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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. ………………. OF 2013
[Arising out of SLP (C) NO.9126 OF 2010]
Manoj H. Mishra . ..Appellant
VERSUS
Union of India & Ors. ..Respondents
J U D G M E N T
SURINDER SINGH NIJJAR,J.
1. Leave granted.
2. This appeal is directed against the judgment and order
dated 14th July, 2009 rendered in Letters Patent Appeal No.1041 of
2007 by the Division Bench of the High Court of Gujarat at
Ahmedabad confirming the judgment of the learned Single Judge
dated 31st January, 2007 in Special Civil Application No.2115 of
1997. On 11th May, 2010, this Court issued notice limited to the
question of award of punishment. In the High Court, before the
learned Single Judge, the learned counsel for the appellant made
only one submission that looking to the allegations and the charges
proved against the appellant and the penalty of removal imposed
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upon the appellant is disproportionate to the misconduct. However,
in the Letters Patent Appeal, a draft amendment was moved by the
appellant seeking to challenge the order of removal from service on
the ground that the acts committed by the appellant did not
constitute misconduct. The application for amendment was rejected.
3. We may very briefly notice the relevant facts for deciding the
limited issue as to whether the punishment imposed on the appellant
is shockingly disproportionate to the misconduct.
4. On 14th October, 1991, the appellant, who had studied
upto 12th standard, was appointed as Tradesman/B Class III post at
Kakarapar Atomic Power Project (KAPP) at Surat, Gujarat, a public
sector enterprises. He was placed on probation for two years in
accordance with the statutory rules. It is his case that on completion
of the probation period, he is deemed to be confirmed w.e.f.
14th October, 1993. Thereafter, on 17th December, 1993, he was
elected as General Secretary of the recognized Union of Class III
and Class IV of KAPP, called Kakarapar Anumathak Karamchari
Sangthan. It is the claim of the appellant that until his resignation
from the primary membership of the aforesaid Union
on 22nd September, 1995 at the instance of the Managing Director of
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the Nuclear Power Corporation (respondent No.2), he acted as the
General Secretary of the Union. He was a popular Union leader who
always won elections with more than 3/4th majority. On 3rd May,
1994, he was declared a protected workman along with others. He
claims that as the General Secretary of the Union, he was very
active and always made extra efforts to see that the genuine
demands of the members of the Union are accepted by the
respondents. As a representative of the Union, he was regularly in
contact with the Station Director, KAPP (respondent No.4). As a
consequence of the Union activities, the relationship of the appellant
with respondent No.4 were sour. The appellant, however,
maintained working relationship with the respondents. It is also the
claim of the appellant that during the monsoon season, there was
heavy rain during the night of 15th June, 1994 and water at
Kakarapar Dam had risen beyond the danger level. As a result, the
Dam authorities had to open the flood gates. In normal
circumstances, Kakarapar lake would receive the Dam water
through a canal which is an interlink. The water of the lake is used
by the respondents’ authorities for power generation. However, on
the night of 15th July, 1994, it was the flood water, which entered in
the Kakarapar lake and within no time it had also entered into the
plant. Before the next morning, more than 25 feet of the turbine
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which is adjacent to the Nuclear reactors was submerged under
water. In fact, the entire record room and computer room were
washed away. That apart, some of the barrels containing nuclear
wastes were also washed away by the flood water. On
16th July, 1994, the respondent authorities declared an emergency,
and started taking preventive measures.
5. It is the claim of the appellant that questions were being raised by
many people as to why and how the flood water could not be
prevented from entering into the turbines and other areas of the
plant. Therefore on 18th June, 1994, the appellant wrote a letter to
the Editor, Gujarat Samachar, Surat narrating in the Gujarati
language about the aforesaid incident. A translated copy of the
letter has been placed at Annexure: P1 to the Special Leave Petition
and reads as under :-
“Date: 18.06.1994
To,
The Editor,
Gujarat Samachar,
Surat.
In the Kankarapar on 16.06.94 there was water filled
in, due to this reason about 25 to 30 feet water was filled in
the Kankarapar, due to this reason the machines lying in the
Atomic Centre shut down Unit No.1 several machines have
moved back, and if this same unit No.1 was in the running
condition then the situation would have been very grave, the
Unit No.2 is not yet started. On 16.06.94 night there was
water filled in the Pali Mahi Scheme, but some engineers in
the department who were present at night in Pali they did not
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find it important to take any action due to this reason the
water level went on rising slowly and the situation became
so worse that there was emergency declared and the
employees were sent away, the staff that was left behind
there was no proper facility for food and water made, the
employees leader Manojbhai Mishra says that all this is a
result of grave corruptions. The department has incurred
expenses worth lakhs of rupees and several big canals were
made, but the same were not managed properly therefore
due to ….illigible….field engineer section thousands of
rupees were expended and in the building the situation was
very grave and due to this reason although there were
thousand crores rupees expended on motor, pump, piping all
of which is drowned.
