UNION OF INDIA AND ANR.versusM.M. SHARMA

                         [2011] 6 S.C.R. 18


A                   UNION OF INDIA AND ANR.
                                 v.
                           M.M. SHARMA
                  (Civil Appeal No. 2797 of 2011)

B                         MARCH 30, 2011
               [DR. MUKUNDAKAM SHARMA AND
                      ANIL R. DAVE, JJ.]

          Service Law - Miscon,duct - Dismissal - Respondent,
C   First Secretary in Indian Embassy at China, was allegedly
    found involved in unauthorized and undesirable liaison with
    foreign nationals of the host country - Appellant-authority, by
    exercising powers under clause(c) of the second proviso to
    Article 311 (2) of the Constitution, dispensed with enquiry into
D   the conduct of the respondent and dismissed him from service
    - Respondent challenged the order - Tribunal directed re-
    consideration of the punishment - Appellant-authority
    maintained the dismissal order - Respondent again filed
    application before the Tribunal, which was dismissed -
E   Respondent filed writ petition - High Court set aside the
    second order of appellant-authority on ground that it was not
    a reasoned order and directed the appellants to pass fresh
    order with reasons for imposing penalty of dismissal -
    Justification of - Held: Not justified - The reasons contained
F   in the records establish that in the facts of this case holding
    of an enquiry was rightly dispensed with, in the interest of
    security of the country - A very high level committee, on basis
    of materials available on record, prima facie came to the
    conclusion that action could be taken for dismissal of
G   respondent - The charges against the respondent 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
    power to be exercised under clauses (a), (b) and (c) of the
H                                 18
    UNION OF INDIA AND ANR. v. M.M. SHARMA                     19

Second proviso to Article 311 (2), being special and                 A
extraordinary powers conferred by the Constitution; there was
no obligation on the part of the disciplinary authority to
communicate the reasons for imposing the penalty of
dismissal and not any other penalty - If in terms of the
mandate of the Constitution, the communication of the charge         B
and holding of an enquiry could 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 - Order            c
passed by the High Court is therefore set aside and the order
passed by the Tribunal is restored - Constitution of India,
1950 - Art.311(2), sub-clause(c) of second proviso.

   Constitution of India, 1950 - Article 311 - Exercise of
power under - Ambit and scope of - Discussed.                        D
       Doctrines - Doctrine of 'pleasure" - Recognition of, under
th.e. Indian Constitution by way of Article 310 - Held: Under
the aforesaid provision, all civil posts under the Government
are held at the pleasure of the Government under which they          E
are held and are terminable at its will - But the same is
subject to other provisions of the Constit.ution which include
the restrictions imposed by Article 310(2) and Article 311(1)
and Article 311 (2).

     Respondent, First Secretary in Indian Embassy at                F
 China, was allegedly found involved in unauthorized and
 undesirable liaison with foreign nationals of the host
 country. The appellant-authority, by exercising powers
 under clause(c) of the second proviso to Article 311(2) of
 the Constitution, dispensed with enquiry into the                   G
 conduct of the respondent and dismissed him from
 service. Respondent challenged the order before the
·Tribunal. The Tribunal directed re-consideration as to
 whether the penalty of dismissal could be substituted by
 any other lesser punishment. The appellant-authority                H
    20       SUPREME COURT, REPORTS           [2011) 6 S.C.R.


A maintained the dismissal order. Respondent again filed
  application before the Tribunal. The Tribunal dismissed
  the application. Respondent filed writ petition. The High
  Court set aside the second order of appellant-authority
  on ground that it was not a reasoned order and directed
B the appellants to pass order afresh with reasons for
  imposing penalty of dismissal from service. Hence the
  present appeal.

         Allowing the appeal, the Court

C      HELD:1. Article 311 of the Constitution provides for
  protection to public servant from punitive action being
  taken against them by an authority subordinate to one
  who appointed him, or without holding an inquiry in
  accordance with law. Exceptions in Article 311 are
D contained in second proviso in the nature of clauses (a),
  (b) & (c) which provide that the said Article shall not apply
  to employees who have been punished for conviction in
  a criminal case or where inquiry is not practicable to be
  held for reasons to be recorded in writing or where the
E President or Governor as the case may be is satisfied that
  such an order is required to be passed without holding
  an enquiry in the interest of security of the State. [Para
  13] [31-B-C]

