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
Dated; April 09, 2013.
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 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 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
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 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
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 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 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.”
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.
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 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.”
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 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 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 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 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 “decision-
making 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 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. Jain[3] in
support of his submission, that the appellant had acted as
“whistle blower” ought not to have been punished.
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 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 4th
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 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 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 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.
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 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 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 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 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 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 whistleblower 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 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 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.
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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[1] (1980) 2 SCC 593
[2] (1987) 4 SCC 611
[3] (2010) 8 SCC 281
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