Mohan Kumar, a Partnership Firm v. Union of India through Secretary Ministry of Civil Aviation, New Delhi
2020-02-13
RAJESH SHANKAR
body2020
DigiLaw.ai
ORDER : 1. The present writ petition has been filed for quashing and setting-aside the order dated 31.10.2019 passed by the respondent no. 2-Secretary to the Government of India, Ministry of Civil Aviation, New Delhi which has been communicated to the petitioner vide e-mail dated 03.12.2019, whereby the appeal filed by the petitioner under the provisions of Rule 4 of the Aircraft Security Rules, 2011 (hereinafter referred to as “the Rules, 2011”) has been dismissed. Further prayer has been made for quashing and setting-aside the letter dated 23.07.2019 communicated to the petitioner’s firm, whereby the application filed by the petitioner regarding security clearance has been rejected. 2. The factual background of the case as stated in the writ petition is that the petitioner is primarily engaged in the business of providing auxiliary services comprising of house-keeping and allied services. The Ministry of Civil Aviation, Government of India, New Delhi invited applications on an online portal namely “e-Sahaj” for obtaining one-time No Objection Certificate or security clearance which is granted by the Ministry of Civil Aviation and its attached offices of the Ministry of Home Affairs etc. to facilitate the contractors working at various airports in the country. The Ministry of Civil Aviation issued a general notice dated 24.11.2017 prescribing the category of works for which one-time security clearance could be obtained from the Bureau of Civil Aviation Security. Pursuant to the said communication, the petitioner applied online on e-Sahaj Portal vide its application dated 24.07.2018 for grant of one-time security clearance. However, the petitioner received letter dated 23.07.2019 issued by the respondent no. 4-Assistant Director (Policy), Bureau of Civil Aviation Security, Government of India, New Delhi informing that its application regarding security clearance has been regretted by Bureau of Civil Aviation Security, also stating that the said order has been issued with the approval of the Director General, Bureau of Civil Aviation Security. The petitioner thereafter preferred appeal under Rule 4 of the Rules, 2011. The petitioner also preferred a writ petition being W.P. (C) No. 3681 of 2019 before this Court, which was disposed vide order dated 23.09.2019 directing the respondent no. 2 to hear and dispose of the petitioner’s appeal within a period of two weeks from the date of receipt of the order. The petitioner filed an application before the respondent no. 2 to dispose of the said pending appeal. The respondent no.
2 to hear and dispose of the petitioner’s appeal within a period of two weeks from the date of receipt of the order. The petitioner filed an application before the respondent no. 2 to dispose of the said pending appeal. The respondent no. 2 thereafter heard the petitioner and subsequently communicated to it about the impugned order dated 31.10.2019 vide e-mail dated 03.12.2019 rejecting the said appeal. Hence, the present writ petition. 3. The learned counsel for the petitioner submits that on bare perusal of the order dated 31.10.2019, it would appear that the respondent no. 2 passed the said order rejecting the petitioner’s appeal solely on the ground that pursuant to its application filed through online e-Sahaj portal for grant of security clearance, the Bureau of Civil Aviation Security has got the matter enquired by the Central Security Agency which has submitted an adverse report against the petitioner. It is further submitted that neither during the course of hearing before the respondent no. 2 nor at any other point of time, the copy of the said adverse report of the Central Security Agency has been furnished to the petitioner. In fact, the impugned order itself mentions that the said adverse report submitted by the Central Security Agency cannot be shared with the petitioner. Thus, the impugned order dated 31.10.2019 passed by the respondent no. 2 is an utter violation of the principles of natural justice. It is a cardinal principle of law that a document sought to be relied upon against any person/entity which would result in adverse civil consequences is required to be furnished to the said person/entity in order to give an opportunity to the said person/entity to revert the same. Despite the said settled proposition of law, the so-called adverse report of the Central Security Agency has not been furnished to the petitioner. The denial of security clearance to the petitioner and rejection of its appeal amounts to blacklisting it in perpetuity and the petitioner would not be able to render any service with the respondent authorities for all times to come. The effect of the order of denial of security clearance to the petitioner and the consequential rejection of its appeal has caused serious adverse civil consequences inasmuch as all its existing five contracts with various airports have been cancelled.
