Supreme Court: In a Special Leave against judgment passed by Kerala High Court on 16-1-2012 dismissing challenge against order dated 30-9-2008 regarding dismissal of ISRO Scientist from service by the Central Administrative Tribunal (‘CAT’) without inquiry in the alleged interest of the State, the Division Bench of C.T. Ravikumar* and M.R. Shah, JJ. refused to interfere with the High Court’s affirmation with the decision of CAT or to exercise the power under Article 136 of Constitution.
The appellant, a scientist/engineer in Vikram Sarabhai Space Centre (‘VSSC’) of the Indian Space Research Organisation (‘ISRO’), who applied for sabbatical leave for one year, which the competent authority rejected and did not recommend in exigency of service. The appellant further applied for leave for 9 days from 21-8-2003 to 29-8-2003 on personal grounds but went to South Korea after getting a paper published with a foreigner being one of the co-authors without the approval of competent authority. He intimated his Divisional Head in VSSC regarding his arrival in South Korea to carry out his post-doctoral research and to assist a professor there, through email dated 1-9-2003. While the application was not sanctioned yet, he applied for leave for 89 days from 1-9-2003 to 28-11-2003 while continuing his stay in South Korea despite having the information that his leave was not sanctioned and that he was required to report on duty by 11-9-2003.
This led to initiation of disciplinary action against the appellant, who was chargesheeted on 19-12-2003 for unauthorized absence and publication of papers without following due procedure. The appellant rejoined on 23-1-2004 and again left for South Korea in March 2004 without permission or informing the organization. He attended the preliminary hearing in departmental inquiry and chose absence from further proceedings, which led to ex-parte inquiry and a copy of Inquiry Report holding the charges so proved was sent to him.
Two applications from the appellant before the CAT remained unsuccessful. After returning to India, he rejoined duty on 18-5-2004 and went back to South Korea on 28-5-2004 without obtaining prior permission from the authorities. Thus, he was suspended through order dated 13-7-2004 and was dismissed from service through order dated 11-8-2007 with effect from 1-9-2003 under clause (iii) of Rule 16 of Department of Space Employees’ (Classification, Control and Appeal) Rules, 1976 (‘CCA Rules’). The appellant was asked to refund the subsistence allowance drawn after 1-9-2003.
The appellant sought quashment of order of dismissal from service and order directing refund of subsistence allowance besides seeking order for re-instating him in service. The Tribunal through order dated 30-9-2008 partly allowed the application sustaining the order of dismissal, annulled the grant of retrospectivity from 1-9-2003, so that it takes effect from 11-8-2007 as per the date of order, quashed the order of recovery of subsistence allowance and rejected the prayer for reinstatement in service.
The CAT order was challenged before the High Court by both parties. The organization challenged the effacing the retrospective effect of order of dismissal and restraining recovery of subsistence allowance. On the other hand, the appellant challenged the disinclination to quash the order of dismissal and order for his reinstatement in service. The High Court dismissed the same giving effect to the CAT order and modifying the date of effect of dismissal order from the very date of the same.
The Court scrutinized clause (iii) of Rule 16 of CCA Rules and proviso 2 to Article 311(2) of the Constitution of India and said that the appellant was dismissed from service without any inquiry as required by the said rules.
The Court noticed that the dismissal of the appellant was upheld by the CAT and affirmed by the High Court. Thus, the Court examined the extent of judicial review of the Supreme Court exercising its’ power under Article 136 of the Constitution of India. The Court relied on Union of India v. Tulsiram Patel, (1985) 3 SCC 398 and a catena of cases that “adherence to principles of natural justice i.e., conducting inquiry after issuing charge sheet and providing hearing to a government servant on those charges, in case of proposal to impose any of the aforesaid three major penalties would not arise when the power under Rule 16 (iii) of the CCA Rules is invoked”. The Court further relied on A.K. Kaul v. Union of India, (1995) 4 SCC 73 examining the extent of judicial review in dismissal order.
Before concluding the instant matter, the Court pointed out that the appellant introduced himself as a high-profile scientist in a highly sensitive and strategic research and development organisation, ISRO, under the Department of Space, Government of India. The Court thus viewed that “the Court cannot be an island and feign oblivion of the pivotal role of a scientist/engineer attached to ISRO and also the role of ISRO as the space agency of India.”
The Court perused the documents on record reflecting persistent contact with the said professor and research institute in South Korea on one side, and the restriction on contact with any external agency without permission as required by ISRO. The Court viewed the same to be a matter of concern regarding State security. The Court added that “there cannot be any doubt with respect to the experience which he gathered in the subject from ISRO and in such circumstances leaving to a foreign country without prior permission and continuing there for a considerable long period despite advice and instructions to come back and continuing to associate with such a foreign organisation/university researching on rocketry, the respondent organisation cannot be said to have committed a flaw or fault in entertaining suspicion on his honesty, integrity, reliability, dependability and trustworthiness and above all to treat such acts as a matter of concern in relation to the security of the State.”
The Court supported the authorities not proceeding with the inquiry “in the interest of the security of the State” and said that the instant matter is not fit to be subjected to further judicial review as it was arrived at based on the subjective satisfaction of the President based on materials. The Court refused to interfere with the disinclination on the part of the Tribunal and then the High Court.
The Court further pointed that the retrospectivity of dismissal was modified by CAT and was given effect to by the organization. The Court observed that “When such acts/conduct occur/occurs from a scientist in a sensitive and strategic organization, the decision to impose dismissal from service cannot be said to be illegal or absolutely unwarranted.”
The Court observed that rather than mere unauthorized absence but unauthorized association with foreign institutions was a matter of concern for the security of the State. The Court refused to interfere with the High Court’s affirmation with the decision of CAT or to exercise the power under Article 136 of Constitution.
[Dr. V.R. Sanal Kumar v. Union of India, 2023 SCC OnLine SC 617, decided on 12-5-2023]
Judgment authored by: Justice C.T. Ravikumar
Advocates who appeared in this case :
For Appellants: Advocate on Record Malini Poduval, Advocate Babita Sant, Advocate Savya Sachi Narayanan, Advocate Shifali;
For Respondents: Additional Solicitor General K.M.Natraj, Advocate Shailesh Madiyal, Advocate Vinayaka S. Pandit, Advocate Sharath Nambiar, Advocate Mohd Akhil, Advocate Indira Bhakar, Advocate T.S.Sabarish, Advocate Annirudh Sharma-(II), Advocate Vatsal Joshi, Advocate Vinayak Sharma, Advocate Anuj S. Udupa, Advocate Nakul Chengappa, Advocate Chithransh Sharma, Advocate on Record Amrish Kumar, Advocate on Record Krishan Pal Mavi, Advocate on Record Binu Tamta.