STATE OF MANIPUR AND 3 ORS v. LAISHRAM SUSHIL SINGH

Court: High Court of Manipur

Bench: HON'BLE THE CHIEF JUSTICE,HON'BLE MR JUSTICE AHANTHEM BIMOL SINGH,HON'BLE MRS. JUSTICE GOLMEI GAIPHULSHILLU KABUI

Judgment date: 2024-11-18

Case summary

High Court of Manipur judgment dated 2024-11-18. STATE OF MANIPUR AND 3 ORS v. LAISHRAM SUSHIL SINGH. Read the judgment and case details on LawSphereX.

Judgment text

Digitally signed by KHOIROM KHOIROM IN THE HIGH COURT OF MANIPUR BIPINCHAND BIPINCHANDRA SINGH AT IMPHAL Date: 2024. 11. 18 RA SINGH 12:38:41 +05'30' WRIT APPEAL No. 18 of 2022 1. The State of Manipur represented by the Addl. Chief Secretary (Home), Government of Manipur. 2. The Director General of Police, Government of Manipur. 3. The Superintendent of Police / CID (Tech), Manipur. 4. The Superintendent of Police / CID (SB), Manipur. …. Appellants [Respondents No. 1, 2, 3 & 4 in the Writ Petition] - Versus - Shri Laishram Sushil Singh, aged about 39 years, S/O L. Birendrakumar Singh of Nagamapal Singjubung Leirak, P. O. & P. S. Imphal West, District Imphal West, Manipur. …. Respondent [Writ Petitioner] B E F O R E HON’BLE THE CHIEF JUSTICE MR. SIDDHARTH MRIDUL HON’BLE MR. JUSTICE AHANTHEM BIMOL SINGH HON’BLE MRS. JUSTICE GOLMEI GAIPHULSHILLU KABUI For the appellants : Mr. H. Debendra, Deputy Advocate General assisted by A. Bheiga, Advocate For the respondent : Mr. K.

Roshan, Advocate assisted by Mrs. Donnapriya Asem, Advocate Date of hearing : 04. 04. 2024 Date of Judgment & Order : 18. 11. 2024 P a g e 1 | 103 JUDGMENT & ORDER (CAV) [Golmei Gaiphulshillu Kabui, J] [1] Heard Mr. H. Debendra, learned Deputy Advocate General appearing on behalf of the appellants and Mr. K. Roshan, learned counsel appearing on behalf of the respondent. [2] The present writ appeal has been instituted with the following prayer: (i) To admit this writ appeal and call for records of writ petition (c) No. 591 of 2017; (ii) To set aside the impugned judgment and order dated 27. 01. 2020 passed in writ petition (c) No. 591 of 2017; (iii) To dismiss the writ petition (c) No. 591 of 2017. [3] The grounds for instituting the instant writ appeal are as under: (i) The Ld.

Single Judge erroneously came to the conclusion and decision that the satisfaction of the Governor as envisaged in Article 311(2) Second proviso, Clause (c) of the Constitution of India for dismissing a person by invoking the provision is the personal satisfaction of the Governor.

Such conclusion and decision is P a g e 2 | 103 contrary to the decision of the Hon'ble Supreme Court (7 Judges Bench) rendered in Shamsher Singh -Vs- State of Punjab[(1974) 2 SCC 831] and also contrary to the decision of the Division Bench of this Hon'ble Court rendered in a catena of similar cases; (ii) Under the Constitutional Law, the satisfaction of the Governor as envisaged in Article 311(2) Second Proviso, clause (c) of the Constitution is not the personal satisfaction of the Governor but the satisfaction to be arrived with the aid and advice of the Council of Ministers; (iii) As per Rules of Business or any other provisions of law or under the relevant Office Memorandum dated 16-08-2008, it is not required for the Governor to put his personal opinion or reasons for arriving at his subjective satisfaction as contemplated under Article 311(2) Second Proviso, Clause (c) of the Constitution of India.

And it is only when the Governor disagree with the proposal/ recommendation of the Committee of Advisors and proposal of the P a g e 3 | 103 Hon'ble Chief Minister, that he is to give reasons and not otherwise; (iv) The proposal of Police Department for dismissing the Writ Petitioner by invoking Article 311(2) Second Proviso, Clause (c) of the Constitution of India by enclosing Secret Report have been verified and vetted by the Home Department, Government of Manipur and placed before the committee of Advisors, an expert body required as per instruction of the Government of Manipur issued by the Department of Personal and Administrative Reform (DP & AR) vide Office Memorandum dated 16-08-2008.

The Committee of Advisors after due consideration of the reports and dossiers submitted by the Home Department, recommended for dismissal of the Petitioner from service by invoking Article 311(2) Second Proviso, clause (c) of the Constitution, the proposal/ recommendation was placed before the Chief Minister for approval. The Governor being satisfied with the recommendation of Committee of Advisors and proposal of the Chief Minister, approved the recommendation on 24- P a g e 4 | 103 04-2017.

After approval of the Governor, as per rule the Under Secretary (Home), Government of Manipur in the name of Governor issued the order dated 13-07-2017 dismissing the Writ Petitioner with Immediate effect in the interest of the Security of the State; (v) The Committee of Advisors after due consideration and examination of records, it came to the conclusion that the Writ Petitioner willingly indulged in the activities of the banned unlawful organization PLA/RPF which are prejudicial to the Security of the State; (vi) There were sufficient incriminating materials on record against the writ petitioner to arrive at the subjective satisfaction of the authority that it was not expedient to hold enquiry for dismissing the Writ Petitioner and it is not for the Court to examine the adequacy or otherwise of materials upon which Governor arrived at his subjective satisfaction that it was not expedient to hold an enquiry in the interest of the security of the State; (vii) The power conferred under clause (c) of Second Proviso to Clause (2) of Article 311 of the P a g e 5 | 103 Constitution of India is in the nature of high prerogative which could not be lightly interfered by the Writ Court; (viii) Satisfaction of the Governor of the State as required under Article 311(2) Second proviso clause (c) of the Constitution will not be subjected to judicial review unless the same has been malafide or based on extraneous or irrelevant grounds as held by the Hon'ble Supreme Court in Union of India-Vs- Tulsiram Patel (1985)3 SCC 398.

In the present case, there is no finding in the impugned judgment and order that the dismissal order was issued in malafide or extraneous or irrelevant grounds; (ix) The writ petitioner's conduct is a threat to the security of the State as he could have been deliberately planted by the prescribed organization PLA/RPF to continue his operation on their behalf within police organization covertly; (x) Non-filing of charge sheet in pending criminal case or pending departmental enquiry against the Writ Petitioner will not make any difference P a g e 6 | 103 in dismissing the Writ Petitioner from service by invoking Clause (c) of Second Proviso to Clause (2) of Article 311 of the Constitution of India vide Government order dated 13-07-2017 and there is no legal bar to dismiss the writ petitioner under the said proviso of the Constitution of India; (xi) The Ld. Single Judge cannot examine the correctness or veracity of the allegations.

The fact remains that there were certain allegations of serious nature. And such allegations have far reaching implications for the security of the State; (xii) While examining an order issued for dismissing a person by invoking clause (c) to Second Proviso to Clause (2) of Article 311 of the Constitution, the Court cannot look the sufficiency or correctness of materials and also about the relevancy as long as some materials are found relevant which forms the subjective satisfaction; (xiii) Pendency of criminal proceedings/ under investigation is a different aspect and it does P a g e 7 | 103 not debarred the state in taking action under Article 311(2)(c) of the Constitution of India. (xiv) There is no infirmity in the order dated 13-07- 2017 dismissing the petitioner from service in the interest of the Security of the State by invoking Clause (c).