The employees leader Manojbhai Mishra has stated
that in the department there are no arrangements made for
meeting with the natural calamities, and as a result of which
this situation was created. Manojbhai Mishra has further
stated that this is not any cloth mill, sugar mill or any paper
mill but it is a valuable asset of the country of India and it is
an atomic reactor. Manojbhai Mishra says that a high level
committee inquiry should be immediately initiated in respect
to the Kakarapar Atomic Centre and take strict action against
the erring officer, so that in future no such accident may take
place.
Thanking you,
Yours faithfully,
Sd/-
[Manojbhai Mishra]
General Secretary Employee Union”
6. The appellant points out that he did not disclose any official
information which he could have received during his official duty.
He claims that the facts narrated in the letter were of public
knowledge and a matter of public concern. This is evident from the
fact that every newspapers, politicians, members of legislative
assembly and other citizens expressed their concern regarding the
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safety of the nuclear project and as to how the said incident could
have happened. The appellant had narrated the facts relating to the
water logging so that in future this type of incident may not occur.
The appellant relies on a newspaper Anumukti dated
22nd June, 1994 entitled “Paying the Price for Honesty and Courage”.
This article points out that although mercifully no great disaster took
place the event did highlight the lax attitude towards safety of the
nuclear power plant authorities. The article points out some of the
glaring irregularities. After pointing out the irregularities, the article
concludes:-
“All this shows a criminal negligence on part of designers,
operations and regulators of nuclear power in the country.
And yet nobody is likely to suffer any adverse consequences
at all. Nobody except Shri Manoj Mishra – the man who
blew the whistle”.
xx xx xx
“Mishra was immediately suspended from work for the crime
of talking to the press and his suspension continues even
today, five months after the event. While all those who
displayed singular dereliction of duty continued merrily
along, the one man who put the interest of the country above
his own selfish interest has been made to suffer as an
example to others that in the nuclear establishment the only
‘leaks’ that matter are leaks of authentic information.”
7. The appellant claims that it was only after the news was
published on the 22nd June, 1994 that people outside and even the
nuclear establishment in Bombay took cognizance of the event. The
Station Superintendent made a “dash” to Surat and issued a
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statement along with the District Collector of Surat assuring all and
sundry that all was well under control. The appellant claims that his
honest approach was, however, not appreciated by the Management
and in fact he was singled out for action, instead of taking action
against erring officials on account of negligence. He had only
performed his duty in alerting the authorities to the imminent danger
to KAPP.
8. As a ‘reward’, the respondent authorities placed him under
suspension by an order dated 5th July, 1994, in contemplation of
disciplinary proceedings for major penalty. On 4th August, 1994,
the appellant was served with the following charge sheet:-
“Article I: That Shri Manoj Mishra, while functioning as
Tradesman/B in the Kakrapar Atomic Power Project, vide his
letter on 18-6-1994 to the Editor, 'Gujarat Samachar'
newspaper, Surat, unauthorisedly communicated with the
Press.
Article II: That the said Shri Manoj Mishra, while functioning
as Tradesman/B in the aforesaid project, in the letter dated
18-6-1994 written by him to the Editor, Gujarat Samachar
made certain statement or expressed certain opinions, which
amounted to criticism of the Project management or casting
of aspersion on the integrity of its authorities.
Article III: That the said Shri Manoj Mishra, while functioning
as Tradesman/B in the aforesaid project, though his letter
dated 18-6-1994, he wrote to the Editor of the Gujarat
Samachar unauthorisedly communicated to the Press official
information concerning the Kakrapar Atomic Power Project.
Article IV: That the said Shri Manoj Mishra, while functioning
as Tradesman/B in the aforesaid project established contact
with a Press correspondent to feed information enabling the
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press to create news story about the Project containing
inflammatory and misleading information causing
embarrassment to, and damaging the reputation of the
Project and the NPCIL.
Article V: That the said Shri Manoj Mishra, while functioning
as Tradesman/B in the aforesaid project, established
contacts with the Press correspondent and fed him with vital
information which has come into his possession in the
course of his duty as Tradesman/B in the Project, enabling
the press to create a news story about the Project creating
embarrassment to the Project as swell as to the State
authorities. Shri Manoj Mishra has thus committed breach of
oath of secrecy which he took at the time of joining the
Project.”
9. The appellant appeared before the Enquiry Officer
on 20th December, 1995, when his Defence Assistant (for short ‘DA’)
made the following statement:-
“DA. Shri Manoj Mishra met M.D. on 18.12.95 regarding the
enquiry. He made appeal to M.D. on 22.9.95 and referring to
this Shri Mishra enquired with M.D. As to what was his
decision on his appeal. M.D. informed Shri Mishra that a
lenient view will be taken, if he accepts the charge. I also
met him today and he assured similarly to me also. In view
of the above facts, Shri Mishra admits all the charges
levelled against him and accordingly requests closure of the
proceedings. We now request the I.O. also to take a lenient
view of the case.”
