Central Administrative Tribunal - Delhi
Manjit Singh S/O Sh. Khem Singh vs Union Of India Through on 5 January, 2015
Central Administrative Tribunal Principal Bench: New Delhi OA No. 1308/2013 Reserved on: 23.09.2014 Pronounced on:05.01.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Manjit Singh s/o Sh. Khem Singh, R/o B-33, Ministry of External Affairs Housing Complex, Sector 2, Plot No.1, Dwarka, New Delhi 110 075. Applicant (By Advocates: Sh.R.V. Rameshwaran Ayyar with Sh. Ram Sankar & Sh. K. Sella Kumar) Versus 1. Union of India through Foreign Secretary, Ministry of External Affairs, South Block, New Delhi-110 001. 2. Additional Secretary (Administration), Ministry of External Affairs, South Block, New Delhi-110 001. 3. The Joint Secretary (CNV) & CVO Ministry of External Affairs, South Block, New Delhi110 001. Respondents (By Advocate: Sh. H.K. Gangwani) O R D E R By Dr. B.K. Sinha, Member (A):
The instant OA impugns the order of the respondents dated 20.03.2013 dismissing the applicant from service (Annexure A-1 page 19 of the paper book).
2. The applicant has prayed for the following relief(s):-
1. To quash and set aside the order dated 28.03.2013 passed by the respondent No.3, and direct the respondents to reinstate the applicant back in service with immediate effect.
2. To quash and set aside the order dated 28.03.2013 passed by the respondent no.3.
3. To quash and set aside the findings submitted by the enquiry officer.
4. To grant the applicant all the consequential benefits including arrears of pay & allowances.
5. Any other relief, which the Honble Tribunal may deem fit and proper in the circumstances of the case, may also be awarded to the applicant.
6. Cost of the proceedings may also be awarded to the applicant.
3. The facts of the case of the applicant, briefly stated, are that he was an employee of the Government of India working as Section Officer (Welfare) with the respondent Ministry. He was posted to the High Commission of India, Suva (Fiji Islands) vide transfer order dated 05.07.2006 (Annexure A-2). The applicant submits that the respondent Ministry permitted him to avail ex-India leave from 09th to 14th October, 2006 to be spent in Singapore, 14th to 17th October, 2006 to be spent in Wellington and 18th to 25th October, 2006 to be spent in Sydney, Australia. The respondent Ministry further permitted the applicant to take one Madu Sudan Bhargo, India-based domestic assistant, to his place of posting subject to the condition that he would have to arrange for the requisite visa/transit visa and work permit, if required under local laws, himself in respect of the domestic assistant, vide communication dated 03.11.2006 (Annexure A-3 page 24 of the paper book) under sanction from the President. On 04.12.2006, the applicant resumed duties in the Indian High Commission, Suva. On 26.02.2007, the applicant was noticed to furnish details/whereabouts of the domestic assistant with a reminder dated 05.03.2007. On 06.03.2007, the applicant submitted his reply stating that the domestic assistant Madu Sudan Bhargo had slipped away at Wellington, and that he tried his level best to search him out and was continuing with his search and would inform the authority as soon as he came to know about his whereabouts. The applicant was again directed vide communication dated 29.03.2007 to furnish point-wise response to the points contained therein on urgent basis. The applicant submitted his response to the aforesaid communication on 22.06.2007 stating that his domestic assistant Madu Sudan Bhargo was holding valid visas for New Zealand and Australia and had entered New Zealand with valid visa. When domestic assistant Madu Sudan Bhargo went missing from Wellington, the applicant thought that he would follow him as the onward flight from Sydney to Suva happened to be on 01.12.2006. When the applicant reported for duty, he informed one AK Sarkar, the then acting HOC, who, in turn, informed that the matter would be considered by the regular HOC on his return from home leave in January, 2007.
