Delhi High Court
Mahaveer C. Singhvi vs Union Of India & Ors. on 29 August, 2008
Author: Sudershan Kumar Misra
Bench: Manmohan Sarin, Sudershan Kumar Misra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Writ Petition (Civil) No.8091/2003
% Date of Decision : August 29, 2008
Mahaveer C. Singhvi ...Petitioner
Through : Mr. Jayant Bhushan,
Sr. Advocate with
Mr. Raj Kumar Sherawat &
Mr. Rajesh Goswami,
Advocates
Versus
Union of India & Ors. ...Respondents
Through : Mr. P. P. Malhotra,
Addl. Solicitor General
with Ms. Monika Garg &
Ms. Parminder Kaur,
Advocates
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SARIN
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether Reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported
in the Digest ? Yes
SUDERSHAN KUMAR MISRA, J :
1. After an exceptional academic career, Mr. Mahaveer Singhvi was appointed to the Indian Foreign Service on 20.9.1999. He served for nearly two years and eight months. He was discharged from service on 13.6.2002. He then moved the Central Administrative Tribunal praying that the said order be quashed and that he be reinstated in service with full consequential benefits. This application was dismissed by the WP(C) No.8091/2003 Page No.1 of 30 Tribunal. Dissatisfied by the decision of the Tribunal, Mr. Singhvi has come before this Court praying that the order passed by the Central Administrative Tribunal, Principal Bench, New Delhi on 4.9.2003 be set aside in exercise of our jurisdiction under Article 226 of the Constitution of India, and that the reliefs sought by him before the Tribunal be granted.
2. A perusal of the impugned decision rendered by the Tribunal would show that the respondents had made available the relevant departmental file in original to the Tribunal for its perusal. After examining the record, the learned Tribunal has concluded in paragraph 17 thus:
"In our opinion, it clearly indicates that though the abovesaid facts were available before the authorities, still no enquiry had been held. No findings were arrived at. The employer was not inclined to conduct the enquiry but did not want the applicant to continue. When such is the situation, it would only be a motive rather than the foundation for discharging the services of the applicant."
It further concluded in the same paragraph as follows:
"The facts, therefore, would show that it cannot be termed in the facts of the present case that the order casts any stigma or that the facts available show the foundation for termination/ discharge of service of the applicant. It would only be a motive. Resultantly on that ground, the application cannot succeed."
3. Unfortunately, we find that there is no discussion by the learned Tribunal of the various notings and conclusions reached by the officers of the respondents at different levels in the Ministry. The issue whether misconduct was the foundation for the impugned order removing the petitioner from service, or whether it was merely a motive for the same, appears to have WP(C) No.8091/2003 Page No.2 of 30 been dealt with rather cursorily. To our mind, a decision on this aspect of the matter would necessarily require a deeper analysis since it entails examination of the facts and circumstances that led to the eventual decision of 13.6.2002, discharging the petitioner from service.
4. However, since the file of this writ petition has become bulky and unmanageable on account of frequent filing of documents, affidavits, submissions, revised written submissions etc., the petitioner and his counsel reviewed the case and on 21.7.2007, it was stated that, "all other pleadings and documents filed in this case, may be ignored, except the fourth additional affidavit filed by the petitioner and the revised submissions dated 21-07-2007". We, accordingly, proceed to do so.
5. The Vajiram and Rao Institute is situated at Rajinder Nagar, Delhi. It specializes in coaching aspirants for the Civil Services Examination. Like many others, the petitioner also availed of its services in 1998. There, the petitioner became acquainted with one Ms. Arleen Chadha. Their relationship is best described in his own words, used in a complaint made by him later on to the Police, where he says; "initially I had a liking for her. There was an on and of relationship..".
6. Ultimately, the petitioner obtained a very high rank in the Civil Services Examination, 1998 and, in September 1999, he was allocated to the Indian Foreign Service. It is noteworthy that out of the 9 officers allocated to the Indian Foreign Service that year, the petitioner was placed at serial number 5 in the WP(C) No.8091/2003 Page No.3 of 30 order of seniority. Consequent upon this, the petitioner was given an offer of appointment on 21.9.1999. Thereafter, the petitioner completed the foundation training as also the training imparted by the Foreign Service Institute, Ministry of External Affairs, and came to be attached for six months to the East Asia division of the Ministry of External Affairs on 1.1.2000.
