Sh.K.N.Pandey vs Union Of India
2009 Latest Caselaw 4157 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P. (C.) No.8337/2008

%                        Date of Decision: 14.10.2009

Sh.K.N.Pandey                                              .... Petitioner

                         Through Dr.L.S.Chaudhary, Advocate.

                                   Versus

Union of India                                           .... Respondent

                         Through Nemo.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI

1.     Whether reporters of Local papers may be              YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                  NO
3.     Whether the judgment should be reported in              NO
       the Digest?


ANIL KUMAR, J.

*

The petitioner has impugned the order dated 25th August, 2008

passed in O.A No.1589/2007 titled K.N.Pandey v. Union of India

dismissing the original application challenging the orders dated 18th

August, 1992 and 31st March, 2006 whereby Article 310(1) of the

Constitution of India and Rule 19(iii) of CCS (CCA) Rules, 1965 were

invoked to dispense with the holding of an inquiry against the petitioner

and to dismiss him from service.

The petitioner was working as a Draftsman (L) in Naval

Headquarters and was implicated in a criminal case under Section

3/5/9 of the Official Secrets Act along with nine other persons. The

petitioner made a confessional disclosure statement on 8th September,

1990 admitting that in lieu of money he had been passing classified

defence documents/designs to one Anand Brothers and thereafter to

one Mohd.Waris from Pakistan High Commission.

As per the instructions for dealing with Government servants

engaged in subversive activities issued by Department of Personnel and

Training (DoP&T) on 1st August, 1985 and also the instructions

contained in an amended O.M dated 26th July, 1980, a note was

prepared detailing the conduct of the individual persons and the

petitioner and the material against him and other persons involved in

subversive activities. A committee of advisors on consideration of

material recommended dispensation with the inquiry against the

petitioner and his dismissal by invoking the doctrine of pleasure under

Article 311 (2) (c) of the Constitution of India. The recommendation was

placed before the Prime Minister and thereafter before the President

who after satisfying himself had passed the order of dismissal and had

held that it will not be expedient to hold an enquiry against the

petitioner. The petitioner was acquitted of all charges in the related

sessions case No.14/1996 vide judgment delivered on 5th July, 2001 by

giving to him the benefit of doubt. After preferring an appeal for

reconsideration of his dismissal, the petitioner filed a writ petition being

W.P(C) No.978/1999 against his order of dismissal which was disposed

of by order dated 25th January, 2006. The dismissal of the petitioner

was upheld. However, an observation was made to the effect that the

respondents should re-examine the entire case by considering the

materials relied upon in 1992 to dispense with the inquiry and the

factors which led to the petitioner's acquittal in the criminal case. The

Court also directed reconsideration of the issue whether the petitioner's

service should be restored and whether an enquiry should be held

against the petitioner.

The case of the petitioner was reconsidered and the order dated

31st March, 2006 was passed upholding the inquiry against the

petitioner as well as upholding his dismissal from service. The petitioner

assailed the order dated 31st March, 2006 in a review petition

No.284/2006 filed before this Court in W.P(C) No.978/1999 which was

disposed of by order dated 11th May, 2007 granting liberty to the

petitioner to avail the remedies available to him in accordance with law.

Consequent thereto the petition was filed the original application before

the Tribunal which has been dismissed by order dated 25th August,

2008 which is impugned before us.

The petitioner has assailed the dispensation of inquiry against

him and his dismissal from service by contending that there was

enough time lag between the acts complained of and the dismissal order

passed by the respondents and therefore inquiry ought not to have

dispensed with. The petitioner has also contended that the President

himself had to be satisfied as to non expediency to hold the enquiry and

it could not be delegated to any other person or authority. It is

contended that the satisfaction arrived at in the case of the petitioner, is

not that of the President but that of the conveying authority or of the

Prime Minister. The order dispensing with the holding of the enquiry

and dismissal from service is also assailed on the ground that it has

been passed mechanically by filing a cyclostyled proforma.

The Tribunal has considered the pleas and contentions of the

petitioner, especially the plea that the personal satisfaction has to be of

the President to arrive at the conclusion for dispensing with the inquiry.

Reliance has been placed on a Constitution bench judgment of the

Supreme Court in 1985 (3) SCC 398, Union of India v. Tulsiram Patel

holding that Clause (b) of the second proviso to Article 311 makes it

clear that when the power to dispense with an inquiry is conferred by it

upon the authority empowered to dismiss, remove or reduce in rank a

Government servant, the satisfaction to be arrived at is on the advice of

the Council of Ministers and not a personal satisfaction of the

President. Reliance has also been placed on instructions issued by the

DOP&T on 26.07.1980 as amended on 01.05.1975 stipulating that

whenever the Committee of Advisors recommends dismissal under

Article 311 (2) (c) of the Constitution of India, the recommendation

should be submitted to the Prime Minister.

Regarding the scope of judicial review of the decision to dispense

with the holding of the enquiry by the President, reliance has been

placed on S.R.Bommai Vs Union of India, (1994) 3 SCC 1 and A.K.Kaul

Vs UOI, (1995) 4 SCC 73 and UOI & Anr v. Balbir Sigh & Anr, (1975) 5

SCC 216 and it has been held that judicial review is of the decision

making process and not of the decision itself. Consequently the plea of

the petitioner that the enquiry should have been conducted because

there was sufficient time between the acts complained of and when the

decision to dispense with the enquiry was taken, cannot be accepted.

The enquiry is to be dispensed with on the satisfaction arrived at that it

is not expedient to hold an enquiry based on circumstances and the

material before the concerned authorities and not on the basis of

availability of sufficient time. The enquiry is dispensed with considering

that certain matters are not to be made public including the source of

information and because it is not considered expedient in the interest of

security, and not because sufficient time is not available for conducting

the enquiry. The finding of the Tribunal cannot be faulted on this

ground in the facts and circumstances.

The plea that the enquiry should have been conducted as there

was sufficient time till the order of dismissal was passed can also be not

allowed to be raised by the petitioner, as the said plea was not taken up

before the Tribunal. Similarly, the plea that the order has been passed

mechanically by filling a cyclostyled proforma has not been raised

before the Tribunal nor has been taken in the grounds in the writ

petition. It has not been contended that the plea was taken before the

Tribunal and has not been considered by the Tribunal. Therefore, these

pleas cannot be considered in the facts and circumstances for assailing

the order of the Tribunal dated 25th August, 2008.

It is also apparent that the Tribunal has considered the record

including the note put up before the Council of Ministers and the

Advisory Committee, confessional statement of the petitioner and other

circumstances and all the pleas and contentions raised before it by the

Petitioner and there does not appear to be any irregularity and illegality

in order of the Tribunal. The Petitioner has failed to point out any such

illegalities in the order impugned before us which will call for

interference by this Court in exercise of its jurisdiction under Article

226 of the Constitution of India. The writ petition is, therefore, without

any merit and it is dismissed.

ANIL KUMAR, J.

OCTOBER 14, 2009                                       VIPIN SANGHI, J.
'k'