F      2. In India, the doctrine of 'pleasure" is recognized
  by way of Article 310 of the Constitution. Under the
  aforesaid provision, all civil posts under the Government
  are held at the pleasure of the Government under which
  they are held and are terminable at its will. But the same
  Is subject to other provisions of the Constitution which
G include the restrictions imposed by Article 310 (2) and
  Article 311 (1) and Article 311 (2). Therefore, under the
  Indian constitution dismissal of civil servants must
  comply with the procedure laid down in Article 311, and
  Article 310(1) cannot be Invoked independently with the
H object of justifying a contravention of Article 311(2). There
    UNION OF INDIA AND ANR. v. M.M. SHARMA            21

is an exception provided by way of incorporation of A
Article 311 (2) with sub-clauses (a), (b) and (c). No such
Inquiry is required to be conducted for the purposes of
dismissal, removal or reduction in rank of persons when
the same relates to dismissal on the ground of conviction
or where It is not practicable to hold an inquiry for the B
reasons to be recorded in writing by that authority
empowered to dismiss or remove a person or reduce him
In rank or where it is not possible to hold an enquiry in
the interest of the security of the State. These three
exceptions are recognized for dispensing with an inquiry, C
which is required to be conducted under Article 311 of
the Constitution of India when the authority takes a
decision for dismissal or removal or reduction in rank in
writing. In other words, although there Is a pleasure
doctrine, however, the same cannot be said to be
absolute and the same is subject to the conditions that D
when a government servant is to be dismissed or
removed from service or he is reduced in rank a
departmental inquiry is required to be conducted to
enquire into his misconduct and only after holding such
an inquiry and in the course of such inquiry if he is found E
guilty then only a person can be removed or dismissed
from service or reduced in rank. However, such
constitutional provision as set out under Article 311 of the
Constitution of India could also be dispensed with under
the exceptions provided in Article 311 (2) of the F
constitution where clause (a) relates to a case where
upon a c'onviction of a person by a criminal court on
certain charges he could be dismissed qr removed from
service or reduced in rank without holding an inquiry.
Similarly, under clause (c) an inquiry to be held against G
the government employee could be dispensed with if it
is not possible to hold such an inquiry in the interest of
the security of the State. Sub-clause (b) on the other hand
provides that such an inquiry could be dispensed with
by the concerned authority, after recording reasons, for H
    22       SUPREME COURT REPORTS             [2011] 6 S.C.R.


A which it is not practicable to hold an inquiry. The
  aforesaid power is an absolute power of the disciplinary
  authority who after following the procedure laid down
  therein could resort to such extra ordinary power
  provided It follows the pre-conditions laid down therein
B meaningfully and effectively. [Para 14) [31-0-H; 32-A-G]

         3. 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
C   delinquent officer the reasons for such satisfaction must
    be recorded in writing before an action is taken. Clause
    (c) of the second proviso to Article 311 (2) on the other
    hand does not specifically prescribe for recording of such
    reasons for the satisfaction but at the same time there
D   must be records to indicate that there are sufficient and
    cogent reasons for dispensing with the enquiry in the
    interest of the security of the State. Unless and until such
    satisfaction, based on reasonable and cogent grounds
    is recorded it would not be possible for the court or the
E   Tribunal, where such legality of an order is challenged,
    to ascertain as to whether such an order passed in the
    interest of security of State is based on reasons and is
    not arbitrary. If and when such an order is challenged in
    the court of law the competent authority would have to
F   satisfy the court that the competent authority has
    sufficient materials on record to dispense with the
    enquiry in the interest of the security of the State. [Para
    15) (32-H; 33-A-0]

      4. In the present case, even in the first order passed
G by the Tribunal it was clearly recorded that it could be
  held from the records, as available, that there essentially
  was no arbitrariness in the approach of the Government
  of India while dealing with an officer who had by his
  conduct showed that he was not reliable for holding
H
    UNION OF INDIA AND ANR. v. M.M. SHARMA                23