4. The domestic assistant Madu Sudan Bhargo hails from Hoshiarpur. The situation was intimated to his parents with a request to send him to Suva. On 19.11.2007, applicant was recalled by the Ministry of External Affairs to the post of Section Officer, and a charge sheet was issued to him on 31.01.2008 to which the applicant replied on 03.03.2008. On 11.11.2008, the applicant was suspended from service as a criminal offence was under investigation, and on 21.10.2009 an FIR No.R.C/S18/ 2008/E/0006 of 2008 was registered against him U/S 120(b) R/w of IPC and Section 13(2) R/w 13(1)D of Prevention of Corruption Act, 1988. On 18.12.2009, a chargesheet under departmental proceedings was filed against the applicant. On 11.01.2010, his suspension was revoked, and on 13.06.2010, he was put on notice that the President proposed to hold an enquiry against him under Rule 14 of the CCS (CCA) Rules, 1965. On 28.08.2010, the applicant was issued with a charge memo. On 13.10.2010, a preliminary enquiry was conducted wherein photocopies of listed documents were handed over to the applicant and authenticity whereof was accepted by him. The PO was directed to obtain pre-recorded statements of the witnesses. On 02.12.2010, the applicant requested for eight defence documents. The applicant had also leveled allegations against one Anil K. Anand, Head of Chancery HCI, Suva.
5. To cut the long story short, the prosecution case, after examination of witnesses including the Managing Director of M/s. Aadi Satya Travels, was closed on 24.02.2011 with direction to submit written brief. On 21.03.2011, the enquiry officer submitted the enquiry report to the respondent Ministry holding the charges against the applicant proved. The Director (CNV) vide communication dated 09.09.2011 asked the applicant to submit his representation to the findings of the enquiry officer within fifteen days to which the applicant submitted his reply on 31.10.2011. On 22.02.2013, the UPSC addressed a communication to the Secretary of the respondent Ministry recommending dismissal of the applicant from service. On 20.03.2013, the applicant was dismissed from service vide the impugned order.
6. Though a large number of grounds are listed in the OA, the learned counsel for the applicant has pressed only following three grounds:-
(i) It has been argued that the domestic assistant was having a valid visa for New Zealand thereby entitling him to visit New Zealand. The order of the respondents dated 03.11.2006 states that no facilitation would be made in respect of the domestic assistant and the applicant would be required to arrange for requisite visa/transit visa and work permit wherever required under local laws in respect of the domestic assistant. The domestic assistant hired by the applicant disappeared in New Zealand where he was entitled to travel at his own. Therefore, there could not have been any facilitation on part of the applicant.
(ii) The chargesheet also alleges that the applicant has accepted a sum of Rs. 7.00 lacs for this facilitation. However, this transaction of money is not supported by any of the preliminary witnesses. In the enquiry report, the enquiry officer has taken the position that though the transaction of money is not proved, there seems to be quid pro quo between the applicant and the domestic assistant to facilitate his entry in New Zealand and this quid pro quo could not be other than for monetary consideration as inferred from the totality of evidence and circumstances of the case. However, these are not supported by any evidence and are just based on suspicion. The learned counsel for the applicant vehemently argued that even 99% of the suspicion could not take place the place of proof (page 125 of the paper book).
(iii) The learned counsel for the applicant also submitted that the applicant has been awarded a sentence of dismissal debarring him for future employment with the Government. This is too harsh considering the gravity of the charges. No monetary transaction and/or facilitation has been proved. Hence, the punishment is disproportionate to the gravity of the charges and is certainly obnoxious to the judicial conscience.