10. The Enquiry Officer, however, declined to accept the
conditional admission with the following observations:-
“I.O. Such admissions in the inquiry are not valid. Your
meeting M.D. is an extraneous matter with which I am
Inquiry Officer is not concerned. Further I also would not like
you to admit the charges on reasons other than facts. I
therefore, request you to categorically tell me whether on
your own you admit the charges or not.”
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11. In response to the aforesaid request of the Enquiry Officer, the
appellant, i.e., C.O. stated thus :-
“C.O. I admit the charges. I request the inquiry to be closed.”
12. In view of the aforesaid admission, the Enquiry Officer closed
the enquiry proceedings. The charges were held to be proved
against the appellant. Acting on the aforesaid enquiry report by
order dated 30th March, 1996, the Disciplinary Authority ordered the
removal of the appellant from service of KAPP w.e.f. afternoon of
30th March, 1996. The appellant was informed that an appeal lies
against the aforesaid order with the Station Director, KAPP within a
period of 45 days from the date of the issue of the order. The
appeal filed by the appellant was dismissed. The appellant
thereafter preferred a revision application before respondent No. 3,
which was also dismissed.
13. The appellant challenged the aforesaid order by way of a
Special Civil Application No. 2115 of 1997. The aforesaid writ
petition was dismissed by learned Single Judge. The appellant
preferred LPA No. 1041 of 2007 against the aforesaid judgment of
the learned Single Judge, which was dismissed by the Division
Bench on 14th July, 2009. All these orders have been challenged
before this Court in the present appeal.
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14. We have heard the learned counsel for the parties.
15. Mr. Prashant Bhushan, learned counsel appearing for the
appellant submitted that the appellant had only done his duty as an
enlightened citizen of this country in highlighting the serious lapses
on the part of the authorities that could have resulted in a
catastrophic accident. Learned counsel pointed out that seriousness
of the accident which took place at KAPP is evident from the fact
that it is mentioned in the Audit Report submitted by the department
of the Atomic Energy to the Government on the safety of Indian
Nuclear Installation. Learned counsel further pointed out that power
supply to the KAPP could be restored only at 1510 hrs. on 16th June,
1994. Some part of the plant could be restarted only on 17th June,
1994 at 10.25 am. The report clearly indicates that during the
incident Site Emergency was declared at 11.00 a.m. and terminated
at 5.00 p.m. on 16th June, 1994. The Audit Report clearly indicates
that the valuable feedback arising out from the three incidents which
were reviewed, which indicated the incident at KAPS led to
strengthening the design of the nuclear power stations in the
country. Therefore, according to the learned counsel, instead of
being punished, the appellant ought to have been rewarded for
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doing his duty as an enlightened citizen of this country. Learned
counsel further pointed out that once the internal emergency had
been declared, respondent Nos. 2 to 4 were under obligation to alert
the Collector and District Magistrate, Surat, SDM of Vyara, Mandvi,
Olpad, DSP (rural), Surat about the emergency situation. However,
the KAPP authority did not alert the authorities of the district
administration on 16th June, 1994. In fact the District Authority
visited the site only on 23rd June, 1994 after the new stories were
published in the local dailies on 22nd June, 1994. Mr. Prashant
Bhushan has made a reference to the letter dated 2nd July, 1994, in
which the Disciplinary Authority has informed the appellant that:
“As a result of the appearing of the highly inflammatory news
stories in the press, the authorities of the District
Administration had to rush to the Plaint Site on 23.6.1994 to
ascertain the veracity of the story and to take corrective
measures for removing the apprehensions caused all around
on account of the news story. The project authorities too had
to rush to the District Headquarters on 23.6.1994 for taking
appropriate immediate action to issue clarificatory
information to the Press. All these could have been avoided
had Shri Manoj Mishra and his accomplices behaved
themselves in the responsible manner and desisted
themselves from interacting with the press and passed on
distorted information.
Since the action on the part of Shri Manoj Mishra and his
accomplices has caused serious difficulties to the various
authorities, apart from causing irreversible damage to the
reputation of the establishment and called in the question the
integrity of some of its own employees, the District
Administration Authorities have called upon the Project
Management to investigate into the entire episode and take
action to bring to book the culprits.”