sensitive or superior positions and therefore invocation A
of power under Article 311(2)(c) of the Constitution of
 India also cannot be faulted because of the sensitive
 nature of the Issues. 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 B
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. In terms of the aforesaid order the C
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 dismissal
to reduction in rank or to grant him any pensionary o
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.
There are credible and substantial materials on record in E
terms of clause (c) to second proviso to Article 311(2) of
the Constitution. The aforesaid action of invoking the
extra ordinary provisions like clause (c) to second
proviso to Article 311 (2) was also found to be justified by
the Tribunal in the earlier stage of litigation itself. Despite F
the said fact the High Court held that the second order
passed by the Tribunal not being a speaking order
showing application of mind cannot be upheld and
consequently the High Court passed the impugned order
thereby setting aside the order passed by the Tribunal
with a direction to the appellants to pass a fresh speaking G
order giving reasons for its decision. The reasons
contained in the records establish that in the facts of this
case holding of an enquiry was rightly dispensed with in
the interest of security of the country. The Tribunal had
in the earlier round of litigation upheld the action of the H
    24      SUPREME COURT REPORTS             [2011) 6 S.C.R.


A appellants in dispensing with the enquiry in the interest
  of the security of the State. The said order of the Tribunal
  has also become final and binding. [Paras 16 to 20) (33·
  E-H; 34·A·H; 35·A·B]
B      5. The allegations against the respondent are very
  serious which could jeopardize the sovereignty and
  integrity of India. The records disclose the highly
  objectionable activities and conduct of the respondent
  which Is unbecoming of a responsible Government
C servant The Inquiry Committee took the decision of not
  disclosing the grounds for taking action against the
  delinquent officer under clause (c) of the proviso to Article
  311 (2) of the Constitution because disclosure of the same
  or holding of an inquiry has the potential to jeopardize
  national security and relations with a neighbouring
0 country and such disclosure could lead to gross
  embarrassment to the Government of India. Intelligence
  Bureau has already conducted an Inquiry and findings
  of the inquiry officer were based on the written statement
  of the suspected officer and other officers; analysis of
E phone records; and recovery of photographs from the
  laptop of the respondent. In that context and in view of
  the reasons recorded it was concluded that the allegation
  had far reaching effects and therefore it was decided to
  dispense with holding of any inquiry in the matter and
F also to dismiss him from service. A very high level
  committee considered the entire record and the
  allegations against the respondent and on the basis of
  the materials available on record, the committee prima
  facie came to the conclusion that action could be taken
G for his dismissal under clause (c) to second proviso to
  Article 311 (2) of the Constitution. The aforesaid
  recommendation is available on record and the High
  Court could have called for such record and therefrom
  satisfy Itself that there are sufficient and cogent reasons
H
     UNION OF INDIA AND ANR. v. M.M. SHARMA                25


recorded for taking action under Article 311(2) (c) of the       A
Constitution and also for imposing the penalty for
dispensation of the service of the respondent by way of
dismissal from the service. [Paras 21, 22) [35-C-H; 36-A-
B)
                                                                 B
     6. The 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         C
in the official file against the person for dismissing him
from service need not be incorporated in the impugned
order passed. The High Court while passing the
impugned order was fully and effectively aware of the
reasons as to why the requirement of holding an enquiry
in accordance with law was dispensed with. Being so              0
situated, the High Court could have examined and
scrutinised the original records to ascertain for itself as
to whether the order imposing the penalty of dismissal
of service is justified or not in the light of the allegations
and the reports of the fact finding enquiry. The power to        E
be exercised under clauses (a), (b) and (c) being special
and extraordinary powers conferred by the Constitution,
there was no obligation on the part of the disciplinary
authority to communicate the reasons for imposing the
penalty of dismissal and not any other penalty. For taking       F
action in due discharge of its responsibility for exercising
powers under clause (a} or (b) or (c) it is nowhere
provided that the disciplinary authority must provide the
reasons indicating application of mind for awarding
punishment of dismissal. While no reason for arriving at         G
the satisfaction of the President or the Governor, as the
case may be, to dispense with the enquiry in the interest
of the security of the State is required to be disclosed in
the order, one cannot hold that, in such a situation, ·the
                                                                 H
    26       SUPREME COURT REPORTS               [2011] 6 S.C.R.


