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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 16 th June,  

1994.  Some part of the plant could be restarted only on 17 th 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 15

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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  

2 (1987) 4 SCC 611 16

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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. Jain  3   in support of his submission, that the  

appellant  had  acted  as  “whistle  blower”  ought  not  to  have  been  

punished.  

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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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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  

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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.        

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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  

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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  

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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  

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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  

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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  

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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.  

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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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