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16. Mr. Prashant Bhushan submitted that if the aim of the
appellant was to seek publicity, he could have gone to the press on
16th June, 1994 or the latest on 17th June, 1994. The appellant only
talked to the reporters when they were at plant site to cover the
situation. He had talked to the press in his capacity as the General
Secretary of KAKS. Learned counsel pointed out that the appellant
only wrote to the letter dated 18th June, 1994 to the Editor of Gujarat
Samachar, when he saw that the concerned authorities were acting
negligently. Mr. Bhushan further submitted that the appellant has
been misled into admitting the charges levelled against him as he
was verbally assured by respondent No. 4 that he would be dealt
with leniently, if he admits all the charges. Keeping in view the facts
that the appellant had acted in the best interest of nuclear facility
and to prevent a catastrophic accident having disastrous result like
Fukushima accident, the appellant could not be said to be guilty of
any misconduct. Mr. Bhushan further submitted that the information
given by the appellant was not, in any manner, confidential
information to invite any Disciplinary Proceedings or punishment.
The appellant was, in fact, in the position of a “whistle blower” and
he is to be given full protection by the Court. Learned counsel
pointed out that radio activity would continue for a long time even
after a nuclear reactor is shut down, therefore, the fuel rods have to
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be kept cool for a very long time and sometimes even for years. The
incident which took place on the night of 15th June, 1994 was very
serious. The power failure could have had devastating effect.
Therefore, the civil authorities had to be alerted forthwith, as the
population in the entire area would have to be evacuated. Instead of
taking timely preventive measures, the atomic centre merely tried to
keep the incident concealed. Merely because the damage caused by
the flood was ultimately controlled is not a ground to conclude that it
would not have led to a major catastrophe. The appellant had only
alerted the Civil Authorities, which was required to be mandatorily
done by the respondents, under the rules. Mr. Bhushan reiterated
that the description of the incident given by the authorities
themselves clearly shows that ultimately action was taken on a war
footing to control the flood situation at the site. Various officers were
contacted and it was on their action the situation was brought under
control. Learned counsel also reiterated the Extracts from Manual on
Emergency Preparedness for KAPS Volume I Part II, Page 3 and
Action Plan for Site Emergency. He brought to our notice, in
particular, that on hearing the emergency signal and/or on getting
information of the same through telephone (or any other means), the
Director shall immediately proceed to the main control room. He is
required to alert Collector and District Magistrate, Surat, SDM of
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Vyara, Mandvi, Olpad, DSP (rural), Surat. Under Clause 5 of the
aforesaid extracts from Manual. The authorities are required to
depute one Assistant Health Physicist to the assembly areas for
general contamination and radiation checks. Arrangements have to
be made for transportation of injured person/persons to the Hospital
after providing First Aid. Arrangements had to be made for
evacuation of the site personnel, if required. Since none of that was
being done, the appellant acted as a “whistle blower” and alerted the
Press.
17. Mr. Bhushan makes a reference to the letter dated 2nd July,
1994 of the Senior Manager (P & IR) to the appellant as President of
KAKS in which it was alleged that “the story which appeared in
Gujarat Samachar created panic among the people residing in areas
nearby the Project in particular and the State of Gujarat in general
as also the State Administration, thereby causing spread of
disinformation and bringing disrepute to the Project, which was
raised doubts about the safety of the Project and integrity of the
Project Authorities”.
18. Learned counsel, therefore, submitted that the learned Single
Judge as well as the Division Bench have committed a serious error
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in not accepting the plea of the appellant that the punishment was
disproportionate to the misconduct. Learned counsel submitted that
when exercising the jurisdiction under Article 226 of the Constitution
of India, the High Court is not bound by any technicalities and is
required to do substantial justice where glaring injustice demands
affirmative action. He submitted that in the circumstances ends of
justice would be met in case the punishment of removal is
substituted by the punishment of stoppage of three increments
without cumulative effect. He relies on Gujarat Steel Tubes Ltd. &
Ors. Vs. Gujarat Steel Tubes Mazdoor Sabha & Ors.1
, in which
this Court held as under:-
“While the remedy under Article 226 is extraordinary and is
of Anglo-Saxon vintage, it is not a carbon copy of English
processes. Article 226 is a sparing surgery but the lancet
operates where injustice suppurates. While traditional
restraints like availability of alternative remedy hold back the
court, and judicial power should not ordinarily rush in where
the other two branches fear to tread, judicial daring is not
daunted where glaring injustice demands even affirmative
action. The wide words of Article 226 are designed for
service of the lowly numbers in their grievances if the subject
belongs to the court's province and the remedy is
appropriate to the judicial process”.
19. Relying on the aforesaid observations, he submits that the
High Court has failed to exercise the jurisdiction vested in it under
Article 226 of the Constitution of India. The Singe Judge, even
having noticed the principle that the Court can interfere with the
1
(1980) 2 SCC 593
15Page 16
decision of the Disciplinary Authority, if it seems to be illegal or
suffers from procedural impropriety or is shocking to the judicial
conscience of the Court, erroneously failed to apply the same to the
case of the appellant.