A impugned order passed against the respondent should
  mandatorily disclose the reasons for taking action of
  dismissal of his service and not any other penalty. [Paras
  23, 24) (36-C-H; 37-A]

8     7. If in terms of the mandate of the Constitution, the
  communication of the charge and holding of an enquiry
  could 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
C dismissal Is imposed on the delinquent officer. The order
  and direction passed by the High Court Is therefore set
  aside and the order passed by the Tribunal Is restored.
  [Paras 25, 26) [37 -B-D]
D        CIVIL APPELLATE JURISDICTION: Civil Appeal No.
    2797 of 2011.
        From the Judgment & Order dated 27.9.2010 of the High
    Court of Delhi at New Delhi in Writ Petition (C) No. 6525 of
E 2010.
       P.P. Malhotra, ASG, J.S. Attri, Gaurav Sharma, M. Tatia,
    Madhurima Toho, Anil Katiyar for the Appellants

        U.K. Singh, Ranjan Kumar, Geetika Sharma for the
F   Respondent.                  ·

         The Judgment of the Court was delivered by

         DR. MUKUNDAKAM SHARMA, J. 1. Delay condoned.

G        2. Leave granted.

         3. The present appeal is directed against the judgment and
    order dated 27.09.2010 whereby the Delhi High Court partly
    allowed the writ petition filed by the respondent herein by
H
   UNION OF INDIA AND ANR. v. M.M. SHARMA                    27
       [DR. MUKUNDAKAM SHARMA, J.) .

issuing a direction to the appellants to pass a speaking order     A
by giving reasons for imposing the penalty of dismissal from
service in exercise of powers under Article 311(2)(c) of the
Constitution and not any other penalty.

     4. In order to appreciate the contentions raised by the       B
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 C
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 D
including findings of the Inquiry Officer. The aforesaid report was
considered a11d 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: -                                                          E
    (i) The respondent was on special assignment and
    entrusted with responsible duties of external intelligence.
    Any formal inquiry would jeopardize security of India, as it
    would reveal details of intelligence operation in the host     F
    country.

    (ii) For a proper disciplinary inquiry to be conducted,
    witnesses would be required to be examined. In this case
    witnesses can be either foreign nationals or officers
    working under cover in Indian Embassy in China and G
    examination thereof would certainly jeopardize the security
    of the State.

     6. Consequently, the competent authority took a decision
that the services of the respondent should be dispensed with       H
      28       SUPREME COURT REPORTS                 (2011] 6 S.C.R.


  A by exercising powers under Clause (c) of Second Proviso to
    Article 311 (2) of the Constitution of India. Consequent thereto
    an order dated 22.12.2009 was issued intimating and stating
    that the President is satisfied to invoke Clause (c) of Second
    Proviso to Article 311 (2) of the Constitution of India that in the
  B interest of the security of the State it is not expedient to hold
    the inquiry in the case of the respondent. It was also mentioned
    in the said order that the President is also satisfied that on the
    basis of information available the activities of the respondent
    are such as to warrant his dismissal from the service.
  c      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 Tribunal') which was registered as OA No. 176 of 2009. In
    the said Original Application contentions raised inter alia were
  D 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
  E 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
  F punishment.
         8. Pursuant to the aforesaid order passed by the Tribunal
     the matter was placed before the competent authority once
     again and in compliance of the order of the Tribunal an order
I, G was passed by the Cabinet Secretariat, Government of India
     on 03.06.2010, which reads as follows:
           "WHEREAS Shri M.M. Sharma was dismissed from
           service under the provisions of sub-clause (c) of the
           second proviso to clause 2 of Article 311 of the
  H
    UNION OF INDIA AND ANR. v. M.M. SHARMA                 29
        [DR. MUKUNDAKAM SHARMA, J.]
    Constitution vide order No/2/2008-DO.ll (A) 9Pt.1)-3643 A
    dated 22.12.2008:
    AND WHEREAS, Shri M.M. Sharma filed an Original
    Application No. 176/2009 in the Principal Bench of Central
    Administrative Tribunal, New Delhi praying for setting aside B
    and quashing the said order of dismissal; dated
    22.12.2008.                                          •

    AND WHEREAS the Hon'ble Tribunal in their order dated
    10.12.2009 in the said QA No. 176/2009 directed the
    Government to consider whether the penalty of dismissal C
    could be substituted by 'reduction in rank' or the ex-officer
    could be granted any pensionary benefits.
    AND WHEREAS, the Government, in pursuance of
    observations of Hon'ble Tribunal re-considered the case D
    of dismissal of Shri M.M. Sharma.
    NOW, THEREFORE, the President orders that it is not
    possible either to substitute the penalty of Shri M.M.
    Sharma from 'dismissal' to 'reduction in rank' or to grant E
    him any pensionary benefits.
    (BY ORDER AND IN THE NAME OF THE PRESIDENT)
                                           (K.B.S. KATOCH)
           ADDITIONAL SECRETARY TO THE GOVT. OF F
                                          IND/A"

     9. The aforesaid order passed by the President came to
be challenged before the Tribunal by the respondent by filing
an Original Application which was registered as OA No. 2440 G
of 2010. The aforesaid application was taken up for hearing
and the same was disposed of by the Tribunal vide its Judgment
and Order dated 04.08.2010. By the aforesaid Judgment and
Order, the Tribunal dismissed the Original Application holding
that the matter called for no interference in the hands of the H
    30       .SUPREME COURT REPORTS              [2011) 6 S.C.R.