7. The learned counsel for the respondents argued that the entire arguments of the applicant are based upon the evidence adduced in the departmental enquiry. The Honble Supreme Court has laid down in a number of decisions that the scope of judicial enquiry is limited and that the Courts cannot re-appraise or re-appreciate the evidence. The learned counsel for the respondents further submitted that the entire exercise was pre-meditated act of human trafficking. Had the applicant really intended to take the domestic assistant to Suva, he would have purchased the tickets for him upto Suva and not to Wellington. The applicant had not availed of the tickets provided by the respondent Ministry and had instead traveled on private tickets. He had further deliberately changed the itinerary in order to facilitate disappearance of the domestic assistant in Wellington. Further, domestic assistant is not normally expected to be in a position to buy the tickets himself. The applicant could have easily obtained a visa for the domestic assistant to Fiji. However, he did not obtain Visa for Fiji, thereby indicating that he had no intention to take the domestic assistant to Suva. It is further submitted that the domestic assistant hired by the applicant, aged 27 years, is son of a doctor from a noble family and his sister-in-law was employed in New Zealand. The applicant had no experience of cooking and para medical background, which was required by the applicants son. The learned counsel for the respondents also vehemently submitted that trafficking is a huge problem world over. The domestic assistant is presently being unlawfully in New Zealand for which the applicant is responsible. He did not inform the Wellington police or the Indian High Commission of the New Zealand about disappearance of the domestic assistant and would not have informed had the matter not been leaked out and he being questioned.
8. The applicant has filed a rejoinder application in which he has reiterated that he had reported the matter to one A.K. Sarkar, the then acting High Commissioner of Suva. However, the said A.K. Sarkar failed to inform the High Commissioner A.K. Anand on his return from home leave. The High Commissioner A.K. Anand instead of taking action against A.K. Sarkar for his inaction kept on threatening the applicant that he would be bundled back to India if he made a mention of his written intimation on 06.12.2006. Even applicants written replies had been drafted by A.K. Anand and he was made to sign the same.
9. When the case came up for hearing, the learned counsel for the respondents Sh. H.K. Gangwani informed this Tribunal by producing a copy of the order passed by the Sub Judge, CBI that the applicant has been sentenced to undergo rigorous imprisonment for a period of six months under Section 120-B IPC read with Section 420 IPC along with fine of Rs.1.00 lacs in default of which to undergo rigorous imprisonment for one month. The applicant has been further sentenced to undergo rigorous imprisonment for a period of one year under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 along with fine of Rs.1.00 lacs in default of which to undergo rigorous imprisonment for one month. However, the sentence was suspended till 22.01.2014 subejct to the applicants furnishing the personal bond of Rs.50,000/-.
10. The learned counsel for the applicant has argued that since the sentence has been suspended the same could not be reckoned in the instant proceedings. We have taken into account the fact that this OA is an outcome of the departmental enquiry conducted under Rule 14 of the CCS (CCA) Rules, 1965 while the sentence has been awarded in the context of a criminal case. However, the fact remains that awarding of sentence to the applicant is a later development and the provisions of Rule 19 of the CCS (CCA) Rules, 1965 which provides for imposing a penalty upon the charged employee where he has been convicted in a criminal charge or under certain exceptional charges has not been resorted to. Therefore, the fact of conviction of the applicant has no bearing whatsoever upon the outcome of this proceeding which is totally based upon the averments in the proceeding and the documents submitted.
11. We have carefully gone through the pleadings of the rival parties and also heard the learned counsel for the parties on the basis whereof, following three issues emerge which need our consideration:-
(1) What is the scope of departmental enquiry?
(2) Whether there are any infirmities or mala fides in the departmental enquiry?
(3) What relief, if any, could be granted to the applicant?
12. Insofar as the first of the issues is concerned, it is essential to lay down the scope of departmental enquiry and the power of the Courts/Tribunals to intervene in such matters. In case of S.R. Tiwari versus Union of India & Another versus R.K. Singh & Another [2013 6 (SCC) 602], the Honble Supreme Court has been at pains to state that the scope to intervene in departmental enquiry by a court/tribunal is indeed limited. The Honble Court has held as under:-
28. The role of the court in the matter of departmental proceedings is very limited and the court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record. In the matter of imposition of sentence, the scope for interference by the court is very limited and restricted to exceptional cases. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. The court has to record reasons as to why the punishment is disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. (Vide: Union of India & Ors. v. Bodupalli Gopalaswami, (2011) 13 SCC 553; and Sanjay Kumar Singh v. Union of India & Ors., AIR 2012 SC 1783).