20. The punishment imposed on the appellant suffer from all the
vices of irrationality, perversity and being shockingly
disproportionate and ought to have been set aside and substituted
by a lesser punishment. In support of the submissions, he relies on
Ranjit Thakur Vs. Union of India & Ors.2
, in which this Court held
as under:-
“25. Judicial review generally speaking, is not directed
against a decision, but is directed against the “decisionmaking process”. The question of the choice and quantum of
punishment is within the jurisdiction and discretion of the
court-martial. But the sentence has to suit the offence and
the offender. It should not be vindictive or unduly harsh. It
should not be so disproportionate to the offence as to shock
the conscience and amount in itself to conclusive evidence
of bias. The doctrine of proportionality, as part of the concept
of judicial review, would ensure that even on an aspect
which is, otherwise, within the exclusive province of the
court-martial, if the decision of the court even as to sentence
is an outrageous defiance of logic, then the sentence would
not be immune from correction. Irrationality and perversity
are recognised grounds of judicial review. In Council of Civil
Service Unions v. Minister for the Civil Service9 Lord Diplock
said:
“Judicial review has I think developed to a
stage today when, without reiterating any
analysis of the steps by which the development
has come about, one can conveniently classify
under three heads the grounds on which
2
(1987) 4 SCC 611
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administrative action is subject to control by
judicial review. The first ground I would call
‘illegality’, the second ‘irrationality’ and the third
‘procedural impropriety’. That is not to say that
further development on a case by case basis
may not in course of time add further grounds.
I have in mind particularly the possible
adoption in the future of the principle of
‘proportionality’ which is recognised in the
administrative law of several of our fellow
members of the European Economic
Community;. . .”
21. On the same proposition, the learned counsel has relied on a
number of judgments, but it is not necessary to make a reference to
them as the ratio of law laid down in the aforesaid cases have only
been reiterated. Learned counsel submitted that on 21st April, 2004,
Ministry of Personnel, Public Grievances and Pension issued a
Notification for the protection of “whistle blowers” in terms of the
order of this Court in Parivartan & Ors. Vs. Union of India & Ors.,
Writ Petition (C) No. 93 of 2004 along with Writ Petition (C) No. 539
of 2003 recording the murder of Shri Satyendra Dubey. He also
relied on judgment of this Court in Indirect Tax Practitioners’
Association Vs. R.K. Jain3
in support of his submission, that the
appellant had acted as “whistle blower” ought not to have been
punished.
3
(2010) 8 SCC 281
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22. Mr. Parekh seriously disputes the version of events as
narrated by the learned counsel for the appellant. He submits that
on 16th June, 1994, as a result of the overflow, the flood water
entered into parts of the plants and, therefore, precautionary actions
were to be taken. Therefore, follow up exercises were being
diligently carried out when everyone was busy in tackling the
situation to save Atomic Power Plant, the appellant, using the official
telephone contacted the following members of the media:-
(i) 623375-The Editor, Gujarat Samachar, Surat
(ii) 20760- Shri Vilasbhai Soni, Press Reporter,
Sandesh, Vyare
(iii) 30225-Hasmuklal and Company, Sardar
Chowk, Bardoli.
23. On 18th June, 1994, at about 11.30 a.m., the appellant
telephoned the pass section of CISF and told Mr. A. Srikrishna,
CISF Constable, that a person asking for him will come to pass
section. The Constable was told to tell the person to wait for the
appellant. After the press reporter arrived, the appellant met him in
his official quarters. Thereafter, the appellant wrote the letter to the
Daily Gujarat Newspaper having the largest circulation in Gujarat.
Relying on the aforesaid, the newspaper published the news. Soon
thereafter on 22nd June, 1994, another news story appeared in
Gujarat Samachar with the title that “Half of Gujarat would have
exploded on June 15”. In this news story, it was stated that “at the
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same time chances of an accident damaging not only Surat district
but, the whole of Gujarat and being totally demolished within
seconds have been saved”. According to Mr. Parekh, the aforesaid
story contained false and defamatory allegations of “blatant
corruption going on in the organization”. It gave false and distorted
and inflammatory information about the Project, raising serious
doubts about the safety and security of the Nuclear Power Plant.
The aforesaid news story was capable of creating extreme panic
among the public of Gujarat. After satisfying himself with the safety
situations, the District Collector in his capacity as Director of Site
Emergency Plan of KAPS gave a press release to that effect.
Similarly, the Station Director also issued a press release to diffuse
the panic situation created by the news item released by the
appellant in his own name and signature. These clarifications were
published in the Gujarat Samachar on 23rd June, 1994.
On 5th July, 1994, respondent No. 2 appointed a Committee to
investigate the role of the appellant behind the aforesaid media
reports. Based on the preliminary reports, the Disciplinary Authority
placed the appellant under suspension, in contemplation of
disciplinary proceedings to be initiated against him for major penalty.