[4] In order to appreciate the contentions raised by the parties hereto, some basic facts leading to filing of the aforesaid writ petition must be stated. Accordingly, the facts of the parties are set out hereunder. [5] The writ petitioner joined service as Sub-Inspector Police in the State Police Department in the year 2007. The Police Department, Manipur vide their confidential letter No. U/2 (47/H) PHQ-2015/11529 dated 23-12-2015 submitted a proposal to the State Home Department for dismissal of service of the writ petitioner, Shri. L. Sushil Singh, Sub-Inspector of Police who was posted at CID (Technical), Manipur by invoking provision of Article 311(2) (c) of the Constitution of India for his involvement in subversive activities and his association with the banned unlawful terrorist organization People's Liberation Army/Revolutionary People's Front (PLA/RPF in short) despite being a member of a discipline Police Force in the interest of the security of the State.

P a g e 8 | 103 [6] In the proposal for dismissing service of writ petitioner under Article 311(2)(c), the Secret Report of the Police Department giving details of his arrest while posting at Chief Minister's Bungalow and registration of FIR No. 21 (1) 2015 U/S 38(1) UA(P) Act and Section 5 (b) Official Secrets Act, 1923 and details of his connection with the banned underground organization, PLA/RPF and his continuing involvement in subversive activities which are prejudicial to the security and sovereignty of the country were stated. [7] The State Government, having no alternative in the peculiar facts and circumstances of the case, has been compelled to act on the secret report.

The proposal of the Director General of Police, Manipur, which has been verified and vetted by the Home Department, was placed before the Committee of Advisors constituted for the purpose of examination for invoking Article 311(2) (c) for dismissing service of an employee by dispensing the departmental inquiry. [8] The Committee of Advisors recommended for dismissal of the petitioner from service under Article 311(2) (c) of the Constitution of India as it was not expedient to hold Departmental Enquiry in the interest of Security of the State and the prejudicial activities of the petitioner were affecting the sovereignty and integrity and security of the State.

By following the procedures as required under the law, the matter was placed before the Hon'ble Chief Minister and Governor of Manipur, the Governor being P a g e 9 | 103 satisfied with the recommendation of Committee of Advisors and the proposal of the Chief Minister, Manipur approved the recommendation of Committee of Advisors on 24-04-2017. As such the Under Secretary (Home), Government of Manipur in the name of Governor issued order No. 6/1(6)/16-H(PLA/RPF) dated 13-07-2017 thereby dismissing the writ petitioner from service with immediate effect by invoking Article 311(2)(c) of the Constitution of India in the interest of the security of the State. [9] As aggrieved, the writ petitioner, by filing W. P. (C) No. 591 of 2017, challenged the dismissal order dated 13-07-2017. The State also contested the writ petition by filing affidavit-in-opposition. The Ld.

Single Judge after hearing the parties was pleased to pass the impugned Judgment and Order dated 27-01-2020 thereby allowing the writ petition by setting aside the dismissal order dated 13-07-2017 and directed to reinstate the writ petitioner into service and the period from dismissal to reinstatement shall be considered as period rendered in service for the purpose of pensionary benefit. The dismissal order dated 13. 07. 2017 is extracted below: “GOVERNMENT OF MANIPUR HOME DEPARTMENT ORDERS BY THE GOVENOR MANIPUR th Imphal, the 13 July, 2017 No. 6/1(6)/16-H(PLA)/RPF): Whereas,the Governor of Manipur is satisfied under sub-clause (c) of the proviso to clause (2) of Article 311 of the Constitution that in that interest of the security of the State it is not expedient to hold P a g e 10 | 103 an inquiry in the case of involvement and association with subversive activities of Shri L. Sushil Singh, Sub-Inspector, (CID/SB), Manipur; 2.

And whereas, the Governor of Manipur is satisfied that, on the basis of the information available, the activities of Shri L. Sushil Singh are such as to warrant his dismissal from service; 3. Accordingly, the Governor of Manipur hereby dismisses Shri L. Sushil Singh, Sub-Inspector, (CID/SB), Manipur from service with immediate effect. By orders & in the name of Governor Sd/- (Pautinlam Gangte) Under Secretary (Home) Government of Manipur” Article 311 of the Constitution of India reads as under: “311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State. (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being head in respect of those charges. Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and is shall not be necessary to give such person any opportunity of making representation on the penalty proposed.

Provided further that this clause shall not apply: P a g e 11 | 103 (a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (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; or (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. (3) If, in interest of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.

” It is crystal clear the procedural safeguards provided under clause (2) of Article 311 shall not be applicable in the cases provided under clauses (a), (b) & (c) of the second proviso to Article 311(2) of the Constitution of India. [10] The operative portions of the impugned judgment and order dated 27. 01. 2020 passed in W. P. (C) No. 591 of 2017 are reproduced herein below: “[31] In view of the fact that no material had been placed by the respondent State to satisfy the Court that the impugned dismissal order was passed in security interest, this Court is of the opinion that the impugned order cannot be sustained in the eye of law and also on the ground that already P a g e 12 | 103 departmental proceedings as well as criminal prosecution are stated to be pending against the petitioner. For the foregoing discussion, the impugned order is liable to be set aside. [32] Accordingly, (a) the writ petition is allowed and the order of dismissal dated 13. 07.

2017 passed by the first respondent is set aside; (b) the respondent authorities are directed to reinstate the petitioner into service and give posting other than the post which he was holding prior to the order of dismissal; c) the period from the date of dismissal to the date of reinstatement shall be considered as period rendered in service for the purposes of pensioner benefits, if any. ” [11] Mr. H. Debendra, learned Deputy Advocate General appearing for the appellants submitted that vide order dated 17. 12. 2019, the writ petition being W. P. (C) No. 591 of 2017 was allowed and set aside the dismissal order dated 13. 07. 2017. In setting aside the dismissal order which dismissed the writ petitioner by invoking Article 311(2)(c) of the Constitution of India, the conclusion drawn by the Ld. Single Judge passed in W. P. (C) No.

591 of 2021 are as follows: “(i) The Governor has to be satisfied personally that in the interest of the security of the State, it was not expedient to hold the enquiry as contemplated under Article 311(2) second proviso, clause (c) of the Constitution of India and such power cannot be delegated to any other authority. (ii) Further, the Committee of Advisors made necessary recommendation for taking up action under Article 311(2)(c) of the Constitution of India and the Governor merely approved the recommendation made by the Committee, which in fact not in accordance with law contemplated under Article 311(c) of the Constitution of India. P a g e 13 | 103 (iii) The Governor had merely approved the recommendation of the Committee of Advisors. Mere expressing approval to the recommendation of the Committee of Advisors is not in accordance with the law.

(iv) The impugned dismissal order cannot be sustained as no material had been placed by the respondent State to satisfy the Court that the impugned dismissal order was passed in security interest and moreover, departmental proceedings as well as criminal prosecution are pending against the petitioner. ” [12] Mr. H. Debendra, learned Dy. Advocate General appearing for the appellants submitted that under the Constitutional Law, the satisfaction of the Governor as envisaged in Article 311(2) second proviso, clause (c) of the Constitution is not the personal satisfaction of the Governor, but the satisfaction to be arrived with the aid and advice of the Council of Ministers. The learned Dy. Advocate General referred to the judgment of the Hon’ble Supreme Court passed in Shamsher Singh V. Union of India &Ors. [(1974) 2 SCC 831]. The relevant Para No. 48 of the judgment is extracted below: “48. The President as well as the Governor is the Constitutional or formal head.

The President as well as the Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers, save in spheres where the governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise by the President or the Governor of any power or function, the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the constitutional sense in the Cabinet system of Government, that is, satisfaction of his Council of Ministers on whose aid and advice the President or the P a g e 14 | 103 Governor generally exercises all his powers and functions.

The decision of any Minister or Officer under Rules of Business made under any of these two Articles 77(3) and 166(3) is the decision of the President or the Governor respectively. These articles did not provide for any delegation. Therefore, the decision of Minister or officer under the Rules of Business is the decision of the President or the Governor.

” It is true that the satisfaction required by the Constitution is not the personal satisfaction of the President or Governor; but the satisfaction of the President or Governor is in the constitutional sense in the cabinet system of Government, the satisfaction of his council of ministers on whose advice, the President or Governor exercise his power of function likewise in the case for invocation of Article 311(2)(c) of the Constitution of India, the satisfaction of the Governor is subjective satisfaction, but the subjective satisfaction is to be arrived at on the basis of objective satisfaction of the disciplinary authority based on reliable materials i. e. dossiers, reports, records etc. But, in the instant case, there is no reliable material placed before the disciplinary authority to make the recommendation for invoking Article 311(2)(c) of the Constitution of India.

