Union Of India & Anr vs M.M.Sharma

4. In order to appreciate the contentions raised by the parties hereto some basic facts leading to filing of the aforesaid writ petition in the High Court must be stated.

5. The respondent was posted as First Secretary w.e.f.

02.07.2007 to 03.05.2008 in the Embassy of India, Beijing, China. While on special assignment, the respondent came under adverse notice and was found to be involved in an unauthorized and undesirable liaison with foreign nationals of the host country. The conduct of the respondent was enquired into by the Intelligence Bureau (IB). The Director, upon completion of the said inquiry forwarded a detailed report including findings of the Inquiry Officer. The aforesaid report was considered and it was felt that in view of the seriousness of the case and the adverse implications on the security of the State, it would not be expedient to hold the inquiry due to the following reasons: -

7. The respondent challenged the aforesaid order by filing an Original Application before the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as `the Page 3 of 18 Tribunal') which was registered as OA No. 176 of 2009. In the said Original Application contentions raised inter alia were that the order dated 22.12.2008 passed in exercise of power under Clause (c) of Second Proviso to Article 311(2) of the Constitution of India should be set aside. The aforesaid application was heard and the Tribunal passed an order on 10.12.2009 disposing of the said Original Application by holding that the order does not reveal that there has been application of mind with regard to the nature of punishment to be awarded to the respondent. The Tribunal directed the Government to re-consider whether the aforesaid penalty awarded to the respondent could be substituted by any other punishment.

17. The aforesaid order passed by the Tribunal in the due course has become final and binding as no challenge was made as against the aforesaid observation by any of the parties before any higher forum. The Tribunal, however, by the aforesaid order issued a direction to the Government to consider as to whether the penalty could be substituted by issuing a lesser punishment.

15. It should also be pointed out at this stage that clause (b) of the second proviso to Article 311 (2) of the Constitution of India mandates that in case the disciplinary authority feels and decides that it is not reasonably practical to hold an inquiry against the delinquent officer the reasons for such satisfaction must be recorded in writing before an action is taken. Clause

18. In terms of the aforesaid order the competent authority reconsidered the matter and maintained the order of punishment awarded to the respondent holding that it is not possible either to substitute the penalty of the respondent from Page 12 of 18 dismissal to reduction in rank or to grant him any pensionary benefit. The said order therefore indicates that the direction of the Tribunal was duly complied with and an effective and conscious decision was taken by the competent authority to maintain the penalty of dismissal.

23. In our considered opinion, in the present case, charges against the delinquent officer being very serious and also in view of the fact that the respondent was working in a very sensitive post, it cannot be said to be a case of disproportionate punishment to the offence alleged. The reasons recorded in the official file against the person for dismissing him from service need not be incorporated in the impugned order passed.

25. If in terms of the mandate of the Constitution, the communication of the charge and holding of an enquiry could Page 17 of 18 be dispensed with, in view of the interest involving security of the State, there is equally for the same reasons no necessity of communicating the reasons for arriving at the satisfaction as to why the extreme penalty of dismissal is imposed on the delinquent officer. The High Court was, therefore, not justified in passing the impugned order.

26. For the aforesaid reasons, we hold that the order and direction passed by the High Court cannot be sustained.

Consequently, we set aside the same and restore the order dated 04.08.2010 passed by the Central Administrative Tribunal, Principle Bench at New Delhi in OA No. 2440 of 2010.

27. The present appeal is accordingly allowed to the aforesaid extent leaving the parties to bear their own costs.

.............................................J [Dr. Mukundakam Sharma] .............................................J [Anil R. Dave] New Delhi, March 30, 2011.