7. As is well known, appointment to the Civil Services in India is hugely coveted, and the Indian Foreign Service is the „creme de la crème‟ thereof. The petitioner alleges that after his selection and appointment to the Indian Foreign Service, Mrs. Narinder Kaur Chadha, who is the mother of Ms. Arleen Chadha, wrote to his father on 4.6.2000 proposing a marriage between her daughter and the petitioner. Along with the letter, bio data and photographs of her daughter, Arleen, were also attached. Here, Mrs. Chadha has disclosed that her daughter, aged 25, is a teacher in the MCD Primary School in Rajinder Nagar, and that her father, who is described as an, "ex-defence personnel", was the late Mr. Mohinder Pal Singh Chadha. She also described her daughter's hobbies and other activities as, "travelling, dancing, swimming, horse riding, fashion shows, anchoring, and modeling etc." it would be useful to reproduce Mrs. Chadha's aforesaid letter of 4.6.2000, which is as follows;
"Shri T.C. Singhvi Sahib, I am sending herewith, a copy of the bio-data and a few photographs of my daughter Ms. Arleen for the matrimonial alliance with your brilliant IFS son Mr. Mahaveer Singhvi.
Maahaveer and my daughter are both known to each other and were studying together. Mahaveer must have talked to you about my daughter and us.WP(C) No.8091/2003 Page No.4 of 30
It will be my pleasure to talk further in the matter, if the proposal suits you. I shall be waiting for your response.
With regards, Yours Sincerely, (Mrs. Narinder Kaur Chadha)"
8. It seems that this proposal did not find favour with the petitioner's parents who, it appears, come from a small town in Rajasthan. Mr. Singhvi contends that this refusal by his parents to entertain the aforesaid marriage proposal greatly enraged and infuriated Mrs. Chadha and her daughter, Arleen. According to him, they now began to nurse a grudge against him.
9. Mr. Singhvi states that till January 2001 things kept moving smoothly on the career front. By this time, he had, inter alia, completed the foundation training, as also the attendant examination, with 73% marks. He was rated "Outstanding" and letters of appreciation were also awarded to him. After that, the petitioner completed the one-year training course at the Foreign Service Institute with 97% marks. There also, he was rated "Outstanding". He thereafter cleared the prescribed appreciation course in Parliamentary Procedures etc. in the "A" grade.
10. However, in the matter of allocation of a foreign language in which he was required to attain proficiency, and for which the officers of the Indian Foreign Service are posted at appropriate destinations abroad, some complications arose. According to the petitioner, hitherto, the criteria for allocation of foreign- language had always been merit cum choice. Since there were WP(C) No.8091/2003 Page No.5 of 30 nine officers in the batch this time, a total of nine slots were made available for studying six foreign languages. The availability of slots was indicated as follows; French -- 2 slots; German -- 1 slot; Russian -- 2 slots; Chinese -- 1 slot; Spanish -- 1 slot; and Arabic, -- 2 slots. The petitioner is stated to have indicated his language preference as, French, German, Arabic, and Spanish, in that order. According to the petitioner, since he was placed at serial number 5 in order of seniority in the batch consisting of 9 officers, the four officers senior to him were to be accommodated first. They were allotted French, Russian, Chinese and French respectively. Consequently, the two slots for French already stood exhausted. Since the slot for German was still vacant and his second preference happened to be German, the petitioner ought to have been allotted that language. However, to his surprise, on 29.1.2001, he was allotted Spanish instead.
11. The petitioner states that his efforts to have this rectified ultimately resulted in a serious animosity with the second respondent, Mr. P.L. Goyal, who happened to be the Additional Secretary at that time. This happened because, after a fruitless meeting with The Joint Secretary, the petitioner met Mr. Goyal who informed him that for his batch of officers, the criteria for allocation had been changed. He said that this time, the criteria adopted was to grant the preferred language to officers by placing them in a new order, which consisted of choosing one from the top of the list, and the next from the very bottom, of the list of nine officers. By this method, the order of precedence for WP(C) No.8091/2003 Page No.6 of 30 the allocation of foreign language to the officers in the petitioner's batch became 1, 9, 2, 8, 3, 7, 4, 6 and lastly, 5. Since the petitioner was placed at S.No.5, he was therefore, relegated to the very last place in order of precedence. When the petitioner protested against this utterly irrational method, he was warned by Mr. P.L. Goyal against raising any protest in this matter. Undaunted, on 31.1.2001, the petitioner submitted a representation to the Foreign Secretary. However, he received no reply. To make matters worse, the next day, i.e., on 1.2.2001, a news article titled, "Sugar Daddy rescues tongue-tied IFS officer", was published in The Times of India criticising this process which, according to the paper, was prompted by a desire to accommodate some other highly connected officer, junior to the petitioner, who also wanted German. The newspaper also carried a caricature lampooning the aforesaid Additional Secretary, Mr. Goyal. The petitioner says that although he was not responsible for this article, nevertheless, all this infuriated Mr. Goyal and other superiors, who then made up their mind to undermine his career. According to the petitioner, on 1.2.2001 itself, in the same context, a noting was made on his file to the effect that the petitioner was indisciplined. The petitioner claims that thereafter, systematic steps were taken by the respondents to undermine him including, inter alia, a memo dated 28.2.2001, accusing the petitioner of bringing political pressure for allocation of foreign-language, thus committing misconduct. He states that although this accusation was brought in the aforesaid memo, none of the supporting particulars were furnished to him. WP(C) No.8091/2003 Page No.7 of 30 In fact, the respondents produced a letter allegedly written by a Municipal Councillor to the Minister in this behalf before the Administrative Tribunal for the first time. He claims that this letter, whose contents were never disclosed to him, was an obvious fabrication, and that this suppression was mala-fide.