The statement of imputation of misconduct of misbehaviour in
support of charges were served on the appellant on
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4
th August, 1994. An Inquiry Officer was appointed on
26th December, 1994. At the primary hearing in the enquiry, the
appellant denied all the charges. His choice of Mr. P.B. Sharma as
Defense Assistant was accepted. He was given inspection of all the
documents, he was also asked to submit his list of witnesses. The
appellant had stated that the list of witnesses would be submitted
after consulting his Defense Assistant. On 9th October, 1995, the
hearing of the inquiry was adjourned on the ground that the
appellant had submitted an appeal to NPCIL. On 20th December,
1995, the appellant admitted all the charges leveled against him in
toto and accordingly the inquiry was closed on such admission of the
charges.
24. Mr. Parekh further submitted that the appellant having
admitted all the charges levelled against him can not be permitted to
resile from the same on the ground that any assurance of leniency
were made to him by the respondents. He further submitted that the
appellant has been non-suited at every stage. Even this Court had
only issued notice with regard to the question of punishment. He
points out that the appellant is correct in saying that he is not an
employee of a cloth mill or sugar mill, he was an employee of the
highly sensitive Atomic Centre. He was required to maintain highest
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degree of confidentiality at the time of the incident. The appellant,
instead of assisting the control of flood situation, was busy giving
disinformation to the press. He submitted that under the rules and
regulations applicable at the Atomic Centre, press can not be
contacted by any employee other than the Specified Officer. This is
so as the workers in the nuclear power facility are a special category
of employees. They are required to maintain a very high standard
with regard to confidentiality to prevent the leakage of very sensitive
information. Mr. Parekh emphatically denied the claim of the
appellant that he is a “whistle blower”. At the time when the water
was entering into the nuclear plant the appellant made three
telephone calls to the Media divulging the information which he was
not permitted to give. The appellant had even informed the
constable on duty to keep one of the news reporters outside
on 18th June, 1994 when the emergency was at its highest.
Mr. Parekh further pointed out that a mere perusal of the charges
which have been admitted by the appellant would clearly show that
the punishment is not only justified but in fact rather lenient. The
respondents in fact had the option to prosecute the appellant but he
has only been proceeded against the departmentally. Mr. Parekh
also submitted that most of the submissions made by Mr. Bhushan
and the documents relied upon in support of the submissions were
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never a part of the record before the High Court. According to the
learned senior counsel, the appellant does not deserve any leniency
and the appeal deserves to be dismissed.
25. We have considered the submissions made by the learned
counsel very anxiously.
26. We have noted in detail the submissions made by
Mr. Bhushan, though strictly speaking, it was not necessary in view
of the categorical admission made by the appellant before the
Enquiry Officer. Having admitted the charges understandably, the
appellant only pleaded for reduction in punishment before the High
Court. The learned Single Judge has clearly noticed that the
counsel for the appellant has only submitted that the punishment is
disproportionate to the gravity of the misconduct admitted by the
appellant. The prayer made by the appellant before the Division
Bench in the LPA for amendment of the grounds of appeal to
incorporate the challenge to the findings of guilt was rejected.
27. In our opinion, the learned Single Judge and the Division
Bench have not committed any error in rejecting the submissions
made by the learned counsel for the appellant. We are not inclined
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to examine the issue that the actions of the appellant would not
constitute a misconduct under the Rules. In view of the admissions
made by the appellant, no evidence was adduced before the Enquiry
Officer by either of the parties. Once the Enquiry Officer had
declined to accept the conditional admissions made by the
appellant, it was open to him to deny the charges. But he chose to
make an unequivocal admission, instead of reiterating his earlier
denial as recorded in preliminary hearing held on 26th December,
1994. The appellant cannot now be permitted to resile from the
admission made before the Enquiry Officer. The plea to re-open the
enquiry has been rejected by the Appellate as well as the Revisional
Authority. Thereafter, it was not even argued before the learned
Single Judge. Learned counsel had confined the submission to the
quantum of punishment. In LPA, the Division Bench declined to
reopen the issue. In such circumstances, we are not inclined to
exercise our extraordinary jurisdiction under Article 136 for
reopening the entire issue at this stage. Such power is reserved to
enable this Court to prevent grave miscarriage of justice. It is
normally not exercised when the High Court has taken a view that is
reasonably possible. The appellant has failed to demonstrate any
perversity in the decisions rendered by the Single Judge or the
Division Bench of the High Court.
23Page 24
28. Having examined the entire fact situation, we are unable to
accept the submission of Mr. Bhushan that the appellant was acting
as a “whistle blower”. This Court in the case of Indirect Tax
Practitioners’ Association (supra) has observed as follows:-
“At this juncture, it will be apposite to notice the growing
acceptance of the phenomenon of whistleblower. A
whistleblower is a person who raises a concern about the
wrongdoing occurring in an organisation or body of people.