A Tribunal. While coming to the aforesaid conclusion the Tribunal
  hold that invocation of power under Article 311 (2) (c) of the
  Constitution of India cannot be faulted with because of the
  sensitive nature of the issues involved, which have become final
  and binding on the parties. It was also held that only question
B that was required to be decided by the competent authority was
  to re-consider the nature of penalty imposed on the respondent.

       10. Since the Tribunal held the appellants have re-
  considered the question of punishment reiterating that it is not
  possible either to substitute the penalty of the respondent from
C 'dismissal' to 'reduction in rank' or to grant him any pensionary
  benefits, therefore, the same indicates and establishes the
  satisfaction for arriving at the decision of the competent
  authority to maintain the penalty of dismissal.
D      11. The aforesaid order was challenged by the respondent
  before the High Court of Delhi by filing a writ petition in which
  the High Court partly allowed the writ petition holding that the
  order which was passed by the competent authority on
  03.06.2010 was not a reasoned order. The High Court therefore
E issued a direction that the appellants must pass a reasoned
  order showing its application of mind. The High Court set aside
  the order dated 04.08.2010 passed by the Tribunal and directed
  the appellants to give reasons for levying the penalty of
  dismissal from service and pass a fresh order. The aforesaid
F Judgment and Order passed by the High Court is under
  challenge in this appeal on which we heard the learned counsel
  appearing for the parties and also scrutinised the entire
  records.
       12. Within the scheme of the Constitution of India,
G provisions relating to public service may be found in Articles
  309, 310 and 311. It is important to note that these provisions
  (namely Articles 310 and 311) afford protection to public
  servants from penalty in the nature of dismissal, removal, or
  reduction which cannot be imposed without holding a proper
H
    UNION OF INDIAAND ANR. v. M.M. SHARMA                      31
        [DR. MUKUNDAKAM SHARMA, J.]
inquiry or giving a hearing. An explicit articulation of "protection" A
in Article 311 of the Constitution itself gives an impression of
complete 'protection' to the civil servants.
      13. Article 311 provides for protection to public servant
from punitive action being taken against them by an authority
                                                                   8
subordinate to one who appointed him, or without holding an
inquiry in accordance with law. Exceptions in Article 311 are
contained in second proviso in the nature of clauses (a), (b) &
(c) which provide that the said Article shall not apply to
employees who have been punished for conviction in a criminal
case or where inquiry is not practicable to be held for reasons C
to be recorded in writing or where the President or Governor
as the case may be is satisfied that such an order is required
to be passed without holding an enquiry in the interest of
security of the State.
                                                                   D
      14. In order to appreciate the ambit or scope of power to
be exercised under Article 311 of the Constitution of India it is
to be noticed that in India we apply the doctrine of 'pleasure",
which is recognized under our constitution by way of Article 310
of the Constitution of India. Under the aforesaid provision, all E
civil posts under the Government are held at the pleasure of
the Government under which they are held and are terminable
at its will. The aforesaid power is what the doctrine of'pleasure
is, which was recognized in the United Kingdom and also
received the constitutional sanction under our Constitution in F
the form of Article 310 of the Constitution of India. aut in India
the same is subject to other provisions of the Constitution which
include the restrictions imposed by Article 310 (2) and Article
311 (1) and Article 311 (2). Therefore, under the Indian
constitution dismissal of civil servants must comply with the G
procedure laid down in Article 311, and Article 310(1) cannot
be invoked independently with the object of justifying a
contravention of Article 311 (2). There is an exception provided
by way of incorporation of Article 311 (2) with sub-clauses (a),
(b) and (c). No such inquiry is required to be conducted for the H
    32       SUPREME COURT REPORTS                [2011] 6 S.C.R.

