JUDGMENT

Mukundakam Sharma, J.

1. Delay condoned.

2. Leave granted.

3. The present appeal is directed against the judgment and order dated 27.09.2010 whereby the Delhi High Court partly allowed the writ petition filed by the Respondent herein by issuing a direction to the Appellants to pass a speaking order by giving reasons for imposing the penalty of dismissal from service in exercise of powers under Article 311(2)(c) of the Constitution and not any other penalty.

4. In order to appreciate the contentions raised by the parties hereto some basic facts leading to filing of the aforesaid writ petition in the High Court must be stated.

5. The Respondent was posted as First Secretary w.e.f. 02.07.2007 to 03.05.2008 in the Embassy of India, Beijing, China. While on special assignment, the Respondent came under adverse notice and was found to be involved in an unauthorized and undesirable liaison with foreign nationals of the host country. The conduct of the Respondent was enquired into by the Intelligence Bureau (IB). The Director, upon completion of the said inquiry forwarded a detailed report including findings of the Inquiry Officer. The aforesaid report was considered and it was felt that in view of the seriousness of the case and the adverse implications on the security of the State, it would not be expedient to hold the inquiry due to the following reasons:

(i) The Respondent was on special assignment and entrusted with responsible duties of external intelligence. Any formal inquiry would jeopardize security of India, as it would reveal details of intelligence operation in the host country.

(ii) For a proper disciplinary inquiry to be conducted, witnesses would be required to be examined. In this case witnesses can be either foreign nationals or officers working under cover in Indian Embassy in China and examination thereof would certainly jeopardize the security of the State.

6. Consequently, the competent authority took a decision that the services of the Respondent should be dispensed with by exercising powers under Clause (c) of Second Proviso to Article 311(2) of the Constitution of India. Consequent thereto an order dated 22.12.2009 was issued intimating and stating that the President is satisfied to invoke Clause (c) of Second Proviso to Article 311(2) of the Constitution of India that in the interest of the security of the State it is not expedient to hold the inquiry in the case of the Respondent. It was also mentioned in the said order that the President is also satisfied that on the basis of information available the activities of the Respondent are such as to warrant his dismissal from the service.

7. The Respondent challenged the aforesaid order by filing an Original Application before the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as 'the Tribunal') which was registered as OA No. 176 of 2009. In the said Original Application contentions raised inter alia were that the order dated 22.12.2008 passed in exercise of power under Clause (c) of Second Proviso to Article 311(2) of the Constitution of India should be set aside. The aforesaid application was heard and the Tribunal passed an order on 10.12.2009 disposing of the said Original Application by holding that the order does not reveal that there has been application of mind with regard to the nature of punishment to be awarded to the Respondent. The Tribunal directed the Government to re-consider whether the aforesaid penalty awarded to the Respondent could be substituted by any other punishment.

8. Pursuant to the aforesaid order passed by the Tribunal the matter was placed before the competent authority once again and in compliance of the order of the Tribunal an order was passed by the Cabinet Secretariat, Government of India on 03.06.2010, which reads as follows:

WHEREAS Shri M.M. Sharma was dismissed from service under the provisions of Sub-clause (c) of the second proviso to Clause 2 of Article 311 of the Constitution vide ord