12. The petitioner's case is that while on the one hand, the Additional Secretary, Mr. P.L. Goyal, as well as the Ministry, had turned inimical towards him for the aforesaid reasons; at about the same time, i.e. on 4.2.2002, he was constrained to file a complaint against the aforesaid Ms. Arleen Chadha and her family alleging that she has been continuously blackmailing him with the threat that either he gives her money or marries her, otherwise she will destroy him. She also threatened to lodge false complaints against the petitioner in case he refused to succumb to her wishes. She claimed to know many influential persons in the Ministry through whom she could ensure that her threats were carried out. In that complaint, the petitioner also adverted to the fact that Ms. Arleen had sent a marriage proposal to his parents through her mother, but his parents did not agree; and later on, he had also come to know about, "her dubious activities and life style". He stated that she had been threatening him for the last several months, and that he was filing this complaint after being accosted by the said Ms. Arleen Chadha, Manpreet Singh and her brother, Mahender Pal Singh. According to the petitioner, immediately thereafter, on 6th February, 2002, one Mr. Manoj Arora was sent by Ms. Arleen Chadha with the threat that he should withdraw his aforesaid WP(C) No.8091/2003 Page No.8 of 30 complaint. He states that this visit of Mr. Manoj Arora would be evident from the visitors' register of the Ministry of External Affairs Hostel, where he was residing at that time, and that despite a direction by the Central Administrative Tribunal to that effect, the respondents failed to produce the same. The petitioner‟s case in short is that by an unhappy coincidence, these two inimical strains combined, and an unholy alliance was forged to destroy his promising career.
13. According to the petitioner, ultimately, a retaliatory complaint was filed by Mrs. Narinder Chadha, mother of Arleen Chadha before the Minister of External Affairs against the petitioner on 7.2.2002. This complaint, inter alia, states that the petitioner was initially threatening her daughter Arleen and was now threatening her entire family. She alleges that he met her daughter in the year 1997 and began harassing her "mentally and use to pass comments which affects the modesty of a woman". She also states that after demise of her husband in 1995, she is alone and helpless, "and is running from pillar to post," to save her children and her family. She states that the petitioner has been continuously threatening her family, "including threats on life." Without spelling out the specific demands of the petitioner she states that he has been doing this, "to derive specific motives, which is best known to him." She also alleges that as a result of the petitioner‟s actions, her daughter is demoralized and disturbed and that her health has deteriorated. She further states, "any proposal for her marriage could not be materialized due to this development." By that WP(C) No.8091/2003 Page No.9 of 30 complaint, she requested that action be taken against the petitioner for misusing his official position. The Minister also appears to have granted a meeting to Mrs. Narinder Chadha and Arleen Chadha on the same day. They were then sent by the Minister to the Joint Secretary and the Director, Vigilance in this regard. The said complaint was also sent by the Minster to the Vigilance Division on 8.2.2002 with a direction that the matter be attended to at the earliest. The Joint Secretary and the Director, Vigilance heard both of them and suggested that they produce some evidence against the petitioner. Thereafter, on 18.2.2002, the Vigilance Division appears to have conducted some enquires regarding the petitioner's conduct and character from the Joint Secretary (FSI). In reply, the Joint Secretary (FSI), i.e. Foreign Service Institute, reported that the petitioner was with the FSI during the year 2000, and that for that period, he obeyed orders and instructions given to him and came across as an alert and active individual. He also mentioned that his parents were living in Jodhpur and were keeping a very poor health. In other words, nothing adverse was stated therein.