29. In Union of India & Ors. v. R.K. Sharma, AIR 2001 SC 3053, this Court explained the observations made in Ranjit Thakur (supra) observing that if the charge was ridiculous, the punishment was harsh or strikingly disproportionate it would warrant interference. However, the said observations in Ranjit Thakur (supra) are not to be taken to mean that a court can, while exercising the power of judicial review, interfere with the punishment merely because it considers the punishment to be disproportionate. It was held that only in extreme cases, which on their face, show perversity or irrationality, there could be judicial review and courts should not interfere merely on compassionate grounds.
30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is against the weight of evidence, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide: Rajinder Kumar Kindra v. Delhi Administration, AIR 1984 SC 1805; Kuldeep Singh v. Commissioner of Police & Ors., AIR 1999 SC 677; Gamini Bala Koteswara Rao & Ors. v. State of Andhra Pradesh thr. Secretary, AIR 2010 SC 589; and Babu v. State of Kerala, (2010) 9 SCC 189).
31. Hence, where there is evidence of malpractice, gross irregularity or illegality, interference is permissible. Again in the case of GAIL India Vs. Gujarat State Petroleum Corporation [2014 (1) SCC 329], the Honble Court was faced with a question of deciding the price fixation mechanism and has held that such issues are best left to the Government itself and the Court should be cautious to make intervention in such matters. For the sake of clarity, relevant paras of the judgment are extracted as under:-
27. As many as 150 existing buyers had signed long term agreements with the appellant without any provision for review of price during the currency of contract. However, the respondent did not accept the offer and did not sign long term sale agreement. Instead, it agreed to sign the second Price Side Letter which contained a provision for review of the price before expiry of 5 years term on 31.12.2013. The respondent also insisted that RLNG price for the period from 1.4.2014 to 1.1.2019 should be mutually agreed between the parties. These terms were incorporated in the Price Side Letter sent by the respondent to the appellant vide e-mail dated 26.12.2008. The Price Side Letter which was finally signed by the parties indicate that the price of gas had been mutually agreed between the parties. This was also mentioned in letters dated 1.10.2011 and 26.12.2011 sent by the respondent to the appellant. Therefore, the premise on which the High Court recorded the conclusion that the appellant had acted arbitrarily was non-existent and on this ground alone the order under challenge is liable to be set aside.
28. We also agree with Shri Nariman that the remedy of arbitration available to the respondent under paragraph 15.5 of the GSA was an effective alternative remedy and the High Court should not have entertained the petition filed under Article 226 of the Constitution of India. The contents of the GSA, the Price Side Letters and the correspondence exchanged between the appellant and the respondent give a clue of the complex nature of the price fixation mechanism. Therefore, the High Court should have relegated the respondent to the remedy of arbitration and the Arbitral Tribunal could have decided complicated dispute between the parties by availing the services of experts. Unfortunately, the High Court presumed that the negotiations held between the appellant and the respondent were not fair and that the respondent was entitled to the benefit of the policy decision taken by the Government of India despite the fact that it had not only challenged that decision but had also shown disinclination to accept the offer made by the appellant to supply gas at the pooled price and had insisted on mutually agreed price.
