Judgment:
Navaniti Prasad Singh, J.
1. By this writ application, the petitioner has challenged the order passed by the Assistant Commissioner of Security (CA) dated 20.4.2009 (Annexure 13), which is an order passed on post decisional hearing affirming the order dated 27.11.2008 (Annexure 3) passed by the same officer ex parte without any hearing withdrawing the security clearance granted to the petitioner- Company for doing business as Ground Handling Agency at various Airports for various Airline Operators in the country.
2. It may be noted here that as against the initial withdrawal of security clearance by order dated 27.11.2008 (Annexure 3), petitioner had preferred a Writ Petition before this Court being C.W.J.C. No. 758 of 2009, which was disposed of on 25.3.2009 (Annexure 10) by which Annexure 3 aforesaid was kept in abeyance till a decision was taken pursuant to post decisional hearing in the matter, which decision having now been taken by order dated 20.4.2009 (Annexure 13) against which the present writ application has been filed.
3. It is regretted that inspite of clear order of this Court in the earlier writ petition, the so called post decisional hearing was conducted without disclosing the grounds in support of the action taken rendering the entire exercise a empty formality as had been already indicated while disposing of the first writ petition itself.
4. It may also be noted here that when this second writ petition was finally heard and judgment was reserved, on 20th May, 2009, learned Counsel for the respondents mentioned that against the earlier judgment of this Court dated 25.3.2009, which is Annexure 10 to this writ petition, a Letter Patent Appeal has been preferred. On 10.9.2009 this Court was informed that L.P.A. was held to be infructuous and not entertained by final order passed in L.P.A. No. 706 of 2009 on 28.8.2009 and the order of the Bench hearing L.P.A. was placed on record.
5. The two questions primarily arise for consideration in the present case. Firstly, whether before security clearance granted under Rule 92 of the Aircraft Rules, 1937 is withdrawn any hearing is to be given and that too after disclosing the grounds of proposed action or not Secondly, in the facts, as disclosed to the Court, is the action, as impugned, sustainable ?
6. The statute and the statutory provision, relevant for consideration of the present case, is the Aircraft Act, 1934. Section 5 whereof authorizes the Central Government to make Rule, inter alia, for securing the safety of Aircraft operation as well as the licensing, inspection and regulation of aerodromes. It is, inter alia, with reference to the said provision that the Air craft Rules, 1937 has been framed. Part XI of the said Rule deals with aerodrome. Rule 78 thereof provides for licensing of aerodromes and Rule 79 provides for qualifications of licensee. This rule provides that a licence for an aerodrome can only be granted to a citizen of India or a Company or a body corporate having its registered office and principal place of business in India. Rule 92 provides for Ground Handling Services. It, inter alias, provides that the licensee (Aerodrome licencee) shall while providing ground handling service by itself, ensure a competitive environment by allowing the airline operator at the airport to engage, without any restriction, any of the ground handling service provider, who is permitted by the Central Government to provide such services. Provided that such ground handling service provides shall Rule be subject to security clearance of the Central Government. Rule 92 is quoted hereunder:
92. Ground Handling Services- The licensee shall, while providing ground handling service by itself, ensure a competitive environment by allowing the airline operator at the airport to engage, without any restriction, any of the ground handling service provider who is permitted by the Central Government to provide such service:
Provided that such ground handling service provider shall be subject to the security clearance of the Central Government.
7. From the rule aforesaid, being Rule 92, three things are apparent.
8. Firstly, the aerodrome operator/ licensee cannot monopolize on ground handling services. It has to permit airline operator a competitive environment without any restriction to engage there own ground handling service agents. Secondly, ground handling service provider has to seek permission and has to be permitted by the Central Government to provide services and finally, the ground handling service provider has to have security clearance in this regard from the Central Government. Thus seen, subject to security clearance, ground handling services can be hired and provided on competitive basis by any person desirous thereof. The said service is thus solely dependent on security clearance granted by the Central Government, without which the business of the ground handling service provider cannot at all carry out. It appears that a Regulation has been framed being Ground Handling Regulation, 2000, which provides for terms, conditions and eligibility criteria for ground handing agency.
9. In pursuance to the power conferred on the Central Government to grant security clearance for providing ground handling services, the matter has been entrusted to the Ministry of Civil Aviation, Government of India. A Bureau of Civil Aviation Security was created. It is the Bureau of Civil Aviation Security in the Ministry of Civil Aviation that grants security clearance, as envisaged under Rule 92 of the Aircraft Rules, 1937 aforesaid.