[13] It has been submitted that as per the Rules of Business or any other provisions of law or under the relevant office memorandum dated 16. 08. 2008, it is not required for the Governor to put up his personal opinion or reasons for arriving at his subjective satisfaction as contemplated under Article 311(2) second proviso, clause (c) of the Constitution of India. And, it is only when P a g e 15 | 103 the Governor disagree with the proposal/recommendation of the Committee of Advisors and proposal of the Hon’ble Chief Minister, that he is to give reasons and not otherwise. It has also been submitted that after due consideration and examination of the reports, records and dossiers submitted by the Home Department, the Committee of Advisors constituted under the office memorandum dated 16. 08.

2008 came to the conclusion that the writ petitioner willingly indulged in the activities of the banned unlawful organisation, PLA/RPF which are prejudicial to the security of the State and recommended for dismissal of the petitioner from service by invoking Article 311(2) second proviso, clause (c) of the Constitution, the proposal/recommendation was placed before the Hon’ble Chief Minister and Hon’ble Governor for approval. The Governor being satisfied with the recommendation of Committee of Advisors and proposal of the Chief Minister, approved the recommendation on 24. 04. 2017. After approval of the Governor, as per rule the Under Secretary (Home), Government of Manipur in the name of the Governor issued the order dated 13. 07. 2017 dismissing the writ petitioner with immediate effect in the interest of the security of the State.

[14] As directed by us, the appellant/State produced the confidential file containing the recommendation of the Committee of Advisor for dismissing the writ petitioner/respondent by invoking P a g e 16 | 103 Article 311 (2) Second Proviso, Clause (c) of the Constitution of India which was verified and vetted by the Home Department, Government of Manipur. We perused the confidential file and on perusal of the same, it was found that in the notes, the Hon’ble Governor put only “may be approved” without expressing its satisfaction to the recommendation made by the disciplinary authority and the materials annexed therein in the confidential file. Mention may be made here that the Governor in this process is the final authority and as such, we are of the opinion that “may be approved” is not a final order/opinion.

For perusal and for convenient’s sake, only the secret report consisting of the following documents, on the basis of which, the extreme steps for dismissing the writ petitioner/respondent was taken are extracted herein below:– (i) The detailed report dated 07. 11. 2015 written by the SDPO, Imphal West to the SP, Imphal West. (ii) The letter dated 02. 12. 2015 written by the SP, CID(SB), Manipur to the Inspector General of Police proposing to move the State Government for dismissing the writ petitioner from service. (iii) Report submitted by the OC/CDO, Imphal West addressed to the OC, IPS dated 22. 10. 2015. (iv) Interrogation statement of the writ petitioner recorded by SDPO, Imphal. P a g e 17 | 103 “GOVERNMENT OF MANIPUR OFFICE OF THE SUB DIVISIONAL POLICE OFFICER, IMPHAL IMPHAL WEST DISTRICT, MANIPUR th No. 2/SDPO-IMP/2015/637 Imphal, the 7 Nov. , 2015. To Superintendent of Police, Imphal West District, Manipur Sub: Submission of detail report. Ref. : FIR No. 21(1)2015 IPS U/S.

38(1)UA(P) Act & 5(b) Official Secrets Act. With reference to Endst. No. 10/13/SP-IW/2015 dated 30/09/2015, I have the honour to submit the following detailed report for favour of kind perusal and necessary action please. DETAILED REPORT 1. P. O. : Office of the OC/CDO/Imphal West, Manipur. 2. D. O. : 22/01/2015 at @ 12:30 pm. 3. D. R. : 22/01/2015 at 2:45 pm. 4. Complt. : Insp. P. Sanjoy Singh, OC/Imphal West, Manipur. 5. Accused : Laishram Sushil Singh (35) S/o. L. Birrendrakumar Singh of Nagamapal Singjubung Leikai, Imphal West, Manipur. 6. Charge : U/S. 38(1)UA(P) Act & 5(b) Official Secrets Act. 7. I. O. : A. Ghanashyam Sharma (MPS), SDPO IMPHAL. Brief fact of the case: The brief fact of the case is that on 22/01/20215 at 2:45 pm, the complainant namely Insp. P. Sanjoy Singh, OC/CDO, Imphal West reported to the OC Imphal PS stating that on the same day i. e. 22/01/2015 at 5:00 am, received a specific information that one SI Laishram Sushil Singh (35) S/o, L.

Birendrakumar Sharma of Nagamapal Singjubung Leirak, serving as a Sub-Inspector in Manipur Police Department has closed link with Unlawful UG Organisations and is providing vital and secret official information to unlawful organization. Based on the information, a team of CDO/IW was sent to call the said P a g e 18 | 103 person at the office of the complainant to inquire about the matter. Then, the said person arrived at @ 6:20 am and he was minutely examined by the complainant. During examination, he disclosed that he is serving as a Sub-Inspector in CID-Technical Branch of Manipur Police Department and presently posted at Chief Minister’s Bungalow at Babupara, whose duty is to monitor CCTV camera installed in and around CM’s Bungalow. He further disclosed that he was arrested earlier also and was detained under NSA.

During further examination, he disclosed that he has closed link with one Sagolsem Bobby @ Ahingcha of Kakwa Nameirakpam Leikai, the commander of Auxiliary Battalion of PLA/RPF. He disclosed that the attacked on security forces at Machikhul of Chandel by PLA/RPF was conducted under the command of said Sagolsem Bobby @ Ahingcha. He disclosed that he used to communicate with Ahingcha through his mobile Phone No. 9612517847 and 8132818550 with the mobile phone number 9191703131 belonging to Bobby @ Ahingcha. He further disclosed that he has been wilfully communicating secret and vital information to Ahingcha, to further their activities and also helping them in their struggle to secede the State of Manipur from the Union of India and thereby associating himself with the PLA/RPF, compromising and jeopardising the security of the State in particular and the security of the Union of India in general.

So, he was arrested at 12:30 pm of 22/01/2015 at the office of OC/CDO Imphal West and seized the following articles on his production:- 1. One Mobile Handset – GIONEE having IMEI No. 863404025291600 and 863404026291609. 2. Two airtel sim cards which was found containing inside the mobile phone having sim card no. 89911 60300 00421 78205 and 89911 60000 01000 68283. 3. One Identify card issued in the name of L. Sushil having no. E-00382. The arrested person along with the seized articles was handed over to Imphal Police Station for taking further necessary legal action against him. Hence, the case and investigated into. During the course of investigation, the accused person was arrested in c/w the case. The complainant was examined, where he fully corroborated with the OE of the case. Visited the P. O. and inspected it very carefully and minutely and also prepared a rough sketch map of the P. O. with proper index. The accused person was remanded into police custody till 05/02/2015.

P a g e 19 | 103 During police custody, the accused person was interrogated where he fully admitted to have committed the offences charged against him. On interrogation, he disclosed that he was earlier arrested in c/w the case FIR No. 31899)2009 IPS U/s. 25(1-a) Arms Act, and detained under NSA at Sajiwa Jail. The following arms and ammunitions were seized from the undernoted accused person in his first arrest: 1) One six round revolver of 032 calibre marked as made in USA Call . 32. 2) Two live rounds of . 32 ammunitions. 3) One . 38 revolver marked as . 38 & WSPL made in USA. 4) Five live round of . 38 ammunition. 5) One 9mm pistol with magazine. 6) Five live rounds of 9mm ammunition. He further disclosed that during his NSA detention at Sajiwa Jail, he had a very close relationship with one S/s. Sergeant, Sagolsem Bobby @ Ahingcha (32) of Kakwa Nameirakpam Leikai, Commander of Auxiliary Battalion of PLA/RPF.