Usually this person would be from that same organisation.
The revealed misconduct may be classified in many ways;
for example, a violation of a law, rule, regulation and/or a
direct threat to public interest, such as fraud, health/safety
violations and corruption. Whistleblowers may make their
allegations internally (for example, to other people within the
accused organisation) or externally (to regulators, law
enforcement agencies, to the media or to groups concerned
with the issues).”
29.Before making the aforesaid observations, this Court examined in
detail various events which had taken place over a long period of
time in which, the respondent, Editor of the Law Journal, Excise Law
Times had participated. A Contempt Petition was filed by the
appellant association against the respondent on the ground that he
wrote an editorial in the issue dated 1st June, 2009 of the Journal,
which amounted to criminal contempt under Section 2(c) of the
Contempt of Courts Act, 1971. In the editorial, the respondent
appreciated the steps taken by the new President of CESTAT to
cleanse the administration. However, at the same time, he
24Page 25
highlighted the irregularities in transfer and posting of some
members of the Tribunal. He had pointed out that one particular
member, Mr. T.K. Jayaraman had been accommodated at
Bangalore by transferring another member from Bangalore to Delhi
in less than one year of his posting. Apart from this, he had also
criticized some of the orders passed by the bench comprising of
Mr. T.K. Jayaraman, which were adversely commented upon by the
High Court of Karnataka and Kerala. In spite of this, the appellant
contended that, by highlighting the irregularities and blatant
favoritism shown to Mr. T. K. Jayaraman, Mr. R.K. Jain was trying to
scandalize the functioning of CESTAT and lower its esteem in the
eyes of the public. It was pointed out that the article in which the
aforesaid statements have been made, was in breach of the
undertaking filed in this Court in Contempt Petition (Crl.) No. 15 of
1997. In these proceedings, the respondent had given an
undertaking on 25th August, 1998, to abide by the advise given by
his senior counsel that in future whenever there are any serious
complaints regarding the functioning of CEGAT, the proper course
would be to first bring those matters to the notice of the Chief Justice
of India, and/or the Ministry of Finance and await a response or
corrective action for a reasonable time before taking any other
action. During the pendency of the aforesaid contempt case, the
25Page 26
respondent had written a number of detailed letters to the Finance
Minister and other higher authorities in the Government of India
highlighting the specific cases of irregularities, malfunctioning and
corruption in CESTAT. After the notice of contempt was discharged,
the respondent wrote two more letters to the Finance Minister on the
same subject and also pointed out how the appointment and posting
of Mr. T.K. Jayaraman, Member CESTAT was irregular. He wrote
similar letters to the Revenue Secretary; President, CESTAT;
Registrar, CESTAT and the Central Board of Excise and Customs.
Since no cognizance of the aforesaid letters were taken by any of
the five authorities, the respondent wrote the editorial in which he
made the comments, which led to the filing of the Contempt Petition
by the appellant.
30.This Court took notice of the conduct and the credentials of the
respondent. It is noticed that the respondent is not a novice in the
field of Journalism. For decades, he had been fearlessly using his
pen to highlight malfunctioning of CEGAT and its successor
CESTAT. In his letter dated 26th December, 1991 written to the then
Chief Justice of India, he complained that CEGAT is without a
president for last over six months, which has adversely affected the
functioning of the Tribunal. After an in depth analysis of the relevant
26Page 27
constitutional provisions, this Court gave certain suggestions for
improving the functioning of CEGAT and other Tribunals constituted
under Articles 323A and 323B. [See R.K. Jain Vs. Union of India,
(1993) 4 SCC 119]. It was pointed out that the allegations made by
Mr. R.K. Jain having regard to the working of CEGAT are grave and
the authorities can ill afford to turn a “Nelson’s eye” to those
allegations made by a person who is fairly well conversant with the
internal working of the Tribunal.
31. After noticing the aforesaid observations in the earlier case,
this Court in the case of Indirect Tax Practitioners’ Association
(supra), pointed out that respondent was very conscious of the
undertaking filed in the earlier Contempt Petition and this is the
reason why before writing the editorial, he sent several
communications to the functionaries concerned, to bring to their
notice the irregularities in the functioning of CESTAT. The Court
notices that “The sole purpose of writing those letters was to enable
the authorities concerned to take corrective measures but nothing
appears to have been done by them to stem the rot. It is neither the
pleaded case of the appellant nor any material has been placed
before this Court to show that the Finance Minister or the Revenue
Secretary, Government of India had taken any remedial action in the
27Page 28
context of the issues raised by the respondent. Therefore, it is not
possible to hold the respondent guilty of violating the undertaking
given to this Court.”
