New Delhi: Extraordinary constitutional
powers can be used in national interests to dismiss an officer
without inquiry or disclosing reasons, the Supreme Court has
ruled, upholding the sacking of a senior diplomat for
anti-national activities during his posting in China.
A bench of justices Mukundakam Sharma and A R Dave said
in a judgement that in special cases where it impinges on
national security, the disciplinary authority was not bound to
disclose the reasons for such dismissals.
Interpreting Article 311 of the Constitution, the apex
court said the powers to be exercised under clauses(a)(b) and
(c) being special and extraordinary in nature, there was no
obligation on the part of the disciplinary authority to
communicate reasons for imposing the penalty of dismissal.
"For taking action in due discharge of its responsibility
for exercising powers under clause(a)or(b)or(c) it is nowhwere
provided that the disciplinary authority must provide the
reasons indicating application of mind for awarding punishment
"While no reason for arriving at the satisfaction of the
President or the Governor, as the case may, be to dispense
with the inquiry in the interest of the security of the state
is required to be disclosed in the order, we cannot hold that
in such a situation the impugned order passed against the
respondent should mandatorily disclose the reasons for taking
action of dismissal of his service and not any other penalty,"
Justice Sharma, writing the judgement, said.
The apex court passed the judgement while upholding an
appeal filed by the Centre challenging a Delhi High Court
direction asking it to pass a detailed order for dismissing
diplomat M M Sharma.
The officer, during his tenure as First Secretary in
charge of "external intelligence" was found to be involved in
an unauthorised and undesirable liasion with foreign nationals
of the host country.
On the basis of the report submitted by the IB
Director, it was felt that due to the seriousness of the case
and the adverse implications on the security of the state, it
would not be expedient to hold the inquiry and he was
dismissed in terms of the special constitutional provisions on
December 22, 2009.
Sharma challenged his dismissal in the Central
Adminstrative Tribunal(CAT) which rejected his plea. The
Delhi High Court had on September 27 last year asked the
government to pass a detailed order for the dismissal.
Aggrieved, the Centre had appealed in the apex court.
Setting aside the high court order, the apex court said
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) as disclosure of the
same or holding of an inquiry had the potential to jeoparadise
national security and relations with a neighbouring country;
and such disclosure could lead to gross embarssment to the
"The original records were placed before us, which we
have perused. The allegations against the respondent are very
serious which could jeoparadize 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.
"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 bench
The bench said the high court, while passing the order,
was fully and effectively aware of the reasons as to why the
requirement of holding an inquiry in accordance with the law
was dispensed with.
"Being so situated, the high court could have examined
and scrutinised the original records to ascertain as to
whether the order imposing the penalty of dismissal of
services is justified or not in the light of the allegations
and reports of the fact finding enquiry.
"In terms of the mandate of the Constitution, the
communication of the charge and holding of an inquiry 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 extreme penalty of dismissal is imposed on the
delinquent officer. The high court was there not justified in
passing the impugned order," the apex court added.