10. The Bureau of Civil Aviation Security (BCAS) issued Circular No. 4 of 2007 on 19.2.2007 (Annexure 1 to the writ petition). It provided specifically that no ground handling agency shall be allowed to work at the airport by any Airport Operator unless prior security clearance is obtained from the BCAS. It provided that Aircraft Operator should enter into the contract with the ground handling agencies only after prior security clearance. Airport Entry Permits to employees of the ground handling agencies would not be issued unless their background check has been completed and there is no adverse report against them. Thus seen, the matters with regard to ground handling agency to provide services at the aerodrome are regulated and that too for obvious security reason as aerodromes are highly sensitive areas for the purposes of national security, which cannot be undermined by any one much less this Court. What are the parameters for grant or refusal to grant security clearance also cannot be spelt out by this Court much less with any certainty except that those considerations have to be on basis of objective consideration rather than purely subjective consideration of any individual.
11. Petitioner - Company is a Company incorporated under the provisions of the Companies Act incorporated in the year 2006 having its registered office at Patna formed, inter alia, with the object of providing ground handing services at aerodromes. In view of the Rules and Regulations, as noted above, it made an application for security clearance. As envisaged under Rule 92 aforesaid the Bureau of Civil Aviation Security, Ministry of Civil Aviation, Government of India after full background checks having found nothing adverse, the Company was granted security clearance for a period of five years from 17.4.2007 by the Bureau of Civil Aviation Security (Annexure 2). Thus normally the security clearance was available to the petitioner upto March, 2012. On the strength of the said security clearance, the petitioner contracted with, inter alia, Jet Airways to act as ground handling agent at various aerodromes in the country including Patna.
12. All of a sudden, on 27.11.2008, Company was informed about withdrawal of security clearance by the Assistant Commissioner of Security (CA) in the Bureau of Civil Aviation Security (Annexure 3 to the writ petition). The only ground given in the said communication is that the competent authority has decided to withdraw the security clearances on grounds of safe guarding of civil aviation operations and national interest. It is not in dispute that before withdrawal of security clearance, neither was any explanation was asked for from the petitioner nor any enquiry was conducted to the knowledge and the involvement of the petitioner. The effect of this withdrawal was that the entire infrastructure that the petitioner had made and the employment it had offered to over 150 persons became useless and redundant. It effectively killed the petitioner organization. It not only amounted to withdrawal of existing work of the petitioner but prohibited the petitioner from doing any such work in India. The business of the petitioner is vanished into thin air. This is what brought the petitioner to this Court at the first instance by filing the first writ petition being CWJC No. 758 of 2009. When the said writ petition was taken up, initially no interim protection was granted to the petitioner as apparently the action was taken on ground of national security but when repeated adjournments did not result in the respondents filing counter affidavit, this Court was persuaded to pass an interim order on 9.2.2009 in the writ petition (Annexure 9). Even thereafter it took quite sometime for the respondents to file a counter affidavit.
13. In the counter affidavit, as filed then, as also in the counter affidavit filed in these proceedings, the primal stand of the Central Government is that there being consideration of national security, they are neither required to provide any pre decisional hearing before decision to withdraw security clearance is taken, nor they are obliged to disclose the grounds on which such decision is taken. The Bureau of Civil Aviation takes a stand that Investigation Bureau (IB) in the Ministry of Home Affairs, Central Government, had formed an opinion as to adverse report against the petitioner which itself justifies the action though some of the facts are recorded in the earlier judgment of this Court. At the cost of repetition I may note that the respondents themselves relied on a recent judgment of the Division Bench of the Bombay High Court in Writ Petition (LODG) No. 420 of 2009 Akbar Travels of India (Pvt.) Ltd. v. Union of India and Ors. disposed of on 12.3.2009, which was a case of non grant of security clearance by the Bureau of Civil Aviation Security to a ground handling agency in which decision the Division Bench of the Bombay High Court presided by the Chief Justice held that at least a post decisional hearing is must. They had called for the file relating to the decision, which were produced for court's perusal. They directed for a post decisional hearing after disclosure of grounds.
