Union Of India & Anr. vs A.C.Gangadharan
2013 Latest Caselaw 1358 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                          Date of Decision: March 20, 2013

+                           W.P.(C) 6778/2011
       UNION OF INDIA & ANR.                           ....Petitioners
                Represented by: Mr.M.K.Bhardwaj, Mr.Sunil Kumar and
                Mr.Rajiv Ranjan Mishra, Advocates.
                                    versus
       A.C.GANGADHARAN                                .... Respondent
                Represented by: Mr.R.V.Sinha, Mr.R.N.Singh and
                Mr.A.S.Singh, Advocates.

                            W.P.(C) 7980/2011
       A.C.GANGADHARAN                                 .... Petitioner
                Represented by: Mr.R.V.Sinha, Mr.R.N.Singh and
                Mr.A.S.Singh, Advocates.

                                    versus
       UNION OF INDIA & ORS.                         ....Respondents
                Represented by: Mr.M.K.Bhardwaj, Mr.Sunil Kumar and
                Mr.Rajiv Ranjan Mishra, Advocates.
       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE PRATIBHA RANI

PRADEEP NANDRAJOG, J. (Oral)

1. On March 06, 2013, we had passed the following order:-

"1. Learned counsel for the Union of India would obtain instructions from the competent authority whether a quietus can be put to the matter by converting the penalty imposed upon A.C.Gangadharan to one of compulsory retirement. We would like to highlight that the Union of India is not correctly understanding the opinion of the Supreme Court in the matter pertaining to co-delinquent M.M.Sharma. While dispensing with the inquiry and dismissing M.M.Sharma from service, power exercised

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

2. The said provision simply states that 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, dispensing with the inquiry, penalty can be imposed. Order passed against Shri M.M.Sharma was with respect to the power conferred under Article 311(2)(c). The order clearly records that the President was satisfied that in the interest of the security of the State, it was not expedient to hold such inquiry.

3. As regards A.C.Gangadharan, the order dispensing with the inquiry has been passed exercising power under Article 311(2)(b) of the Constitution for the reason in the order it is written that it is not reasonably practicable to hold such inquiry. But, requirement of the law to record reasons is to why it is not reasonably practicable to hold the inquiry are prima facie missing. The department appears to be under a mistaken notion that no reasons need to be recorded as to why power is being exercised either under sub-clause (b) or sub-clause (c); ignoring the fact that the language of sub-clause (c) is different than that of sub-clause (b). The latter does not require reasons to be recorded as to why opinion was formed that in the interest of the security of the State, it is not expedient to hold such inquiry. But, clause (b) requires reasons to be recorded in writing for the opinion formed, that it is not reasonably practicable to hold such inquiry.

4. An officer not below the rank of Joint Secretary from the concerned Ministry would be present in Court on the next date of hearing who would take legal opinion on the subject and the person who would render the legal opinion would take note of the order dated 21.04.2010 which in paragraph-1 only records the facts constituting the misdemeanour. In paragraph-2, it has been noted that the President has the power to dismiss or remove a government servant from service if the President is satisfied that for the reasons recorded in writing, it is not

reasonably practicable to hold an inquiry. Paragraph-3 imposes the penalty for the reasons mentioned in paragraph-1.

5. We do not prima facie find any reasons recorded in writing pertaining to why it was not reasonably practicable to hold the inquiry.

6. Re-notify on 20.03.2013.

7. Dasti to learned counsel for the Union of India under the signatures of the Court Master today itself."

2. Learned counsel for the Union of India states that bringing the said order to the notice of the Ministry of Law and Justice, Department of Legal Affairs, an opinion was sought from the said department and the opinion rendered by the Deputy Legal Advisor in the Ministry of Law and Justice is that the view expressed by this Court in the order dated March 06, 2013 is correct. Indeed, a taint has been found by the Deputy Legal Advisor in the order dismissing A.C.Gangadharan from service.

3. Indeed, it has to be so, for the reason there is no scope for even arguing a point to the contrary, inasmuch as Article 311(2)(b) and (c) reads as under:-

"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.-

           (1)      .....
           (2)      ....
              (a)     ....

(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.

(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."

4. Suffice would it be to state that where the President or a Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold an inquiry into a misdemeanour or a wrong committed by a Government servant, reason for the satisfaction need not be recorded in the order and services can be terminated. But, where the decision taken is that the inquiry is being dispensed with because it is not reasonably practicable to hold such inquiry, reason thereof has to be recorded; as contemplated by clause (b). The reason as to why, a reason need not be recorded, while exercising power under clause (c) is that the very recording of the reason as to why in the interest of State it is not expedient to hold an inquiry may jeopardize the very security of the State for the reason the recording of the reason itself may bring into public domain something which is not in the interest of the security of the State. But, this would not be applicable to clause (b) because of the reason said clause has nothing to do with the security of the State, but empowers a decision to be taken to penalize a Government servant without an inquiry if it is not reasonably practicable to hold such an inquiry.

5. With the aforesaid backdrop of the legal position, which is not disputed to by learned counsel for the Union of India, facts to be noted are that one M.M.Sharma, a Director level officer in RAW, while working as First Secretary in the Indian High Commission at China got entangled with one Ms.Maggie, a Chinese national; and a beautiful woman as we are given to understand. A.C.Gangadharan was also working in the Indian High

Commission at China as a Private Secretary to M.M.Sharma.