The accused person kept on contact with Ahingcha after he was reinstated and posted in watch section of CID(SB), Manipur. He kept on contact/touch with Ahingcha either through mobile phone or Facebook Messenger. He usually contacted Ahingcha from his mobile no. 9612517847 to Ahingcha’s mobile no. 9191703131. Moreover, he had visited Moreh and met members of terrorist organization to further their prejudicial activities. Investigation so far reveals that he is a professional criminal involved in various cases. He further disclosed that he passed out vital and secret information of the Police Department to the said UGs outfit through mobile phone and Facebook Messenger, including the details of the casualties and other related information of MachiKhul Ambush, laid by RPF on the security force on 14/01/2015. Moreover, he admitted that he has disclosed about the VIP/VVIP’s movements to the UGs outfit.

During the course of further investigation, requested the concerned authority to provide the Call Detailed Record (CDR) with voice recording and Subscriber Detailed Report (SDR) along with the location of the AIRTEL Mobile numbers – (i) 9612517847 (ii) 8132818550 and BSNL mobile no. 9191703131 respectively and also to furnish the mobile nos. of both the Airtel sim cards No. 89911 50300 00421 78205 and 89911 60000 01000 68283. Accordingly, copy of the CDR of the above mentioned three mobile numbers are provided. However, the SDR, location, voice recording of the above mentioned three mobile nos. of both the Airtel sim cards are still awaited. P a g e 20 | 103 On examination of the CDR, it is established that the mobile no. 96125178476 that was seized from the accused person have communicated with the mobile number 9191703131 which belongs to Sagolsem Bobby @ Ahingcha of Kakwa Nameirakpam Leikai, the Commander of the Auxiliary Battalion of RPF/PLA.

The investigation of the case is now in good progress. Further report follows. Dated/Imphal th The 7 Nov. , 2015. Yours faithfully, Sd/- A. Ghanashyam Sharma (MPS) SDPO/IMPHAL WEST” “To The Superintendent of Police Imphal West District, Manipur Sub: Humble submission of arrest report in respect of the undernoted arrested person. Ref. : FIR No. 21(1)2015 IPS U/S 38(1) UA(P)Act & 5(b) Official Secrets Act. Sir, With due respect, I have the honour to submit the arrest report in respect of the undernoted arrested person in c/w the above referred case for your kind perusal and necessary action. The brief fact of the case is that today i. e. 22/01/2015 at 2:45 pm, the complainant namely P. Sanjoy Singh, OC/CDO Imphal West reported to the OC Imphal PS stating that on the same day i. e. 22/01/2015 at @ 5:00 am, received a specific information that one SI Laishram Sushil Singh (35) S/o L.

Birendrakumar Singh of Nagamapal Singjubung Leirak, now serving as a Sub-Inspector in Manipur Police Department has closed link with Unlawful UG organizations and is providing vital and secret official information to unlawful organization. Based on the information, a team of CDO/IW was sent to call the undernoted person at the office of the complainant to inquire about the matter. Then, the undernoted person arrived at @ 6:20 am and he was minutely examined by the complainant. P a g e 21 | 103 During examination, he disclosed that he is serving as a Sub-Inspector in CID-Technical Branch of Manipur Police Department and presently posted at Chief Minister’s Bungalow at Bapupara, whose duty is to monitor CCTV camera installed in and around CM’s Bungalow. He further disclosed that he was arrested earlier also and was detained under NSA.

During further examination, he disclosed that he has closed link with one Sagolsem Bobby @ Ahingcha of Kakwa Nameirakpam Leikai, the commander of Auxiliary Battalion of PLA/RPF. He disclosed that the attacked on security forces at Machikhul of Chandel by PLA/RPF was conducted under the command of said Sagolsem Bobby @ Ahingcha. He disclosed that he used to communicate with Ahingcha through his mobile phone no. 9612517847 and 8132818550 with the mobile phone number 9191703131 belonging to Bobby @ Ahingcha. He further disclosed that he has been wilfully communicating secret and vital information to Ahingcha, to further their activities and also helping them in their struggle to secede the state of Manipur from the Union of India and thereby associating himself with the PLA/RPF, compromising and jeopardising the security of the state in particular and the security of the Union of India in general.

So, he was arrested at 12:30 pm of 22/01/2015 at the office of OC/CDO Imphal West and seized the following articles from his production:- 1. One Mobile Hand – GOENEE having IMEI NO. 863404025291600 and 863404026291609. 2. Two airtel sim cards with was found containing inside the mobile phone having sim card No. 89911 60300 00421 78205 and 89911 60000 01000 68283. 3. One identity card issued in the name of L. Sushil Singh having no. E-00382. The arrested person along with the seized articles was handed over to Imphal Police Station for further necessary legal action against him. Hence the case and investigated into. The undernoted accused person was arrested in c/w the above referred case today i. e. 22/01/2015 and he was interrogated briefly and on his interrogation, he admitted to have committed the offence charged against him. He will be produced before the court of Hon’ble CJM/IW, tomorrow i. e. 23/01/2015 for remanding him in the police custody.

Since the arrested accused person is a Government servant, serving in the Police Department, as S. I. and presently posted at CID Technical Branch, the arrest report is hereby submitted for kind perusal and necessary action please. P a g e 22 | 103 Particulars of the arrested accd person: 1. Laishram Sushil Singh (35) S/o. L. Birendrakumar Singh Of Nagamapal Singjubung Leirak Imphal West, Manipur. Dated/Imphal nd The 22 Jan. , 2015 Yours faithfully, Sd/- (A. Ghanashyam Sharma), MPS SDPO/IMPHAL” [15] Seen the documents mentioned above and the writing/opinion expressed by the disciplinary authority in the notes of the confidential file for dismissal of the writ petitioner/respondent from service under Article 311(2)(c) of the Constitution of India. The letter written by the SP (CID), Manipur, Imphal to the Inspector General of Police, Manipur, in that it was mentioned that the writ petitioner/respondent while posted at CID, Technical Branch was arrested by OC/CDO, Imphal West on 22. 01.

2015 for his involvement in unlawful activities under FIR No. 21(1)2015 u/s 38(1) UA(P) Act and 5(b) Official Secret Act. Thereafter, the writ petitioner/respondent was placed under suspension for his grave misconduct, dereliction of duty and involvement in the activities of unlawful organisation and for close link with unlawful UG organisation with one, Sagolsem Bobby @ Ahingcha, Commander of Auxiliary Battalion of PLA/RPF. It was, further, mentioned that the gravity of the crime is such that its impact is damaging to the discipline and moral of the forces, if such activities are not stopped P a g e 23 | 103 in an exemplary manner, it may set up precedent on the other police personnel to indulge in such activities, and therefore, recommending to be dismissed from service under Article 311 of the Constitution.

In the detailed report of the arrest of the writ petitioner/respondent written by SDPO, Imphal West to the SP, Imphal West, some of the relevant portions of the report are reproduced herein below: Reference is made to the reproduced report at Para No. 14. “So, he was arrested at 12:30 pm of 22/01/2015 at the office of OC/CDO Imphal West ..................................................................................... ...................................................................................... On examination of the CDR, it is established that the mobile no. 9612517847 that was seized from the accused person have communicated with the mobile number 9191703131 which belongs to Sagolsem Bobby @ Ahingcha of Kakwa Nameirakpam Leikai, the Commander of the Auxiliary Battalion of RPF/PLA. ” [16] The contents of the allegation made herein above are the grounds for the dismissal of the writ petitioner/respondent.

Throughout the correspondence made from the SDPO (supra) to the notes placed before the Committee of Advisors, thereafter the Committee of Advisors after going through the file recommended for dismissing the writ petitioner/respondent from service by resorting to Article 311(2)(c) of the Constitution of India, the Committee’s recommendation along with material placed before them was placed P a g e 24 | 103 Hon’ble Chief Minister and finally to the Hon’ble . The Hon’ble Governor, while putting up the file, gave approval by putting “may be approved”, for taking the extreme dismissal of the writ petitioner/respondent by taking recourse to Article 311(2)(c) of the Constitution. The minutes of the meeting of the Committee of Advisors held on 24. 04. 2017 at 11:00 a. m. are extracted hereunder: “1. ............................................................................ 2.