A purposes of dismissal, removal or reduction in rank of persons
  when the same relates to dismissal on the ground of conviction
   or where it is not practicable to hold an inquiry for the reasons
  to be recorded in writing by that authority empowered to dismiss
  or remove a person or reduce him in rank or where it is not
B possible to hold an enquiry in the interest of the security of the
  State. These three exceptions are recognized for dispensing
  with an inquiry, which is required to be conducted under Article
  311 of the Constitution of India when the authority takes a
  decision for dismissal or removal or reduction in rank in writing.
c In other words, although there is a pleasure doctrine, however,
  the same cannot be said to be absolute and the same is subject
  to the conditions that when a government servant is to be
  dismissed or removed from service or he is reduced in rank a
  departmental inquiry is required to be conducted to enquire into
0 his misconduct and only after holding such an inquiry and in the
  course of such inquiry if he is found guilty then only a person
  can be removed or dismissed from service or reduced in rank.
  However, such constitutional provision as set out under Article
  311 of the Constitution of India could also be dispensed with
E under the exceptions provided in Article 311 (2) of the
  constitution where clause (a) relates to a case where upon a
  conviction of a person by a criminal court on certain charges
  he could be dismissed or removed from service or reduced in
  rank without holding an inquiry. Similarly, under clause (c) an
  inquiry to be held against the government employee could be
F dispensed with if it is not possible to hold such an inquiry in
  the interest of the security of the State. Sub-clause (b) on the
  other hand provides that such an inquiry could be dispensed
  with by the concerned authority, after recording reasons, for
  which ·it is not practicable to hold an inquiry. The aforesaid
G power is an absolute power of the disciplinary authority who
  after following the procedure laid down therein could resort to
  such extra ordinary power provided it follows the pre-conditions
  laid down therein meaningfully and effectively.
H        15. It should also be pointed out at this stage that clause
     UNION OF INDIA AND ANR. v. M.M. SHARMA                     33
         [DR. MUKUNDAKAM SHARMA, J.]
(b) of the second proviso to Article 311 (2) of the Constitution      A
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
(c) of the second proviso to Article 311 (2) on the other hand        B
does not specifically prescribe for recording of such reasons
for the satisfaction but at the same time there must be records
to indicate that there are sufficient and cogent reasons for
dispensing with the enquiry in the interest of the security of the
State. Unless and until such satisfaction, based on reasonable        c
and cogent grounds is recorded it would not be possible for
the court or the Tribunal, where such legality of an order is
challenged, to ascertain as to whether such an order passed
in the interest of security of State is based on reasons and is
not arbitrary. If and when such an order is challenged in the court   D
of law the competent authority would have to satisfy the court
that the competent authority has sufficient materials on record
to dispense with the enquiry in the interest of the security of the
State.
     16. We have analyzed the facts of the present case and           E
on such analysis, we find that even in the first order passed by
the Tribunal on 10th December, 2009 itself it was clearly
recorded that it could be held from the records, as available,
that there essentially was no arbitrariness in the approach of
the Government of India while dealing with an officer who had         F
by his conduct showed that he was not reliable for holding
sensitive or superior positions and therefore invocation of
power under Article 311 (2)(c) of the Constitution of India also
cannot be faulted because of the sensitive nature of the issues.
                                                                      G
    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               H
    34        SUPREME COURT REPORTS                  [2011) 6 S.C.R.


A   consider as to whether the penalty could be substituted by
    issuing a lesser punishment.

        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
8
    possible either to substitute the penalty of the respondent from
    dismissal to reduction m 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
C   conscious decision was taken by the competent authority to
    maintain the penalty of dismissal.

         19. There are credible and substantial materials on record
    in terms of clause (c) to second proviso to Article 311(2) of
    the Constitution. The aforesaid action of invoking the extra
D   ordinary provisions like clause (c) to second proviso to Article
    311 (2) was also found to be justified by the Tribunal in the
    earlier stage of litigation itself.