29. In Arun Kumar Agrawal v. Union of India and others (2013) 7 SCC 1, this Court was called upon to consider the scope of judicial review of complex economic decision taken by the State or its instrumentalities. The Government of India, ONGC and Shell entered into a production sharing contract with a private enterprise for exploration and exploitation of crude oil and natural gas in respect of the Rajasthan Block. After due deliberation, the Government of India endorsed the decision taken by ONGC. While refusing to interfere with the decision of the Government, this Court observed:
41. We notice that ONGC and the Government of India have considered various commercial and technical aspects flowing from the PSC and also its advantages that ONGC would derive if the Cairn and Vedanta deal was approved. This Court sitting in the jurisdiction cannot sit in judgment over the commercial or business decision taken by parties to the agreement, after evaluating and assessing its monetary and financial implications, unless the decision is in clear violation of any statutory provisions or perverse or taken for extraneous considerations or improper motives. States and its instrumentalities can enter into various contracts which may involve complex economic factors. State or the State undertaking being a party to a contract, have to make various decisions which they deem just and proper. There is always an element of risk in such decisions, ultimately it may turn out to be correct decision or a wrong one. But if the decision is taken bona fide and in public interest, the mere fact that decision has ultimately proved to be wrong, that itself is not a ground to hold that the decision was mala fide or taken with ulterior motives.
13. In the case of Union of India versus Upendra Singh [1994 (3) SCC 357], the Honble Supreme Court was faced with identical issues as the one in the case in hand wherein the Honble Court, after having considered the matter, held as under:-
4. When the matter went back to the tribunal, it went into the correctness of the charges on the basis of the material produced by the respondent and quashed the charges holding that the charges do not indicate any corrupt motive or any culpability on the part of the respondent. We must say, we are not a little surprised at the course adopted by the tribunal. In its order dated 10/09/1992 this court specifically drew attention to the observations in A.N. Saxena that the tribunal ought not to interfere at an interlocutory stage and yet the tribunal chose to interfere on the basis of the material which was yet to be produced at the inquiry. In short, the tribunal undertook the inquiry which ought to be held by the disciplinary authority (or the inquiry officer appointed by him) and found that the charges are not true. It may be recalled that the jurisdiction of the central Administrative Tribunal is akin to the jurisdiction of the High court under Article 226 of the Constitution. Therefore, the principles, norms and the constraints which apply to the said jurisdiction apply equally to the tribunal. If the original application of the respondent were to be filed in the High court it would have been termed, properly speaking, as a writ of prohibition. A writ of prohibition is issued only when patent lack of jurisdiction is made out. It is true that a High court acting under Article 226 is not bound by the technical rules applying to the issuance of prerogative writs like certiorari, prohibition and mandamus in United Kingdom, yet the basic principles and norms applying to the said writs must be kept in view, as observed by this court in T.C. Basappa v. T. Nagappa . It was observed by Mukherjea, J. speaking for the Constitution bench:
"The language used in Articles 32 and 226 of our Constitution is very wide and the powers of the Supreme court as well as of all the High courts in India extend to issuing of orders, writs or directions including writs in the nature of 'habeas corpus, mandamus, quo warranto, prohibition and certiorari' as may be considered necessary for enforcement of the fundamental rights and in the case of the High courts, for other purposes as well. In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of 'certiorari' in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law."
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6. In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal v. Gopi Nath & Sons . The bench comprising M.N. Venkatachaliah, J. (as he then was) and A.M. Ahmadi, J., affirmed the principle thus :
"Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."
7. Now, if a court cannot interfere with the truth or correctness of the charges even in a proceeding against the final order, it is ununderstandable how can that be done by the tribunal at the stage of framing of charges? In this case, the tribunal has held that the charges are not sustainable (the finding that no culpability is alleged and no corrupt motive attributed), not on the basis of the articles of charges and the statement of imputations but mainly on the basis of the material produced by the respondent before it, as we shall presently indicate.
14. From the above decisions, it clearly emerges that the Honble Supreme Court has required the Tribunals/Courts to be indeed circumspect to intervene in the departmental proceedings and not to take the place of the appellate authority nor to go into re-appraisal of the evidence or the adequacy of the evidence on which the order of punishment has been passed. They can only intervene where there is a violation of any express statutory provision or gross malafide has been reflected in the conduct of the proceedings or there have been procedural laches which serve to render the entire proceeding ab initio void. In no other cases can the Tribunal intervene. This answers the issue no.1.