The Committee of Advisors examined the Home Department “Note for Committee of Advisers containing proposal regarding dismissal of Sub-Inspector L. Sushil Singh (35) S/o L. Birendrakumar Singh of Nagamapal Singjubung Leikai under Article 311(2)(c) of the Constitution of India” for his involvement in subversive activities. 3. The Committee noted that as per the Secret Report of the Manipur Police Department vide letter No. 5/3/2015- INT/606 dated 5/12/2015, Sub-Inspector L. Sushil Singh was arrested on 22/01/2016 for his involvement in prejudicial activities and a regular case under FIR No. 21(1)2015 U/s 38(1) UA(P) Act and 5(b) Official Secret Act was registered against him. He has had close link with one Sagolsem Bobby @ Ahingcha of Kakwa Nameirakpam Leikai, the Commander of Auxiliary Battalion of PLA/RPF. He provided secret and vital official information to Ahingcha.

He is apparently involved in unlawful organisation (PLA/RPF) with an ulterior motive and to wage against the Government, thereby indulging in criminal activities. 4. S. I. L. Sushil Singh was also earlier arrested in connection with FIR No. 318(9)2009 IPS U/S 25(1-A) Arms Act and detained under NSA at Sajiwa Jail. The following arms and ammunities were seized from him :- i. 1 six round revolver of . 32 calibre marked as “Made in USA Call . 32. ” ii. 2 live rounds of . 32 ammn. iii. 5 live round of . 38 ammn. iv. 1 9mm pistol with magazine and v. 5 live round of 9mm ammn. P a g e 25 | 103 5. Moreover, he had visited Moreh and met members of terrorist organization to further their prejudicial activities. Investigation so far reveals that he is a professional criminal involved in various cases. He admitted that he disclosed about VIP/VVIP’s movement to the UGs outfit. ” and thereafter, taken a decision at para Nos. 6 to 9 and the same are extracted hereunder: “6.

That the gravity of the crime is such that its impact is debasing to the discipline moral of the forces and promoting insecurity among the public and posing the immediate threat to the security of the Department as well as to the State. If such activities are stopped in an exemplary manner, it may set a precedent on the other police personnel not to indulge in such activities. 7. His continuation in service may threat to the security of the State and appropriate steps may be taken up to dismiss SI L. Sushil Singh of CID(SB) under Article 311(2)(c) of the Constitution for his involvement with unlawful organisations and engagement in subversive activities, without holding Department enquiry as it is not expedient to conduct Departmental enquiry in the interest of the security of the State. 8. The Committee after considering all the details placed before it regarding the activities of L.

Sushil Singh, Sub-Inspector of CID(SB) Branch is satisfied that the accused official has willingly indulged in the activities of an organisation declared unlawful which are prejudicial to the security of the State. As such, it is considered not advisable to disclose the allegations against him or to call upon replies thereto. 9. The Committee Advisers, therefore, decided to recommend dismissal of L. Sushil Singh, Sub-Inspector of CID(SB) from service under Article 311(2)(c) of the Constitution of India as it is not expedient to hold Departmental Enquiry in the interest of security of the State as the prejudicial activities are affecting the security of the State. ” [18] The relevant operative portion of the statement of the writ petitioner/respondent recorded by the I. O. of the case dated 24. 01. 2015 is extracted herein below: “While in the Manipur Central Jail Sajiwa, I became familiar with one UTP namely Sagolsem Bobby @ Ahingcha @ Roi of Kwakeithel Nameirakpam, Leikai, S/S Sgt.

, now P a g e 26 | 103 Commander of the Auxiliary Battalion of PLA. During those days Shri S. Bobby @ Ahingcha requested me to help in their struggle to secede the State of Manipur from the Union of India after release from the jail. As such, I gave consent to help them in future as I was deeply rooted in the approaching struggle to secede the State of Manipur from the Union of India by waging war against the Government. Since the third week of December, 2014, I frequently communicated with Shri S. Bobby Singh @ Ahingcha through internet social networking (Facebook). Later we have exchanged our mobile numbers and started to pass on secret and vital information to Ahingcha for carrying out further activities. I contacted from mobile nos. 9612517847 & 8132818550 with Shri S. Bobby @ Ahinghcha under his no. 9191703131 saved as code name Sagolsem Rointa.

Over and above, I passed on information about the movement of security forces, places of Counter insurgency operations to be carried out by the security forces, top secret official information more related to PLA/RPF organisation etc. I carried out similar task till my arrest. ” On perusal of the steps taken by the State Government from the date of arrest of the writ petitioner/respondent till his dismissal from service by invoking Article 311(2)(c), it is seen and evident that the writ petitioner/respondent was arrested on 22. 01. 2015 placed under suspension on 24. 01. 2015 and after one year, initiated departmental inquiry vide order dated 22. 02. 2016. The inquiry officer and presenting officer were appointed vide orders dated 22. 02. 2016 and 27. 02. 2016. The writ petitioner participated in the departmental inquiry and after receiving signal dated 19. 09. 2016 and 19. 11. 2016, the writ petitioner submitted written argument to the inquiry authority on 05. 12. 2016.

The writ petitioner submitted representation dated 04. 05. 2017 seeking for reinstatement on the P a g e 27 | 103 ground that more than 2 (two) years [two and half years] have passed. In the midst of that, the State Government issued dismissal order dated 13. 07. 2017 by invoking Article 311(2)(c) of the Constitution. In the detailed report of the SDPO, Imphal West proposing to take steps for dismissal of the writ petitioner/respondent, some of the relevant portions are extracted herein above. [19] On perusal of the above extracted minutes of the meeting of the Committee of Advisors, it is seen that the Committee’s resolution was taken on the basis of the secret report of Manipur Police Department at Para No. 3 and on that basis, the Committee formed their opinion on Para No. 6 to 9 and recommended to take recourse to Article 311(2)(c) of Constitution of India for dismissal of the writ petitioner/respondent from service.

On this recommendation and secret report as extracted above of the Police Department, the Hon’ble Governor has written in the note “may be approved”. [20] On further perusal of the above extracted Para No. 3, we are of the view that the disciplinary authority failed to mention the exact involvement of the writ petitioner in prejudicial activities and involvement of the writ petitioner/respondent in unlawful activities with the unlawful organization (PLA/RPF) with an ulterior motive to wage war against the Government and indulgence of the P a g e 28 | 103 writ petitioner in criminal activities and failed to establish that he has closely worked with one Sagolsem Bobby @ Ahingcha, Kakwa Nameirakpam Leikai, the Commander of Auxiliary Battalion of PLA/RPF and his providing secret and vital information to the said Ahingcha.

From perusal of the whole sequence of the developments from the registration of FIR to the culmination in writ petitioner’s dismissal under Article 311(2)(c) of the Constitution of India, it comes out clearly that the view of the disciplinary authority swung from one extreme to another extreme. The reasons/grounds for resorting to such extraordinary step of dismissal, by practically forgoing the laid down procedure, are solely based on the internally generated report i. e. FIR report and the statements extracted from the writ petitioner/respondent, during the police custody with no apparent further efforts made by the police to corroborate the said report and statement. Whatever mentioned as the ground for taking extreme step for dismissing the writ petitioner are just an allegation which was alleged by the investigating authority during the investigation and the internally generated report. 23. In Kuldip Singh v.

State of Punjab, the Hon’ble Supreme Court held that : (SCC pp 662-63, para 7) “7. At our direction made on 22-4-1996 in this matter, the learned counsel for the State has produced the original record relating to the appellant’s dismissal along with translated copies of the relevant document placed before us by the learned counsel for the State is the copy of P a g e 29 | 103 FIR No. 219 of 1990 dated 24-11-1990. It is based upon the statement of Head Constable Hardev Singh, who was posted as gunman with Shri Harjit Singh, Superintendent of Police (SP) (Operations). The FIR speaks of the jeep (in which the said SP was travelling along with certain police personnel) being blown up killing the said SP and few other police officials. The next document placed before us is the case diary pertaining to the said crime containing the statement of the appellant, Kuldip Singh.