         20. Despite the said fact the High Court held that the order
E dated 04.08.2010 passed by the Tribunal not being a speaking
    order showing application of mind cannot be upheld and
    consequently the High Court passed the impugned order dated
    27.09.2010 thereby setting aside the order passed by the
    Tribunal with a direction to the appellants herein to pass a fresh
    speaking order giving reasons for its decision. The said
F findings of the High Court are being challenged in this appeal
    contending inter alia that a conscious and informed decision
    has been taken on the basis of materials on record to dismiss
    the respondent from the service and the reasons for inability
    to hold an inquiry in the interest of the security of the State have
G also been recorded although there is no such mandate tq
    record such reasons. The records indicate that there are
  · sufficient reasons and materials on record as to why the
    service of the respondent was dispensed with in the interest
    of the security of the State. We are also satisfied that the
H reasons contained in the records establish that in the facts of
     UNION OF INDIA AND ANR. v. M.M. SHARMA                     35
         [DR. MUKUNDAKAM SHARMA, J.]
this case holding of an enquiry was rightly dispensed with in         A
the interest of security of the country. We must hasten to add
that the Tribunal had in the earlier round of litigation upheld the
action of the appellants in dispensing with the enquiry in the
interest of the security of the State. The said order of the
Tribunal has also become final and binding. Therefore,                B
challenge in the present round of litigation is whether the
appellants are justified in awarding the punishment of dismissal
from service on the respondent which also deprives him .from
getting any pensionary benefit.

     21. The original records were placed before us, which we C
have perused. The allegations against the respondent are very
serious which could jeopardize the sovereignty and integrity of
India. The records also disclose the highly objectionable
activities and conduct of the respondent which is unbecoming
of a responsible Government servant. The Inquiry Committee D
took the decision of not disclosing the grounds for taking action
against the delinquent officer under clause (c) of the proviso to
Article 311(2) of the Constitution because disclosure of the
same or holding of an inquiry has the potential to jeopardize
national security and relations with a neighbouring country and E
such disclosure could lead to gross embarrassment to the
Government of India. Intelligence Bureau has already conducted
an inquiry and findings of the inquiry officer were based on the
written statement of the suspected officer and other officers;
analysis of phone records; and recovery of photographs from F
the laptop of the respondent. In that context and in view of the
reasons recorded it was concluded that the allegation had far
reaching effects and therefore it was decided to dispense with
holding of any inquiry in the matter and also to dismiss him from
service.                                                          G
     22. A very high level committee considered the entire
record and the allegations against the respondent and on the
basis of the materials available on record, the committee prima
facie tame to the conclusion t~at action could be taken for his
                                                                      H
    36       SUPREME COURT REPORTS                [2011) 6 S.C.R.


A dismissal under clause (c) to second proviso to Article 311(2)
  of the Constitution. The aforesaid recommendation is available
  on record and the High Court could have called for such record
  and therefrom satisfy itself that there are sufficient and cogent
  reasons recorded for taking action under Article 311 (2) (c) of
B the Constitution and also for imposing the penalty for
  dispensation of the service of the respondent by way of
  dismissal from the service.

        23. In our considered opinion, in the present case, charges
  against the delinquent officer being very serious and also in
C 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.
D
        24. The High Court while passing the impugned order was
  fully and effectively aware of the reasons as to why the
  requirement of holding an enquiry in accordance with law was
  dispensed with. Being so situated, the High Court could have
E examined and scrutinised the original records to ascertain for
  itself as to whether the order imposing the penalty of dismissal
  of service is justified or not in the light of the allegations and
  the reports of the fact finding enquiry. The power to be exercised
  under clauses (a), (b) and (c) being special and extraordinary
F powers conferred by the Constitution, there was no obligation
  on the part of the disciplinary authority to communicate the
  reasons for imposing the penalty of dismissal and not any other
  penalty. For taking action in due discharge of its responsibility
  for exercising powers under clause (a) or (b) or (c) it is nowhere
G provided that the disciplinary authority must provide the reasons
  indicating application of mind for awarding punishment of
  dismissal. While no reason for arriving at the satisfaction of the
  President or the Governor, as the case may be, to dispense
  with the enquiry in the interest of the security of the State is
  required to be disclosed in the order, we cannot hold that, in
H
    UNION OF INDIA AND ANR. v. M.M. SHARMA                 37
        [DR. MUKUNDAKAM SHARMA, J.]
such a situation, the impugned order passed against the A
respondent should mandatorily disclose the reasons for taking
action of dismissal of his service and not any other penalty.
     25. If in terms of the mandate of the Constitution, the
communication of the charge and holding of an enquiry could
                                                                 8
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 C
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 04.08.201 O passed by the Central Administrative D
Tribunal, Principle Bench at New Delhi in QA No. 2440 of 2010.
     27. The present appeal is accordingly allowed to the
aforesaid extent leaving the parties to bear their own costs.
B.B.B.                                        Appeal allowed. E