The effect of the order of denial of security clearance to the petitioner and the consequential rejection of its appeal has caused serious adverse civil consequences inasmuch as all its existing five contracts with various airports have been cancelled. The petitioner-firm has been carrying on various works on behalf of the respondent authorities for last 14 years and till today, no notice/any adverse order has been passed against it. There is no criminal case pending against the petitioner-firm and after examining the periodical character verification, security clearance was granted to the petitioner by the Airport Authority of India. 4. On the other hand, Mr. Manoj Tandon, the learned counsel appearing on behalf of the respondents submits that the application for grant of security clearance was rejected on the basis of the adverse report of the Central Security Agency against the petitioner. Since it is matter of national security, the respondents are not required to follow the principles of natural justice. Hence, the impugned order passed by the respondent no. 2 is completely justified and the same requires no interference of this Court. 5. Heard the learned counsel for the parties and perused the materials available on record. 6. The main submission of the learned counsel for the petitioner is that its application filed for obtaining one-time security clearance has been rejected by the Bureau of Civil Aviation Security in violation of the principles of natural justice and the said fact has been completely ignored by the respondent no. 2 while hearing its appeal who also dismissed the same. On the other hand, the learned counsel for the respondents has submitted that Bureau of Civil Aviation Security has taken decision in the interest of national security which is based on an adverse report received from the Central Security Agency which cannot be shared with any person/entity. 7. To consider the rival submission of the learned counsel for the parties, it would be relevant to go through the judgment of the Hon’ble Supreme Court rendered in the case of Ex-Armymen’s Protection Services (P) Ltd. vs. Union of India, (2014) 5 SCC 409 , the relevant paragraphs of which are quoted as under: “11.
7. To consider the rival submission of the learned counsel for the parties, it would be relevant to go through the judgment of the Hon’ble Supreme Court rendered in the case of Ex-Armymen’s Protection Services (P) Ltd. vs. Union of India, (2014) 5 SCC 409 , the relevant paragraphs of which are quoted as under: “11. It is now settled law that there are some special exceptions to the principles of natural justice though according to Sir William Wade, any restriction, limitation or exception on principles of natural justice is “only an arbitrary boundary.” To quote further: “The right to a fair hearing may have to yield to overriding considerations of national security. The House of Lords recognised this necessity where civil servants at the government communications headquarters, who had to handle secret information vital to national security, were abruptly put under new conditions of service which prohibited membership of national trade unions. Neither they nor their unions were consulted, in disregard of an established practice, and their complaint to the courts would have been upheld on ground of natural justice, had there not been a threat to national security. The factor which ultimately prevailed was the danger that the process of consultation itself would have precipitated further strikes, walkouts, overtime bans and disruption generally of a kind which had plagued the communications headquarters shortly beforehand and which were a threat to national security. Since national security must be paramount, natural justice must then give way. The Crown must, however, satisfy the court that national security is at risk. Despite the constantly repeated dictum that ‘those who are responsible for the national security must be the sole Judges of what the national security requires’ the court will insist upon evidence that an issue of national security arises, and only then will it accept the opinion of the Crown that it should prevail over some legal right.” (Emphasis supplied) 12. In Council of Civil Service Unions vs. Minister for Civil Service, the House of Lords had an occasion to consider the question.
In Council of Civil Service Unions vs. Minister for Civil Service, the House of Lords had an occasion to consider the question. At AC p. 402 C-D, it has been held as follows: “......The decision on whether the requirements of national security outweigh the duty of fairness in any particular case is for the Government and not for the courts, the Government alone has access to the necessary information, and in any event the judicial process is unsuitable for reaching decisions on national security. But if the decision is successfully challenged, on the ground that it has been reached by a process which is unfair, then the Government is under an obligation to produce evidence that the decision was in fact based on grounds of national security.” (Emphasis supplied) 13. The Privy Council in Zamora, held as follows at AC p. 107: “........Those who are responsible for the national security must be the sole Judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a court of law or otherwise discussed in public.” (Emphasis supplied) 14. According to Lord Cross in Crompton Alfred Amusement Machines vs. Customs and Excise Commissioners (No. 2): (AC p. 434 F-G) “.....In a case where the considerations for and against disclosure appear to be fairly evenly balanced the courts should, I think, uphold a claim to privilege on the grounds of public interest and trust to the head of the department concerned to do whatever he can to mitigate the ill effects of non-disclosure.” 15. It is difficult to define in exact terms as to what is “national security.” However, the same would generally include socio-political stability, territorial integrity, economic solidarity and strength, ecological balance, cultural cohesiveness, external peace, etc. 16. What is in the interest of national security is not a question of law. It is a matter of policy. It is not for the court to decide whether something is in the interest of the State or not. It should be left to the executive. To quote Lord Hoffman in Secy. of State for Home Department vs. Rehman: (AC p. 192C) “.......in the matter of national security is not a question of law. It is a matter of judgment and policy.