In his statement, Kuldip Singh did clearly state about his association with certain named militants, the plot laid by them to kill Shri Harjit Singh, Superintendent of Police, Tarn Taran by placing a bomb and the manner in which they carried out the said plot. He also stated that he and his militant companions planned to plant a bomb in the office of SSP, Tarn Taran but that the police officers came to know of the said plan, thus foiling their plan. The learned counsel for the State of Punjab did concede that except the aforesaid statement of admission/confession of the appellant, there was no other material on which the appellant could be held guilty of conduct warranting dismissal from service.

Accordingly, we are of the considered view that there were no reliable material before the Committee of Advisors to arrive at their satisfaction that the writ petitioner has willingly indulged in the activities of an organization declared unlawful which are prejudicial to the security of the State and as such, we cannot give our approval to his subsequent dismissal under Article 311(2)(c) of the Constitution of India. [21] We are also unable to agree with the Hon’ble Governor giving his/her assent by just writing “may be approved” without expressing subjective satisfaction to the recommendation of the disciplinary authority which is against the dicta of the Hon’ble P a g e 30 | 103 Supreme Court. Article 311(2)(c) of Constitution being the special provision for resorting to this extreme step, extra care is to be taken in taking this extreme step under Article 311(2)(c) of Constitution of India.

This is a Constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and order of penalty following thereupon would both be void and unconstitutional. The Article 311(2)(c) of Constitution in itself says that no person who is a member of Civil Service of Union of India or all India service or Civil Service of a State shall be dismissed or removed without giving a reasonable opportunity of being heard of the charges. In the present case, the authority dismissed the writ petitioner under Article 311(2)(c) of Constitution of India of which, the same is reproduced herein again for convenient sake: “(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. ” The Hon’ble Supreme Court in the case of Southern Railways at Para No. 19 observed as thus: “19.

The second proviso appended to Article 311, however, makes three exceptions in regard to constitutional requirement to hold an inquiry, clause (b) whereof provides that in a case where the disciplinary authority is satisfied that it is not reasonably practicable to hold such inquiry, subject of course to the condition that reasons therefor are to be recorded in writing. Recording of reasons, thus, provides adequate protection and safeguard to the employee concerned. It is now well settled that reasons so recorded must be cogent and sufficient. Satisfaction to be arrived at by P a g e 31 | 103 the disciplinary authority for the aforementioned purpose cannot be arbitrary. It must be based on objectivity.

” From the foregoing observation made by us, we are of view that the disciplinary authority failed to put up reliable before the Hon’ble Governor for arriving at his subjective satisfaction for giving his approval and that the disciplinary authority also failed to mention the departmental inquiry which was ensued more than 1 (one) year after the registration of FIR and the stage of the inquiry where the writ petitioner/respondent already submitted his written argument. The authority failed to clarify and convince the Hon’ble Governor that in spite of holding departmental inquiry for a quite long time and it is not expedient for them to hold further inquiry, concealment of this fact alone is the commission of malafide on the part of the disciplinary authority. The Hon’ble Supreme Court in the case of Union of India v. Tulsiram Patel at para Nos. 130, 133 & 134 held as under: “130. ............

It is because the disciplinary authority is the best judge of this that clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department’s case against the government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311 (3) is not binding upon the court so far as its power of judicial review is concerned and in such a case court will strike down the order dispensing with the inquiry as also the order imposing penalty. P a g e 32 | 103 133.

The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311 (2). This is a constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both the void and unconstitutional. 134. It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty. The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty.

It should, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particulars, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no compliance with the requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry. ” 24. This Court in Union of India v. R. Reddappa held as under: (SCC p. 274, para 5) “5. More than a decade has gone by since these employees were dismissed for participating in strike called by the Union recognised by the Railways. .................................................................. ..................................................................

.................................................................. ........................................................ We are not impressed by the vehement submission of the learned Additional Solicitor General that the CAT, Hyderabad exceeded its jurisdiction in recording the finding that there was no material in support of the finding that it was not reasonably practicable to hold an enquiry. The jurisdiction to exercise the power under Rule 14(ii) was dependent on existence of this primary fact. If there was no material on which any reasonable person could have come to the conclusion as is envisaged in the Rule then P a g e 33 | 103 the action was vitiated due to erroneous assumption of jurisdictional fact therefore the Tribunal was well within its jurisdiction to set aside the orders on this ground.

An illegal order passed by the disciplinary authority does not assume the character of legality only because it has been affirmed in appeal or revision unless the higher authority is found to have applied its mind to the basic infirmities in the order. Mere reiteration or repetition instead of adding strength to the order renders it weaker and more vulnerable as even the higher authority constituted under the Act or the rules for proper appraisal shall be deemed to have failed in discharge of its statutory obligation.

[23] The learned Deputy Advocate General, further, submits that the Call Detail Records (CDR) and other incriminating materials on record against the writ petitioner/respondent are sufficient to arrive at the subjective satisfaction of the authority that it was not expedient to hold enquiry for dismissing the writ petitioner / respondent and it is not for the Court to examine the adequacy or otherwise of materials with which the Governor arrived at his subjective satisfaction that it was not expedient to hold an enquiry in the interest of the security of the State. As observed earlier by us, the authority failed to convince / exhibit the criteria laid down in the provision as well as the dicta laid down by the Hon’ble Supreme Court that the authority put up the incriminating materials on record for objective satisfaction and for subsequent subjective approval of the Hon’ble Governor.

P a g e 34 | 103 The relevant portion of the minutes of the meeting of the Committee of Advisors is hereunder extracted - “6. That the gravity of the crime is such that its impact is debasing to the discipline moral of the forces and promoting insecurity among the public and posing the immediate threat to the security of the Department as well as to the State. If such activities are stopped in an exemplary manner, it may set a precedent on the other police personnel not to indulge in such activities. 7. His continuation in service may threat to the security of the State and appropriate steps may be taken up to dismiss SI L. Sushil Singh of CID(SB) under Article 311(2)(c) of the Constitution for his involvement with unlawful organisations and engagement in subversive activities, without holding Department enquiry as it is not expedient to conduct Departmental enquiry in the interest of the security of the State. 8.

The Committee after considering all the details placed before it regarding the activities of L. Sushil Singh, Sub-Inspector of CID(SB) Branch is satisfied that the accused official has willingly indulged in the activities of an organisation declared unlawful which are prejudicial to the security of the State. As such, it is considered not advisable to disclose the allegations against him or to call upon replies thereto. 9. The Committee Advisers, therefore, decided to recommend dismissal of L. Sushil Singh, Sub-Inspector of CID(SB) from service under Article 311(2)(c) of the Constitution of India as it is not expedient to hold Departmental Enquiry in the interest of security of the State as the prejudicial activities are affecting the security of the State. ” The relevant portion of the office memorandum dated 11. 11. 1985 at Para No. 9 of the office memorandum is extracted herein below: “9. As regards action under clause (c) of the second proviso to Art.

311(2) of the Constitution, what is required under this clause is the satisfaction of the President or the Governor, as the case may be, that in the interest of the security of the State, it is not expedient to hold an inquiry as contemplated by Art. 311(2). This satisfaction is of the President or the Governor as a constitutional authority P a g e 35 | 103 arrived at with the aid and advice of his Council of Ministers. The satisfaction so reached by the President or the Governor is necessarily a subjective satisfaction. The reasons for this satisfaction need not be recorded in the order of dismissal, removal or reduction in rank, nor can it be made public. There is no provision for departmental appeal or other departmental remedy against the satisfaction reached by the President or the Governor. If, however, the inquiry has been dispensed with by the President or the Governor and the order of penalty has been passed by disciplinary authority revision will lie.

In such an appeal or revision, the civil servant can ask for an inquiry to be held into his alleged conduct, unless at the time of the hearing of the appeal or revision a situation envisaged by the second proviso to Article 311(2) is prevailing. Even in such a situation, the hearing of the appeal or revision application should be postponed for a reasonable length of time for the situation to become normal. Ordinarily the satisfaction reached by the President or the Governor, would not be a matter for judicial review. However, if it is alleged that the satisfaction of the President or Governor, as the case may be, had been reached mala fide, or was based on wholly extraneous or irrelevant grounds, the matter will become subject to judicial review because, in such a case, there would be no satisfaction, in law, of the President or the Governor at all.

