 2000) and Gurinderjit Singh and G.S. Nagi (letters dated 5th and 13th Feb. 2001). These persons had not been granted clearance from the security point of view by the respondents. Nevertheless, the respondents extended the validity of the permits granted to the Appellant Company first for a period of one year from 20th April, 2000 to 19th April, 2001 and then again from 20th April, 2001 to 19th April, 2002. 34. Whey the extension was twice granted in the absence of any security clearance has not been explained by the respondents. It appears that the grant of security clearance is a red herring or a necessary but empty formality rather than a sine qua non for the renewal of a permit, otherwise two successive renewals would not have been granted to the Appellants. It is one thing for the Respondents to say that they are concerned about public safety and national security and another thing to sue these phrases as a stick and a club to bring to heel those - 17 - over whom they exercise administrative suzerainty. 35. Insofar as the question of a post decisional hearing is concerned, the learned Single Judge analysed the case law and rightly concluded that the question of a post-decisional hearing is relevant only if an action is taken on an emergency basis and in extraordinary circumstances where the action brooks no delay. In the present case, we have already held that no emergent situation was brought out by the Respondents inasmuch as power under Section 6 of the Act was not exercised by issuing a notification in the Official Gazette. Therefore, the question of a post-decisional hearing did not arise. The result is that the order passed by the Respondents on 19th Feb., 2002 (which is consequential in nature) cannot have any affect whatsoever.” 16. We have reproduced in extenso from the aforesaid decision as Mr. Giri, learned Senior Counsel, submitted that the same holds the field and deserves to be followed by this Court. The said decision deals with two aspects, namely, cancellation of the permit and cancellation of the ground security clearance. As far as the permit is concerned, the Bench had held that as the power under Section 6 of the Act was not exercised by issuing a notification in the Official - 18 - Gazette, the question of post-decisional hearing did not arise. Be it noted, the cancellation of a permit is to be notified in the Official Gazette. The Bench has further taken note of the fact that the extension was granted in the absence of any security clearance and on that basis, it has been observed that the grant of security clearance is a red herring or a necessary but empty formality rather than a sine qua non for the renewal of a permit, otherwise two successive renewals would not have been granted to the appellants. In the said factual backdrop, the action of the respondents was criticized and the order was annulled. 17. In our considered opinion, the said case was on a different footing whereas the view taken by the Division Bench of the Bombay High Court is more akin to the case at hand and, hence, we are inclined to agree with the view taken in Akbar Travels of India (Pvt.) Ltd. (supra). 18. As the fulcrum of the matter pertains to the applicability of the principles of natural justice, we may refer with profit to the decision in State Bank of Patiala & Ors. V. S.K. Sharma, (1996) 3 SCC 364, wherein, while dealing with the principles of application of natural justice, the Apex Court - 19 - has held as follows: “There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.” 19. In Malak Singh, etc. v. State of Punjab & Haryana & Ors., AIR 1981 SC 760, the Apex Court while dealing with the applicability of principles of natural justice as regards making an entry in the surveillance register referred to the decision in Re. K (Infants), 1965 AC 201 at P. 238, wherein it has been held as follows: “But a principle of judicial inquiry whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed; otherwise it would become the master instead of one servant of justice.” 20. After