32. This Court upon meticulously taking note of the entire fact
situation observed that the editorial written by the respondent was
not intended to demean CESTAT as an institution or to scandalize
its functioning. Rather, the object of the editorial was to highlight the
irregularities in appointment, posting and transfer of members of
CESTAT and instances of abuse of the quasi judicial powers. It was
further observed that the editorial highlighted the unsatisfactory
nature of the orders passed by the particular bench of
Mr. T.K. Jayaraman was a member. The orders had been set aside
by the High Courts of Karnataka and Kerala as well as by this Court.
In these circumstances, this Court observed:-
“38. It is not the appellant's case that the facts narrated in
the editorial regarding transfer and posting of the members
of CESTAT are incorrect or that the respondent had
highlighted the same with an oblique motive or that the
orders passed by the Karnataka and Kerala High Courts to
which reference has been made in the editorial were
reversed by this Court. Therefore, it is not possible to record
a finding that by writing the editorial in question, the
respondent has tried to scandalise the functioning of
CESTAT or made an attempt to interfere with the
administration of justice.
41. One of the most interesting questions with respect to
internal whistleblowers is why and under what circumstances
people will either act on the spot to stop illegal and otherwise
28Page 29
unacceptable behaviour or report it. There is some reason to
believe that people are more likely to take action with
respect to unacceptable behaviour, within an organisation, if
there are complaint systems that offer not just options
dictated by the planning and controlling organisation, but a
choice of options for individuals, including an option that
offers near absolute confidentiality. However, external
whistleblowers report misconduct on outside persons or
entities. In these cases, depending on the information's
severity and nature, whistleblowers may report the
misconduct to lawyers, the media, law enforcement or
watchdog agencies, or other local, State, or federal
agencies.
42. In our view, a person like the respondent can
appropriately be described as a whistle blower for the system
who has tried to highlight the malfunctioning of an important
institution established for dealing with cases involving
revenue of the State and there is no reason to silence such a
person by invoking Articles 129 or 215 of the Constitution or
the provisions of the Act.”
33. In our opinion, the aforesaid observations are of no avail to the
appellant. It is a matter of record that the appellant is educated only
upto 12th standard. He is neither an engineer, nor an expert on the
functioning of the Atomic Energy Plants. Apart from being an insider,
the appellant did not fulfill the criteria for being granted the status of
a “whistle blower”. One of the basic requirements of a person being
accepted as a “whistle blower” is that his primary motive for the
activity should be in furtherance of public good. In other words, the
activity has to be undertaken in public interest, exposing illegal
activities of a public organization or authority.
The conduct of the
appellant, in our opinion, does not fall within the high moral and
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ethical standard that would be required of a bona fide “whistle
blower”.
34. In our opinion, the appellant without any justification assumed
the role of vigilante. We do not find that the submissions made on
behalf of the respondents to the effect that the appellant was merely
seeking publicity are without any substance.
The newspaper reports
as well as the other publicity undoubtedly created a great deal of
panic among the local population as well as throughout the State of
Gujarat. Every informer can not automatically be said to be a
bonafide “whistle blower”.
A “whistle blower” would be a person who
possesses the qualities of a crusader. His honesty, integrity and
motivation should leave little or no room for doubt. It is not enough
that such person is from the same organization and privy to some
information, not available to the general public. The primary
motivation for the action of a person to be called a “whistle blower”
should be to cleanse an organization. It should not be incidental or
byproduct for an action taken for some ulterior or selfish motive.
35. We are of the considered opinion that the action of the
appellant herein was not merely to highlight the shortcomings in the
organization.
The appellant had indulged in making scandalous
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remarks by alleging that there was widespread corruption within the
organization. Such allegations would clearly have a deleterious
effect throughout the organization apart from casting shadows of
doubts on the integrity of the entire project.
It is for this reason that
employees working within the highly sensitive atomic organization
are sworn to secrecy and have to enter into a confidentiality
agreement.
In our opinion, the appellant had failed to maintain the
standard of confidentiality and discretion which was required to be
maintained.
In the facts of this case, it is apparent that the appellant
can take no advantage of the observations made by this Court in the
case of Indirect Tax Practitioners’ Association (supra). This now
brings us to the reliance placed by the appellant on the judgment in
the case of Gujarat Steel Tubes Case (supra). In our opinion, the
ratio in the aforesaid judgment would have no relevance in the case
of the appellant. We are not satisfied that this is a case of ‘glaring
injustice’.
36. In our opinion, the punishment imposed on the appellant is not
‘so disproportionate to the offence as to shock the conscience’ of
this Court. The observations of this Court in Ranjit Thakur (supra)
are also of no avail to the appellant. No injustice much less any
grave injustice has been done to the appellant.
31Page 32
37. We see no merit in the appeal and the same is hereby
dismissed.
…..…….…………………J.
[Surinder Singh Nijjar]
…..……………………….J.
[M.Y.Eqbal]
New Delhi;
April 09, 2013.
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