The question whether the court may compel the Government to disclose the materials to examine whether the satisfaction was arrived at mala fide, or based on extraneous or irrelevant grounds, would depend upon the nature of the documents in question i. e. whether they fall within the class of privileged documents or whether in respect of them privilege has been properly claimed or not. ” [24] It is settled principle of law that the decision/proposal of the disciplinary authority for dismissal of the writ petitioner/respondent under Article 311(2)(c) of the Constitution of India should be objective satisfaction basing on sufficient materials of fact and law in the present case, we are of the view that this criteria is not fulfilled by the disciplinary authority.

P a g e 36 | 103 As observed earlier by us, the objective satisfaction of the disciplinary authority were not as per the provision as well as the dicta of the Hon’ble Supreme Court and as such, we are not agreeable to the submission that the satisfaction was based on sufficient materials of fact and law. Accordingly, we are of the considered view that the recommendation of the disciplinary authority for invoking Article 311(2)(c) of the Constitution of India and the subsequent approval of the Governor are malafide. [25] The learned Deputy Advocate General submits that the decision taken for dismissing the writ petitioner/respondent under Article 311(2)(c) is not subjected to judicial review as there was no malafide or extraneous consideration as in Tulsiram Patel’s case (1985) 3 SCC 398[Para No. 142], the Hon’ble Supreme Court has observed that – “142.

The question under clause (c), however, is not whether the security of the State has been affected or not, for the expression used in clause (c) is “in the interest of the security of the State”. The interest of the security of the State may be affected by actual acts or even the likelihood of such acts taking place. Further, what is required under clause (c) is not the satisfaction of the President or the Governor, as the case may be, that the interest of the security of the State is or will be affected but his satisfaction that in the interest of the security of the State; it is not expedient to hold an inquiry as contemplated by Article 311(2). The satisfaction of the President or Governor must, therefore, be with respect to the expediency or inexpediency of holding an inquiry in the interest of the security of the State.

The Shorter Oxford English Dictionary, Third Edition, defines the word ‘inexpedient’ as meaning “not expedient’ disadvantageous in the circumstances, P a g e 37 | 103 unadvisable, impolite”. The same dictionary defines ‘expedient’ as meaning inter alia “advantageous; fit, proper, or suitable to the circumstances of the case”. Webster’s Third New International Dictionary also defines the terms ‘expedient’ as meaning inter alia “characterized by suitability, practicality, and efficiency in achieving a particular end: fit, proper, or advantageous under the circumstances”. It must be borne in mind that the satisfaction required by clause (c) is of the Constitutional Head of the whole country or of the State.

Under Article 74(1) of the Constitution, the satisfaction of the President would be arrived at with the aid and advice of his Council of Ministers with the Prime Minister as the Head and in the case of a State by reason of the provisions of Article 163(1) by the Governor in the constitutional sense is satisfied that it will not be advantageous or fit or proper or suitable or politic in the interest of the security of the State to hold an inquiry, he would be entitled to dispense with it under clause (c). The satisfaction so reached by the President or the Governor must necessarily be a subjective satisfaction. Expediency involves matters of policy. Satisfaction may be arrived at as a result of secret information received by the Government about the brewing danger to the security of the State and like matters. There may be other factors which may be required satisfaction whether holding an inquiry would be expedient or not.

If the requisite satisfaction has been reached as a result of secret information received by the Government, weighed and balanced in order to reach the requisite satisfaction whether holding an inquiry would be expedient or not. If the requisite satisfaction has been reached as a result of secret information received by the Government, making known such information may very often result in disclosure of the source of such information. Once known, the particular source from which the information was received would no more be available to the Government. The reasons for the satisfaction reached by the President or Governor under clause (c) cannot, therefore, be required to be recorded in the order of dismissal, removal or reduction in rank nor can they be made public. ” [26] However, in the instant case, it is to be mentioned that suspension order was issued on 24. 01. 2015 and the memorandum dated 22. 02. 2016 was issued on 22. 02.

2016 for departmental P a g e 38 | 103 inquiry against the writ petitioner i. e. after the lapse of 1 (one) year of his suspension, vide orders dated 22. 02. 2016 and 27. 02. 2016, the inquiry officer and presenting officer were appointed respectively. Written statement of defence was submitted on 03. 03. 2016 and the supplementary written statement of defence was also submitted on 12. 09. 2016. The writ petitioner appeared before the Presiding Officer of the DE and the written argument to the inquiry authority was submitted on 05. 12. 2016. The dismissal from service by invoking Article 311(2)(c) of the Constitution of India was issued on 13. 07. 2017. [27] In the facts and circumstances, we are not inclined to agree with the submission made above by the learned counsel appearing for the appellant that it is not expedient to hold inquiry and the authority has taken the decision to dismiss the writ petitioner/respondent from service by invoking Article 311(2)(c) of the Constitution.

We are of the considered view that the information received/submitted is/are not reliable enough to come to the satisfaction that it is not expedient to hold an inquiry as contemplated by Article 311(2). The satisfaction of the President or Governor must, therefore, be with respect to the expediency or inexpediency of holding an inquiry in the interest of the security of the State. P a g e 39 | 103 In this regard the Hon’ble Supreme Court in Tulsiram Patel’s case (1985) 3 SCC 398observed at para No. 130, 133 & 134: “130. ................ It is because the disciplinary authority is the best judge of this that clause (3) of Article 311 makes the decision of the disciplinary authority on this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department’s case against the government servant is weak and must fail.

The finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the court so far as its power of judicial review is concerned and in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty. 133. The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional. 134. It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty.

The reason for dispensing with the inquiry need not, therefore, find a place in the final order. It would be usual to record the reason separately and then consider the question of the penalty to be imposed and pass the order imposing the penalty. It would, however, be better to record the reason in the final order in order to avoid the allegation that the reason was not recorded in writing before passing the final order but was subsequently fabricated. The reason for dispensing with the inquiry need not contain detailed particulars, but the reason must not be vague or just a repetition of the language of clause (b) of the second proviso. For instance, it would be no compliance with the P a g e 40 | 103 requirement of clause (b) for the disciplinary authority simply to state that he was satisfied that it was not reasonably practicable to hold any inquiry. ” The Hon’ble Supreme Court in the case of Southern Railways at Para No. 19 observed as thus: “19.

The second proviso appended to Article 311, however, makes three exceptions in regard to constitutional requirement to hold an inquiry, clause (b) whereof provides that in a case where the disciplinary authority is satisfied that it is not reasonably practicable to hold such inquiry, subject of course to the condition that reasons therefor are to be recorded in writing. Recording of reasons, thus, provides adequate protection and safeguard to the employee concerned. It is now well settled that reasons so recorded must be cogent and sufficient. Satisfaction to be arrived at by the disciplinary authority for the aforementioned purpose cannot be arbitrary. It must be based on objectivity. ” Further, the Hon’ble Supreme Court in Southern Railway Officers’ Assn. V. Union of India &Ors. [(2009) 9 SCC 24] observed at Para No. 22, 23, 24, 25 & 26 that – “22. In Satyavir Singh v. Union of India, this Court held : (SCC p. 288, para 21) “21.

The point which was next urged in support of the contention that the impugned orders were passed mala fide was that even though co-workers may not have been available as witnesses, there were policemen and police officers posted inside and outside the building and they were available to give evidence and that superior officers were also available to give evidence. The crucial and material evidence against the appellants would be that of their co-workers for these co-workers were directly concerned in and were eyewitnesses to the various incidents.

Where the disciplinary authority feels that crucial and material evidence will not be available in an inquiry because the witnesses who could give such evidence are intimidated and would not come forward and the only evidence which would be P a g e 41 | 103 available, namely, in this case, of policemen, police officers and senior officers, would only be peripheral and cannot relate to all the charges and that, therefore, leading only such evidence may be assailed in a court of law as being a mere farce of an inquiry and a deliberate attempt to keep back material witnesses, the disciplinary authority would be justified in coming to the conclusion that an inquiry is not reasonably practicable. The affidavit filed by the Joint Director, Research and Analysis Wing, Cabinet Secretariat, Hari NarianKak, who had passed the impugned orders, sets out in detail the various acts of intimidation, violence and incitement committed by each of the appellants.