15. Insofar as the second of the issues is concerned, we find that the learned counsel for the applicant has argued the case as if he was arguing a criminal appeal before a court of competent jurisdiction. What he has argued requires us to re-revisit and re-appreciate the evidence submitted and also to take a note of the alleged laches and gaps in the evidence which, in light of the decisions referred to while dealing with the preceding issue, is impermissible for us. Therefore, we are not inclined to go into the controversy of re-appreciating the evidence.
16. We have looked at the departmental proceedings and find that it has been conducted as per the provisions of Rule 14 of the CCS (CCA) Rules, 1965. Even the applicant has not been able to point out any significant departure from the procedure prescribed. The applicant has made allegations of mala fide against one A.K. Anand. However, the said A.K. Anand has not been impleaded as party respondent in his individual capacity so that he could answer the allegations. Allegation of mala fide is easy to allege than to prove, and in absence of any evidence forthcoming to that effect, we deem it just to dismiss this ab initio. However, what we are compelled to take note of the fact that the departmental enquiry has been conducted with due care and caution enjoined upon the enquiry officer. Initially, charges, as stated, were the following:-
Article-I That the said Shri Manjit Singh, Section Officer in Ministry of External Affairs, while under orders of posting to High Commission of India, Suva (Fiji), entered into a conspiracy with one Madu Sudan Bhargo with the objective of facilitating the passage of Shri Madu Sudan Bhargo to Wellington, New Zealand, in the guise of his domestic assistant for a monetary consideration of Rs.7 lakh.
Article-II That the said Shri Manjit Singh, Section Officer in Ministry of External Affairs, misused his official position by deceitfully obtaining permission from the Ministry to take the said Madu Sudan Bhargo as his domestic assistant to his place of posting, i.e., High Commission of India, Suva (Fiji). However, while proceeding to Suva in November, 2006, Shri Manjit Singh deliberately left Shri Madu Sudan Bhargo in New Zealand and Shri Madu Sudan Bhargo did not reach Suva with Shri Manjit Singh.
By the above act, Shri Manjit Singh has exhibited lack of integrity, lack of devotion to duty and conduct unbecoming of a Government servant thereby violating the provision of Rules 3(1)(i)(ii) and (iii) of the CCS (Conduct) Rules, 1964.
17. As regards the charge of acceptance of money, the same has not been proved. We find that the enquiry officer has taken a judicious note of this fact and has held as under:-
28 (i) Fact of passage of Rs.7 lakhs from Shri Bhargo to CO does not seem to be supported by the primary evidence as explained above. However, there seems to be quid pro quo between CO and Shri Bhargo to facilitate his entry in New Zealand and this quid pro quo cannot be other than for monetary consideration as inferred from the totality of evidence and circumstances of the case. However, other part of the charges in the proceedings stand well proved. For the sake of greater clarity, the same is extracted herein below:-
28. The irrefutable facts supported by evidence-both direct and circumstantial which emerge from the above discussion are that:-
(a) CO knew Shri Varinder Singh, who, in turn, introduced Shri Bhargo to CO.
(b) CO engaged Shri Bhargo as his domestic assistant, which is a claim and took permission of the MEA.
(c) CO himself purchased air-tickets for Shri Bhargo only upto Wellington and Suva.
(d) CO arranged Visitor visa for Shri Bhargo to enter New Zealand.
(e) CO did not purchase air-ticket of Shri Bhargo for Suva.
(f) CO did not arrange requisite visa for entry for Shri Bhargo to Fiji Islands.
(g) CO did not inform HCI, Suva that he would be accompanied by his domestic assistant.
(h) CO did not inform disappearance of Shri Bhargo at Wellington Airport to enter New Zealand police, or HCI, Wellington, or HCI, Suva or MEA HQ suo motto.
(i) Xxx xxx xxx
(j) Shri Bhargo has interest in New Zealand as his sister-in-law living in this country.