6. It is the case of the Union of India that Ms.Maggie first befriended A.C.Gangadharan, who introduced her to his boss M.M.Sharma. It is alleged by the Union of India that under the garb of Ms.Maggie teaching Chinese to M.M.Sharma, the two started meeting. The same was a facade. It was actually a physical relationship developed between the two. Alleging that M.M.Sharma got entrapped in a honey-trap and compromised the security of the State, exercising power under Clause (c), dispensing with an inquiry, M.M.Sharma was dismissed from service. The decision to penalize M.M.Sharma without holding an inquiry is logical and reasonable for the reason he was a Director level officer in RAW and was posted as the First Secretary in the India High Commission at China and any inquiry into his public dealings would bring into public gaze the working of RAW. But he may have had a point on the quantum of penalty inasmuch as the misdemeanour was the only one committed by him in a career spanning nearly 30 years.

7. He challenged the penalty of dismissal from service before the Central Administrative Tribunal, which upheld the exercise of power to penalize him without an inquiry. But on the subject of proportionality of the penalty, remanded the matter to the Competent Authority to consider the penalty afresh keeping in view his past service.

8. Penalty being retained when a fresh order was passed, M.M.Sharma re-approached the Tribunal laying a challenge to the penalty alleging that the order did not evidence an application of mind. The second stage challenge by M.M.Sharma failed.

9. He filed a writ petition in this Court which was allowed by a Division Bench on March 30, 2011, holding that since the order re-affirming

the penalty did not reflect an application of mind, in that, the long length of service rendered by M.M.Sharma and the misdemeanour alleged being the only misdemeanour, were not apparently taken note of in the order. The matter was remanded once again with a direction that a reasoned decision be taken. The said decision of the Delhi High Court was challenged by the Union of India before the Supreme Court with success. The decision of the Supreme Court is reported as 2011 (VI) AD (SC) 607 Union of India & Anr. v. M.M.Sharma. The penalty was upheld.

10. The view taken by the Supreme Court is that since the matter was remanded to the Disciplinary Authority by the Tribunal to specifically consider the penalty levied with reference to the quantum thereof, at the second stage, the decision taken would be presumed to be with an application of mind. Holding so, a quietus came to the dispute fought by M.M.Sharma with Union of India.

11. As regards A.C.Gangadharan, challenge by him to the order dated April 21, 2010, dismissing him from service, exercising power under Article 311(2)(b) has been dealt with by the Tribunal holding that in view of the decision pertaining to M.M.Sharma, decision to punish A.C.Gangadharan by dispensing with an inquiry cannot be faulted. However, on the subject of quantum of penalty, the matter has been remanded to the Disciplinary Authority for a decision afresh.

12. Challenging the impugned decision, by way of WP(C) No.6778/2011, contention urged by Union of India is that the matter stands settled against A.C.Gangadharan in view of the decision of the Supreme Court in M.M.Sharma‟s case (supra). The contention is ex-facie wrong, for the reason, as noted above against M.M.Sharma power was exercised under Article 311(2)(c) of the Constitution of India and against A.C.Gangadharan,

power exercised is under Article 311(2)(b) of the Constitution of India. Admittedly, in the order which is a composite order, dispensing with the inquiry and levying penalty, no reasons have been recorded as to why the inquiry is being dispensed with.

13. As regards A.C.Gangadharan, challenge by him in WP(C) No.7980/2011 is premised on the plea that the Tribunal wrongly equated him with M.M.Sharma, ignoring that a different power was exercised qua him vis-a-vis the power exercised against M.M.Sharma.

14. Indeed, WP(C) No.7980/2011 filed by A.C.Gangadharan has to be allowed for the simple reason the composite order dispensing with inquiry and simultaneously levying penalty upon him does not indicate the reasons as to why the inquiry is being dispensed with.

15. We are now faced with the question : As to what should be the final relief.

16. Learned counsel for A.C.Gangadharan states that A.C.Gangadharan had joined government service in the year 1984 in the Ministry of Agriculture as an LDC and on clearing the Grade „C‟ Stenographers‟ examination conducted by UPSC, giving a technical resignation, he joined service under the Government of India as a Stenographer entitling him to a pensionable service reckoned from the date he joined service as an LDC. Learned counsel for A.C.Gangadharan states that if penalty of compulsory retirement is levied with pensionery benefits as contemplated by Rule 40 of the CCS (Pension) Rules 1972, A.C.Gangadharan would not litigate any further.

17. The logical corollary of setting aside the order dated April 21, 2010, would be to either allow the Union of India to pass a fresh order containing reasons and leaving it to A.C.Gangadharan to challenge the

reasons while dispensing with the inquiry or permitting the Union of India to charge-sheet him. But, A.C.Gangadharan would have to be reinstated in service. We can see futuristic litigation.

18. To bring a quietus, we dispose of the writ petitions as follows:-

(i) WP(C) No.6778/2011 filed by Union of India is dismissed.

(ii) WP(C) No.7980/2011 filed by A.C.Gangadharan stands disposed of substituting the penalty imposed upon him vide order dated April 21, 2010 to one of compulsory retirement with a direction that he would be entitled to compulsory retirement pension as also gratuity as per Rule 40 of the CCS (Pension) Rules 1972. We leave it to the discretion of the authority to determine the rate, as envisaged by Rule 40, at which he would be paid compassionate pension. We note that as per the Rule the compassionate pension envisaged is between 2/3rd to 100% of the compassionate pension. Similarly, we hold him entitled to receive gratuity, with the rate to be determined by the Competent Authority.

19. No costs.

CM No.13658/2011 in WP(C) 6778/2011 Since the writ petition, being WP(C) 6778/2011, stands disposed of, instant application seeking ad-interim relief till disposal of the said writ petition stands disposed of as infructuous.

(PRADEEP NANDRAJOG) JUDGE

(PRATIBHA RANI) JUDGE MARCH 20, 2013//dk//