Copies of the written reasons for dispensing with the inquiry in the case of the appellants have also been annexed to the said affidavit. It is clear from a perusal of the said affidavit and its annexures that the police officers, policemen and senior officers could not have possibly given evidence with respect to all these acts. The said affidavit further states that the senior officers were also intimated and were threatened with dire consequences if they gave evidence. Further, grievances were made against the senior officers of the RAW in the said charter of demands submitted by the said Association and the evidence of senior officers would have been attacked as being biased and partisan. There is thus no substance in this point also. ” 23. In Kuldip Singh v. State of Punjab, this Court held: (SCC pp 662-63, para 7) “7.

At our direction made on 22-4-1996 in this matter, the learned counsel for the State has produced the original record relating to the appellant’s dismissal along with translated copies of the relevant document placed before us by the learned counsel for the State is the copy of FIR No. 219 of 1990 dated 24-11-1990. It is based upon the statement of Head Constable Hardev Singh, who was posted as gunman with Shri Harjit Singh, Superintendent of Police (SP) (Operations). The FIR speaks of the jeep (in which the said SP was travelling along with certain police personnel) being blown up killing the said SP and few other police officials. The next document placed before us is the case diary pertaining to the said crime containing the statement of the appellant, Kuldip Singh.

In his statement, Kuldip Singh P a g e 42 | 103 did clearly state about his association with certain named militants, the plot laid by them to kill Shri Harjit Singh, Superintendent of Police, Tarn Taran by placing a bomb and the manner in which they carried out the said plot. He also stated that he and his militant companions planned to plant a bomb in the office of SSP, Tarn Taran but that the police officers came to know of the said plan, thus foiling their plan. The learned counsel for the State of Punjab did concede that except the aforesaid statement of admission/confession of the appellant, there was no other material on which the appellant could be held guilty of conduct warranting dismissal from service. 24. This Court in Union of India v. R. Reddappa held as under: (SCC p. 274, para 5) “5. More than a decade has gone by since these employees were dismissed for participating in strike called by the Union recognised by the Railways.

.................................................................. .................................................................. .................................................................. ........................................................ We are not impressed by the vehement submission of the learned Additional Solicitor General that the CAT, Hyderabad exceeded its jurisdiction in recording the finding that there was no material in support of the finding that it was not reasonably practicable to hold an enquiry. The jurisdiction to exercise the power under Rule 14(ii) was dependent on existence of this primary fact. If there was no material on which any reasonable person could have come to the conclusion as is envisaged in the Rule then the action was vitiated due to erroneous assumption of jurisdictional fact therefore the Tribunal was well within its jurisdiction to set aside the orders on this ground.

An illegal order passed by the disciplinary authority does not assume the character of legality only because it has been affirmed in appeal or revision unless the higher authority is found to have applied its mind to the basic infirmities in the order. Mere reiteration or repetition instead of adding strength to the order renders it weaker and more vulnerable P a g e 43 | 103 as even the higher authority constituted under the Act or the rules for proper appraisal shall be deemed to have failed in discharge of its statutory obligation. 25. In Indian Railway Construction Co. Ltd. V. Ajay Kumar, this Court held: (SCC p. 588, para 12) “12. It is fairly well settled that the power to dismiss an employee by dispensing with an enquiry is not to be exercised so as to circumvent the prescribed rules. The satisfaction as to whether the facts exist to justify dispensing with enquiry has to be of the disciplinary authority.

Where two views are possible as to whether holding of an enquiry would have been proper or not, it would not be within the domain of the court to substitute its view for that of the disciplinary authority as if the court is sitting as an appellate authority over the disciplinary authority. The contemporaneous circumstances can be duly taken note of in arriving at a decision whether to dispense with an enquiry or not. What the High Court was required to do was to see whether there was any scope for judicial review of the disciplinary authority’s order dispensing with the enquiry. The focus was required to be on the impracticability or otherwise of holding the enquiry. 26. The law laid down by this Court being clear and explicit, the question which would arise for our consideration is whether in then prevailing situation, what a reasonable man taking a reasonable view would have done.

” [28] The learned Deputy Advocate General, further, submitted that the Hon’ble Supreme Court held that while examining an order issued for dismissing a person by invoking clause (c) to second proviso to clause (2) of Article 311 of the Constitution, the Court cannot look into the sufficiency or correctness of materials are also about the relevancy as long as some materials are found relevant which forms the subjective P a g e 44 | 103 satisfaction. The Hon’ble Supreme Court in Union of India &Anr. v. Balbir Singh &Ors. [(1998) 5 SCC 216] (Para No. 7), observed that - “7. In the case of A. K. Kaul v. Union of India this Court has examined the extent of Judicial review permissible in respect of an order of dismissal passed under second proviso clause (c) of Article 311(2) of the Constitution. This Court has held that the satisfaction of the President can be examined within the limits laid down in S. R. Bomai v. Union of India.

The order of the President can be examined to ascertain whether it is vitiated either by mala fides or is based on wholly extraneous and / or irrelevant grounds. The court, however, cannot sit in appeal over the order, or substitute its own satisfaction for the satisfaction of the President. So long as there is material before the President which is relevant for arriving at his satisfaction as to the Court would be bound by the order so passed. This Court has enumerated the scope of judicial review of the President’s satisfaction for passing an order under clause (c) of the second proviso to Article 311(2).

The Court has said, (1) that the order would be open to challenge on the ground of mala fides or being based wholly on extraneous and/o irrelevant grounds; (2) even if some of the material on which the action is taken is found to be irrelevant the court would still not interfere so long as there is some relevant material sustaining the action; (3) the truth or correctness of the material cannot be questioned by the court nor will it go into the adequacy of the material and it will also not substitute its opinion for that of the President; (4) the ground of mala fides takes in, inter alia, situations where the proclamation is found to be a clear case of abuse of power, (5) the could will not lightly presume abuse or misuse of power and will make allowance for the fact that the president and the Council of Ministers are the best judge of the situation and that they are also in possession of information and material and the Constitution has trusted their judgment in the matter; (6) this does not mean that the President and the Council of Ministers are the final arbiters in the matter o that their opinion is conclusive; (cf.

also Union of Territory, Chandigarh v. Mohinder Singh). ” P a g e 45 | 103 In A. K. Kaul & Anr. v. Union of India &Anr. [(1995) 4 SCC 73](Para No. 21),the Hon’ble Supreme Court observed that – “21. It would thus appear that in S. R. Bommai though all the learned Judges have held that the exercise of power under Article 356 (1) is subject to judicial review but in the matter of justiciability of the satisfaction of the President, the view of the majority (Pandian, Ahmadi, Verma, Agrawal, Yogeshwar Dayal and Jeevan Reddy, JJ) is that the principles evolved in Barium Chemicals for adjudging the validity of an action based on the subjective satisfaction of the authority created by statute do not, in their entirety, apply to the exercise of a constitutional power under Article 356. On the basis of the judgment of Jeevan Reddy, J. , which takes a narrower view than that taken by Sawant, J.

, it can be said that the view of the majority (Pandian, Kuldip Singh, Sawant, Agrawal and Jeevan Reddy, JJ.

) is that: (i) the satisfaction of the President while making a proclamation under Article 356(1) is justiciable; (ii) it would be open to challenge on the ground of mala fides or being based wholly on extraneous and / or irrelevant grounds; (iii) even if some of the materials on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action; (iv) the truth or correctness of the material cannot be questioned by the court nor will it go into the adequacy of the material and it will also not substitute its opinion for that of the President; (v) the ground of mala fides takes in inter alia situations where the Proclamation is found to be a clear case of abuse of power or what is sometimes called fraud on power; (vi) the court will not lightly presume abuse or misuse of power and will make allowance for the fa

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