14. In view of the said judgment, as brought on record by the respondents themselves, this Court directed the respondents to furnish the report of IB for perusal of the Court on which the impugned order was based, which was said to be Top Secret and which could not be disclosed in public interest. Respondents fairly agreed to supply the same in a sealed cover for court's perusal. A perusal thereof shocked the Court. It was nothing but a two lines communication disclosing no grounds nor any information except that IB had noticed adverse activity in respect of the petitioner which were pre judicial to the peaceful functioning of the airport at Patna and Ranchi and Ministry of Civil Aviation/Bureau of Civil Aviation Security were to take appropriate action. The Court wonders what was so sensitive secret to classify this as Top Secret, as it contains no information whatsoever or was it matter top secret so as not to divulge that there was no information on which action was based. Court then insisted on disclosing to it the report on which this opinion was formed. Very fairly respondents obliged on both occasions i.e. in course of first writ proceeding and in course of the present writ proceeding as well. The information that was available is an apology in support of the action. There was nothing at all to justify any such emergent action so as to avoid pre decisional hearing. However, decision having been made, this Court directed in the first writ petition (Annexure 10) the authorities to give a post decisional hearing clearly pointing out that the ground for taking decision must be disclosed so that petitioner can counter them. It specifically pointed out in the judgment that giving hearing without disclosing ground would be an empty formality because in absence of ground being disclosed what is the petitioner to contradict and what is the petitioner to defend against. This Court pointed out that neither the source of information has to be disclosed nor the exact information but at least a gist of information, which formed the ground for such a drastic action should be disclosed. A reference to the judgment of this Court would disclose that it had indicated virtually that the material disclosed to the Court, in fact, did not justify the action at all but left it to the better judgment of the authority to reappraise themselves of the situation.
15. Regrettably, as had been noticed much earlier by the Apex Court in the case of K.I. Shepherd and Ors. v. Union of India and Ors. since reported in : AIR 1988 SC 686 in particular para 16 of the report that it was a common experience that once a decision has been taken there is a tendency to uphold it and a representation may not really yield any fruitful purpose. This judgment was also noticed as a caveat to the authorities yet this post decisional hearing was equally farce. Inspite of specific request made by the petitioner for disclosure of ground, the same was refused. Petitioner was required to defend a case, which was never disclosed to it and it is now submitted that principle of natural justice was fully complied with. This is what has brought the petitioner to this Court.
16. The irresponsible manner in which the entire situation has been handled is also apparent from the fact that the judgment of this Court was delivered at the first instance on 25.3.2009 (Annexure 10.) and the so called hearing without disclosure of ground concluded on 20th April, 2009 when the impugned order pursuant to so called post decisional hearing was passed. The LPA against the said judgment was preferred on 19.5.2009 challenging the order of this Court dated 25.3.2009, one month after the final order was passed by the Bureau of Civil Aviation Security when the order had already been implemented and it is for that reason that the LPA was not entertained as is apparent from order dated 28.8.2009 passed in the said LPA by a Division Bench of this Court.
17. In view of the statutory provision, the first question that has to be answered is whether a hearing is necessary before action is taken. It is too late in the day to urge that before taking action, which has severe adverse civil consequences, no hearing is to be given. As has been repeatedly held by the Apex Court, Article 14 of the Constitution is an anti thesis to arbitrary action. Principles of natural justice has to be read wherever the consequence of any administrative action has adverse civil consequence unless by implication or specifically they are excluded. There is no dispute in the present case that under no provision they are excluded. Thus, normally the principle of natural justice would apply to all cases where security clearance having been granted is withdrawn but there may be exception. As noted above, while discussing the scheme of the statutory provision, security clearance is a matter of national security. If there are justifiable facts and national security is threatened then a party cannot insist nor any Court can insist on compliance of principle of natural justice as a condition precedent to take adverse action. At the cost of repetition, it is stated that there must be facts justifying the action without compliance of principle of natural justice. It cannot be on any ipse dixit of any authority or on purely subjective satisfaction dehorse objective consideration, for if that is permitted then the right enshrined in the Constitution including Articles 14, 19 and 21 would be in serious jeoparde, which would be anti constitutional. It is only to that extent and in that situation hearing and disclosure of ground be restricted and not otherwise. Thus, the answer to the first query.
18. Now coming to the second question. The fact on which the action was proposed by the IB have been disclosed to the Court in a sealed cover. At the very first instance, in the very first writ petition, this Court had adversely commented on the facts without dealing with in detail in the hope that in course of post decisional hearing, the gist of fact would be disclosed to the petitioner and authority would reconsider the matter dispassionately in accordance with law. That hope was totally belied. Inspite of clear caution by this Court that a post decisional hearing or for that any matter, hearing without disclosure of ground would be empty formality, yet again the respondents in course of post decisional hearing have flatly refused to disclose the ground and yet expected the petitioner to defend himself against the allegation and/or fact not within his knowledge. This Court fails to understand that for what purpose was a post decisional hearing.