14. It appears that on the very next day, i.e., 19.2.2002, the Joint Secretary (Vigilance), held further discussions with the Joint Secretary (Administration) and consequently, a memorandum was issued to the petitioner on that day alleging unauthorised absence. According to the petitioner, the same was anti dated as 14th February, 2002 and the allegations made therein were vague and lacking in material particulars and had been allegedly made with the mala-fide intention of fabricating a WP(C) No.8091/2003 Page No.10 of 30 case against the petitioner. The petitioner duly denied these allegations stating that he had been present throughout. In this connection, the petitioner also alleges that his reply to the said memo was also forwarded to the Joint Secretary (Vigilance) on 22.2.2002.
15. Ultimately on 25.2.2002, the aforesaid Mrs. Narinder Chadha is also stated to have submitted further, "evidences", against the petitioner including a copy of a list of phone calls allegedly made by the petitioner to her daughter, Arleen from 12th to 29th February, 2002; and an alleged tape recording of some of the said conversations. It seems that thereafter on 8.3.2002, the Director (Vigilance Division) prepared a formal inquiry report stating that there are some complaints of misconduct against the petitioner, and that the Minister desired an action against the petitioner. In this connection, Director (Vigilance), Ms. Narinder Chauhan recorded, inter alia, that;
"the undersigned and the CVO have also
thoroughly convinced themselves of the
complaints made against Sh. Singhvi."
She further states that;
"the acts of Shri Singhvi constitute serious misconducts: trying to bribe a Government Servant; lack of devotion to duty; and stalking, threatening and harassing and using filthy language against Smt. Chadha and her family by misusing his official position."
16. On 5.4.2002, the Additional Secretary, Shri P.L. Goyal noted that, as desired by the Minister, the petitioner was called for a hearing in the presence of the Joint Secretary (CNV) and Under Secretary (FSP). He further noted, inter alia, that the WP(C) No.8091/2003 Page No.11 of 30 hearing in no way provided additional mitigating circumstances as far as both Shri Singhvi's conduct or performance is concerned. The same was also endorsed by the aforesaid Joint Secretary in his note. Thereafter on 23.4.2002, the Director, Shri R.K. Bajaj moved a proposal to the Central Vigilance Commission to terminate the services of the petitioner. There, he stated that this proposal has the approval of the Minister of External Affairs. In that proposal, two major aspects have been referred; one is with regard to the written complaint from a Desk Officer in DOPT that the petitioner has threatened him and tried to bribe him to effect a change in allotment of his service from IFS; the second is with regard to the aforesaid written complaint from Mrs. Narinder Kaur Chadha claiming that her daughter was being harassed by the petitioner. The complaint seems to have been fully believed. The note states as follows, "It is in this background that MEA have concluded that Shri Singhvi has exhibited misconduct through "stalking, threatening and using filthy language against Smt. Chadha and her family by misusing his official position". It is, therefore, possible to agree with MEA that Shri Singhvi has exhibited conduct unbecoming of a government servant."
17. It is also stated that Shri Singhvi has been unable to give any satisfactory explanation to both these allegations. This proposal to terminate the service of the petitioner was ultimately approved by all the superior authorities. It is noteworthy that in para 4.27 of the reply filed by the respondents before the Central Administrative Tribunal, the respondents have, inter alia, stated as follows :-
WP(C) No.8091/2003 Page No.12 of 30
"However, as already mentioned, the applicant had been discharged from service, primarily for his misconducts in office.........."
In addition, in the same paragraph, whilst referring to the complaint of Mrs. Chadha, it is stated that he, "was threatening, abusive and used explicitly sexually-coloured remarks against the daughter of Mrs. Chadha". According to the respondents, in this background, "the point for consideration is that a Government servant, who should be upholding the law, when engages in such an illegal act, his misconduct becomes even more grave. It reflects on his integrity, honesty and trustworthiness." This pleading constitutes an unequivocal admission on the part of the respondents that the impugned order 13.6.2002 has been issued because of the petitioner‟s misconduct and that misconduct is the very foundation of the impugned order.
18. In short, Mr. Singhvi contends that the Additional Secretary, Mr. P. L. Goyal and others were already nursing a grudge against him for the aforesaid reasons, and once Mrs. Chadha's complaint landed in their laps, like manna from heaven, steps to drum him out of the service began to move apace. He contends that whatever inquiries may have been carried out by the respondents, to convince themselves of the truth about such serious allegations, they were all behind his back and no proper notice or opportunity to respond to these allegations was given to him. It is also contended that the meeting allegedly held by the Additional Secretary on 3.4.2002, where the petitioner is stated to have been given a personal WP(C) No.8091/2003 Page No.13 of 30 hearing, never happened. In his additional affidavit, as well as the synopsis of arguments filed before this Court, he categorically states that the recording about the petitioner being given an opportunity and the petitioner admitting the allegations against him, are all false and mala fide. In this connection, he states that, "petitioner never received any notice from the Ministry to attend any kind of personal hearing on any matter whatsoever and the petitioner did not attend any personal or other hearing." It is the petitioner's submission that the aforesaid record shows indubitably that the termination of the petitioner was on the ground of alleged misconduct. Even the CVC has also concluded that the petitioner has exhibited lack of integrity, lack of devotion to duty and conduct unbecoming of a Government Servant. Moreover, it was also recorded by the Additional Secretary on 23.4.2002 that the allegations relate to moral turpitude. Significantly, the petitioner gained access to all these records through the Right to Information Act. After going through the records produced and the attendant circumstances, we have no doubt that his allegations cannot be termed fanciful or entirely without foundation.