It should be left to the executive. To quote Lord Hoffman in Secy. of State for Home Department vs. Rehman: (AC p. 192C) “.......in the matter of national security is not a question of law. It is a matter of judgment and policy. Under the Constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive.” 17. Thus, in a situation of national security, a party cannot insist for the strict observance of the principles of natural justice. In such cases, it is the duty of the court to read into and provide for statutory exclusion, if not expressly provided in the rules governing the field. Depending on the facts of the particular case, it will however be open to the court to satisfy itself whether there were justifiable facts and in that regard, the court is entitled to call for the files and see whether it is a case where the interest of national security is involved. Once the State is of the stand that the issue involves national security, the court shall not disclose the reasons to the affected party.” 8. Further, in the case of Digi Cable Network (India) (P) Ltd. vs. Union of India, (2019) 4 SCC 451 , the Hon’ble Apex Court while relying on the judgment rendered in the case of Ex-Armymen’s Protection Services (P) Ltd. (supra) has held as under: “16. Having perused the note filed by the Union of India, which resulted in cancellation of permission, we are of the considered opinion that in the facts of this case, the appellant was not entitled to claim any prior notice before passing of the cancellation order in question. 17. In other words, we are of the view that the principles of natural justice were not violated in this case in the light of the law laid down by this Court in Ex-Armymen’s Protection Services (P) Ltd. inasmuch as the appellant was not entitled to claim any prior notice before cancellation of permission.” 9. Thus, the main issue before this Court as to whether the principles of natural justice is required to be followed in the case where there is an issue of national security.
Thus, the main issue before this Court as to whether the principles of natural justice is required to be followed in the case where there is an issue of national security. It has been held in the aforesaid judgments rendered by the Hon’ble Supreme Court that the national security is of paramount consideration and the same must be given way as against any other issue. The authority who has the responsibility of taking care of national security must be the sole judge of such an issue. The courts should not insist on the evidence on the issue as to whether the national security arises or otherwise. Moreover, in a situation of national security, a person cannot insist for strict observance of the principles of natural justice. However, the court, after having taken into consideration of the facts and circumstances of a particular case, may satisfy itself by calling its record as to whether the interest of national security is involved or not. It is a settled law that when the decision making is policy based, the judicial approach to interfere with such decision making becomes narrower especially when the policy is the outcome of deliberations of the technical experts in the fields as the courts are not well-equipped to fathom into such domain which is left to the discretion of the Executive. Safety and security of the State is in the exclusive domain of the Executive under the doctrine of separation of power. 10. In the present case, it appears from the impugned order dated 31.10.2019 that the appeal preferred by the petitioner was disallowed observing that the area for which the security clearance was applied falls under the security hold area and the Central Security Agency working under the Ministry of Home Affairs, Government of India has communicated adverse report against the petitioner. Since the report submitted by the Central Security Agency is based on its own expertise, the court has no reason to disbelieve the same. It is not the case of the petitioner that the Bureau of Civil Aviation Security suo-motu took decision rejecting the petitioner’s application, rather it appears from the facts of the case that the same is based on the report of the Central Security Agency.
It is not the case of the petitioner that the Bureau of Civil Aviation Security suo-motu took decision rejecting the petitioner’s application, rather it appears from the facts of the case that the same is based on the report of the Central Security Agency. The claim of the petitioner that input of the Central Security Agency has not been served, in my opinion, does not improve the case of the petitioner since the security input is treated as confidential and disclosure of the same might go against the national interest. 11. Under the aforesaid facts and circumstance, I see no infirmity in the impugned order dated 31.10.2019 passed by the respondent no. 2 as well as the order dated 23.07.2019 passed by the respondent no. 3. 12. The writ petition being devoid of merit is accordingly dismissed. 13. I.A. No. 11678 of 2019 also stands dismissed accordingly.