(k) CO violated conditions/stipulations/ undertaking contained in Ex.S-8 (Repatriation Certificate); Ex.S-9 (Sanction Order for DA), Ex.S-24 which shows that he did not avail of Ex-India leave as sanctioned and changed the schedules as suited him and did not inform the change to the competent authorities.
(l) CO did not travel on air-tickets issued by the MEA; instead he travelled on his tickets because travel schedule given by MEA did not suit his design.
(m) Non-furnishing of copies of air-tickets of himself and Shri Bhargo alibi or the other seems to be false.
(n) Shri Bhargo is living in New Zealand as an alien. CO seems to be responsible for his entry in New Zealand unauthorizedly in the guise of his domestic assistant.
(o) CO seems to have hatched plan to take Shri Bhargo along only upto Wellington, as supported by unimpeachable evidence, discussed above. All other action of the CO which facilitated his entry in New Zealand and thereafter his disappearance in Wellington seems to be pre-meditated, pre-planned, and pre-designed to deceive the MEA as if Shri Bhargo was actually engaged by CO as his domestic assistant and he slipped away from the Wellington Airport of his own and CO is not at all invllved in this act of disappearance. Probabilities thrown by evidence establish that CO is responsible for not only entry of Shri Bhargo, who is living in New Zealand unlawfully as an alien; but also, not reporting his disappearance to the competent/concerned authorities at the right/appropriate time to take necessary action against him as per law. Thus COs complicity in trafficking Shri Bhargo to New Zealand seems to be established.
(p) CO who was given adequate opportunity and time to place his defence could not adduce any evidence which could either falsify evidence adduced by MEA or mitigate circumstances leading to his unbecoming behavior/misconduct.
(q) As regards para 14.2 above, these documents were not permitted as explained above. As regards para 14.3 para above, there was no pressure from the CBI. No misleading documents were produced by SW-1 and CO could not get any fact in this regard from SW-1 during cross-examination. As regards para 14.5 above, it is not a question of possession of sufficient money; but it is a question from where money with which foreign currency was purchased came. CO could not made payment through check. CO could not adduce evidence showing that he withdrew money from his account and paid to SW-1. Nothing came during cross-examination. As regards para 14.7 above, only pre-recorded statements of SW-1 have been marked as exhibits and not of other witnesses who did not turn up as explained above. Thus, no credence can be given to submissions of the CO made in para 14 above as they are not supported by evidence especially in view of the fact that CO himself was privy to the information as explained in para 36 infra. As regards second part of the charges, the enquiry officer has again held as under:-
35. As regards para 8 of SOI, there seems to be no doubt that CO has abused his official position in obtaining sanction of the MEA to take Shri Madhu Sudan Bhargo in the guise of domestic assistant deceitfully as revealed by the following inferences which could be drawn logically from the facts and circumstances of the case thrown by evidence on record, in addition to what has already been summarized under Article-I above:-
(a) Had the intention been to take Shri Bhargo to Suva as domestic assistant in real sense; CO would have purchased air-ticket for him right upto Suva, as in his own case. No credence can be given to para 14.10 supra as no question on this aspect was raised by him to SW-1 during cross-examination.
(b) During proceedings CO claimed that he is not short of money vide his request for documents from banks; whereas his claim that he purchased air ticket for Shri Bhargo from Singapore on the basis of a credit card of his friend. Both are contradictory especially when he would have got a better deal from Shri Katyal from whom CO purchased foreign currency and air tickets and with whom CO has business-cum-friendly relationship vide SW-1 deposition. What an after-thought to cover his misdeed. No credence can thus be given to this claim made by him in para 14.10 above without evidence.
(c) CO did not inform HCI, Suva that he was also being accompanied by his domestic assistant Shri Bhargo and they would land in Fiji Islands together. This intimation would have exposed him as disappearance of Shri Bhargo was pre-designed and pre-planned in New Zealand.