19. In my view, having given the respondents sufficient opportunity to act in accordance with law as was done by the Apex Court in the case of K.I. Shepherd and Ors. (supra), this Court considered its duty to consider the material on record, as disclosed. The first thing that this Court would like to put on record that there is nothing at all mentioned for consideration that such an emergent action was required that hearing could not be given. On that count alone there could not be a waiver of pre decisional hearing. There was no emergency of any kind. Havens would not have fallen nor national security jeopardized in any event if pre decisional hearing was given. There are no fact to justify such a drastic action. Thus, the very first order was in conflict with the principle of natural justice and not in accordance with law. Thereafter even when this Court directed for a post decisional hearing after disclosure of grounds, no grounds are disclosed and the earlier order is affirmed by the same authority.
20. Now Court can consider the grounds, as disclosed to it in sealed cover. The sequence of event, as noted above, can lead to one conclusion, that is, over anxiety of the respondents in not disclosing the ground. The reason now appears to be obvious. The reason is not of any national security but apparently is that disclosing the ground would cause serious embarrassment to the authority, who took the decision. Without mentioning the fact verbatim all that I can say is that merely because petitioner has good relation with political leaders or has body guards can be no ground for threat of national security. Pleasing politicians and Bureaucrats to maintain good relations to get contract works done expeditiously can not be a matter of national security. Uncorroborated and unconfirmed report of its alleged involvement in criminal cases cannot be a question involving national security. It cannot also be a ground for withdrawing the security clearance. Though the Court was tempted to quote extensively from the reports, as submitted to it, it is advisably not doing so, for the reasons mentioned above.
21. The reports, as submitted in a sealed cover is being returned. True photocopies thereof is being resealed and would form part of record and retain with record. They would be opened only pursuant to any judicial order passed in any judicial proceeding.
22. All that this Court can say and hold on the facts, as disclosed to this Court is that there was no case of such an emergency that the security clearance could be withdrawn without hearing nor was it a case where authorities were justified in with-holding the ground on which such action was taken nor it is a case where it can be said to be threat of national security in any manner on objective considerations of the matter.
23. Here I may note that there are large number of cases and case laws dealing with preventive detention on the ground of national security. Even in those cases it has always been insisted that though details of sensitive reports are not to be disclosed but at least a gist of allegation has to be disclosed, which formed the grounds for preventive detention. This is more so, when orders directly affect the constitutional right and are subject to judicial review. In the present case, not only was the entire decision making process contrary to law, the decision itself had really no leg to stand on the facts, as disclosed to the Court.
24. In these regard I may also refer to a decision of the Division Bench of Delhi High Court in the case of A.K. Sharma and Anr. - Appellants v. Director General of Civil Aviation, Delhi and Ors. - Respondents, since reported in : AIR 2002 Delhi 357, which was a case arising from revocation of licence/permit for carrying on aviation business in terms of Aircraft Act, 1934. In that case also without a pre decisional hearing, licence to operate services was cancelled. Court deprecated the same and held the action to be bad. They further held that post decisional hearing was to be given only when there was an emergent situation permitting action without hearing but as such an emergency was not there at all, the question of post decisional hearing did not arise. I can usefully quote a sentence from the judgment aforesaid, which is to be found in para 34 of the report:.It is one thing for the Respondents to say that they are concerned about public safety and national security and another thing to use these phrases as a stick and a club to bring to heel those over whom they exercise administrative suzerainty.
25. Though not material for this case but as question about national security having been raised, I may notice one aspect. In para 37 of the writ petition, petitioner has specifically stated that some ground handling agencies have been permitted to operate at sensitive airports at Guwahati and Dibrugarh for quite sometime without any security clearance. To this, the respondent's reply is in para 46 of the counter affidavit wherein it is stated that those persons were operating as ground handling agency before instructions, as contained in Circular No. 4 of 2007 was issued and have not come adverse notice of the Bureau. Regrettably, the Circular aforesaid, which is Annexure 1 to the writ petition, in no certain term lays down that without security clearance no one shall be permitted to operate. Admittedly in sensitive area like Guwahati and Dibrugarh, ground handling agencies are allowed to operate without any such security clearance, which itself is a matter of concern if the authorities are so sanguine about national security.
26. Thus, I have no option but to set aside the impugned order dated 20.4.2009, as contained in Annexure 13 to the writ petition, which affirmed the order dated 27.11.2008, as contained in Annexure 3 and allow the writ petition.