UNION OF INDIA Vs. BALBIR SINGH

JUDGEMENT

(1.) The respondent was enrolled as Sub-Inspector in the Delhi Police in the year 1967. In 1984 the respondent was working as a Sub-Inspector in Special Security District, New Delhi and was posted at the residence of the then Prime Minister Mrs. Indira Gandhi for security purposes. On 31st of October, 1984 the then Prime Minister was assassinated by two members of her security staff, namely, Sub-Inspector Beant Singh and Constable Satwant Singh of the Delhi Police. In connection with the murder a criminal case was registered under Sections 307, 302 and 120-B of the Indian Penal Code read with Sections 25, 27, 54 and 59 of the Arms Act. The respondent was arrested in connection with the said criminal case. In view of his arrest on 8th of December, 1984 the respondent was placed under suspension. The order of suspension stated that a Departmental Enquiry will be conducted against the respondent.

(2.) In the course of investigation in the said criminal case certain material was received by the Intelligence Bureau. In view of the material so received and the information gathered by the Intelligence Bureau, a proposal was mooted by the Delhi Police for dismissal of the respondent from service on account of his being associated with subversive activities affecting the security of the State. In connection with action to be taken against Government servants engaged in or associated with subversive activities undermining security of the State under proviso (c) to Article 311 (2) without holding a departmental inquiry, the Ministry of Home Affairs, Government of India, Department of Personnel and Administrative Reforms, has formulated an Office Memorandum dated 26-7-1980. The Memorandum, inter alia, enumerates different kinds of subversive activities. These include cases where Government servants have engaged in activities of the following types which may affect/endanger the security of the State such as:(a) Membership of, or association with, any body or organisation declared unlawful after it was so declared; (b) participation in or association with any activity or programme - (i) aimed at the subversion of the Constitution; or (ii) aimed at the organised breach or defiance of the law involving violence; or (iii) prejudicial to the interests of the sovereignty and integrity of India; or (iv) which promotes on grounds of religion, race, language, caste or community, feelings of enmity or hatred between different sections of the people; (c) association with organisations engaged in subversive activities, in secret organisations which while professing to work in a democratic way, in fact, engage in activities to overthrow the present political system, or organisations which have foreign inspiration and liaison for similar objectives. In such type of cases the Office Memorandum provides that the case should be referred to a Committee of Advisors together with all relevant documents. The referral note should, inter alia, give particulars of specific facts, incidents or events which the department concerned feels, would justify action under the proviso to Article 311 (2) of the Constitution and not under the normal disciplinary rules. It should also contain the basis and reliability of the evidence as also in what manner these facts, incidences or events show that the official could be brought within the meaning of the activities specified. In essence the brief should contain material as would convince a reasonable person of the guilt which could, but for the confidentiality of the matter, be established in normal proceedings. The Memorandum further provides that where the competent authority is the Head of a Department, if he and the Deputy Inspector General agree that sufficient grounds do not exist for proceeding against the employee under proviso (c) to Article 311 (2) of the Constitution, the matter should be dropped. But in every other case, the Head of the Department should refer the case to the Administrative Ministry/Department with his recommendation. On receipt of the recommendation the case should be placed before a Committee of Advisors for its consideration. The Committee shall examine the case and make its recommendations.

(3.) The Committee is a high-power Committee of Advisors consisting of the Home Secretary; the Secretary, Department of Personel and Administrative Reforms; the Secretary, Ministry of Law and Justice, the Secretary, Ministry/ Department concerned with the case and the Director, Intelligence Bureau or his nominee who shall not be below the rank of Deputy Director. The Committee of Advisors is required to decide whether, inter alia, on grounds of national security and the nature of the allegations made against the suspect, it is or is not advisable or necessary to disclose the allegations against the suspect or to call for his reply thereto. The Committee, after considering all the facts, is required to recommend whether action should be taken for the dismissal or removal of the Government servant from service under proviso (c) to Article 311 (2) of the Constitution without a departmental inquiry. If the recommendation of the Committee of Advisors is for taking such action, the recommendation is required to be placed before the Minister in the Ministry of Home Affairs for his order. It is only thereafter that the order of dismissal under proviso (c) to Article 311 (2) can be issued. An order under proviso (c) to Article 311 (2) is, therefore, issued after a detailed examination of all relevant facts by a committee of very senior and experienced Administrators in various Ministries with the approval of the ministries concerned.