(d) It was not impossible for CO, especially being a senior officer of the MEA, to get the requisite visa for Shri Bhargo for Fiji Islands as CO and his wife attended the Fijian National Day Reception organized by the Fijian High Commissioner in New Delhi and thus he was family to the Fiji High Commission. Non-obtaining of visa for Shri Bhargo reflects on his mala fide intention of not taking him to Suva.
(e) Doubts arise whether person like Shri Bhargo of 27 years young, son of a doctor from a noble family, who has his sister-in-law in New Zealand, and who has no experience of cooking and para medical background, which was the need of COs son would at all eligible for hiring as a domestic servant and whether he needed such a menial job. CO did not adduce any evidence to support his claim that Shri Bhargo was really hired as domestic assistant, as already discussed above.
(f) Shri Bhargo is an alien who is at present, living unlawfully in New Zealand vide Ex.S-25, CO is not only responsible for his entry in New Zealand and leaving him there deliberately, but also, not reporting his disappearance to the concerned authorities in New Zealand and in India, at the right time to initiate necessary action against him as per law. This act of CO is highly unbecoming of his misconduct as a Government servant. The second issue, therefore, stands conclusively decided against the applicant.
18. Insofar as the third issue is concerned, we find that Rule 3 of the CCS (Conduct) Rules, 1964 requires every government servant to maintain absolute integrity. For the sake of clarity, Rule 3 of the Rules ibid is reproduced hereunder:-
3. General (1) Every Government servant shall at all times,
(i) maintain absolute integrity;
(ii) maintain devotion to duty; and
(iii) do nothing which is unbecoming of a Government servant.
19. We cannot help but reproducing the relevant paras no.38.2 and 38.3 of the enquiry report, which read as under:
38.2 Integrity implies incapable of being bribed or morally corrupted. Integrity is thus inherent quality of having sense of honesty and truthfulness in regard to ones action in the office. Integrity thus encompasses honesty, probity and loyalty. It implies uprightness of character or action. Honesty implies a refusal to deceive the organization in any way. Weighing all the facts discussed above against this standard proves that CO has failed in maintaining absolute integrity as his actions cannot be treated as above board, upright and honest.
38.3 Devotion to duty means faithfulness and loyalty to the employer. Fundamental Rule 11 provides that unless in any case it be otherwise distinctly provided, the whole time of a Government servant is at the disposal of the government which pays him and he may be employed in any manner required by proper authority without claim for additional remuneration. CO has been repatriated thrice from his places of posting vide Ex.S-1 and Ex.S-22 recalling him from HCI, Suva. Ex.S-1 is a request from the High Commissioner of India, Suva for recalling CO so that smooth functioning of the High Commission could be facilitated. Ex. S-1 also shows that CO should not be given financial responsibility and that HOC was himself handling this work and functioning as DDO. This does not reflect on his trust deficit but also reflects on his devotion to duty as he does not seem to have been found loyal, trustworthy and faithful to duty.
20. Before concluding, we would also like to make a mention that human trafficking has become a major issue in the world. Every day we read in the newspapers that the Government has been taking more and more strict measures to check human trafficking. However, we are also compelled to take notice of the fact that more and more ingenious ways have been designed to defeat the measures taken by the Government. A large number of persons holding important positions in the Government have also been found guilty of human trafficking. The Indian Embassies/High Commissions abroad provide a window to India. The officers/officials serving in these Embassies/High Commissions should be models of good conduct so that the image of India is maintained abroad. Instead, when they start indulging in human trafficking themselves, which they are supposed to check, then a serious note has to be taken. The conduct of the applicant certainly indicates that disappearance of the domestic assistant was pre-meditated and pre-designed act which had been facilitated by the applicant.
21. In view of our above discussions, we do not find the punishment of dismissal from service awarded to the applicant to be at all disproportionate or jarrying to our judicial conscience. Hence, the instant Original Application being devoid of merit is dismissed with no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/