19. Before this Court, the learned Addl. Solicitor General stated that this is a case where admittedly, no regular inquiry has been held. According to him, it is a case of discharge simplicitor as per the terms of the contract and the petitioner, being a probationer, had no right to the post. According to the respondents, the impugned order dated 13.6.2002 discharging the petitioner from service is neither stigmatic nor punitive in WP(C) No.8091/2003 Page No.14 of 30 nature since neither any inquiry was conducted nor were any findings arrived at against the petitioner. He states that there was a controversy with regard to the allocation of foreign language and that the petitioner was unhappy with the allocation of Spanish and wanted German instead. In addition, there are allegations about the petitioner not having joined at Madrid which resulted in a confidential memo being issued to him. He also states that the petitioner had been absenting himself from work without permission. He then states that a written complaint was received on 7.2.2002 from Mrs. Narinder Kaur Chadha by the Minister of External Affairs alleging that the petitioner was harassing, abusing and stalking her daughter. He says that looking at the serious allegations in the complaint, the Government has, in fact, acted leniently in merely discharging him although he deserved to be dismissed. As regards the aforesaid meeting taken by the Additional Secretary along with others on 3.4.2002, Mr. Malhotra clarified that the same was not a formal inquiry and it was merely to see whether the petitioner had any prima facie explanation. We are unable to agree with the contentions of the learned Additional Solicitor General. The record shows that clear findings have been recorded against the petitioner. It is not as if there was only some suspicion which was entertained, and no definite opinion was framed. Apart from the record, even the pleadings of the respondents filed before the Central Administrative Tribunal leave us in no doubt that it is the respondents‟ own case that the impugned orders removing petitioner from service are a result of what the respondents WP(C) No.8091/2003 Page No.15 of 30 themselves consider to be serious misconduct. In other words, definite findings as to the grave misconduct committed by the petitioner were certainly arrived at by the respondents.
20. Nevertheless, what has to be determined is whether, under the circumstances, the impugned order discharging the petitioner was founded on his misconduct or not, and thus, whether the court can go behind such an order of dismissal. The learned Addl. Solicitor General has relied on the case of S. P. Vasudeva Vs. State of Haryana, (1976) 1 SCC 236, for the proposition that where the order of discharge does not ex facie show that it was done as a measure of punishment or does not cast any stigma, the courts will not normally go behind that order to see if there were any motivating factor behind that order. To our mind, this judgment does not debar the courts from lifting the veil and going behind such orders, if the courts deem it fit to do so. In Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha & Ors., AIR 1980 SC 1896 the Supreme Court held that the form or the language in which the order of discharge is couched is not conclusive. The Court will lift the veil to see the true nature of the order. In this context, while examining when misconduct as the motive for the discharge order becomes the foundation for the same, the Supreme Court held as follows:-
"53.... a termination effected because the master is satisfied that of the misconduct and of the consequent desirability of terminating the service of the service of the delinquent servant, it is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a WP(C) No.8091/2003 Page No.16 of 30 case the grounds are recorded in a different proceeding from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt of the, the master abandons the enquiry and proceeds to terminate..."
The Court further held that:
"54. On the contrary, even if there is suspicion of misconduct the master may say that the does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter..."
21. The learned Addl. Solicitor General has, for this aspect of foundation and motive, relied on a judgment of the Supreme Court in Parshotam Lal Dhingra Vs. Union of India, reported as 1958 SCR 821, wherein it was held that :-
"28...........The use of the expression „terminate‟ or „discharge‟ is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to. If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Art. 311, which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant."
A reading of the above para shows that the two tests to determine whether the government servant has been punished and the order terminating his service, though innocuous, is one WP(C) No.8091/2003 Page No.17 of 30 of dismissal, are disjunctive and alternative to each other. What must be seen is either the servant had a right to the post, and even if he did not, if it can be shown that he has been visited with evil consequences nevertheless, it must be held that he has been punished.
22. In the context of the services of a probationer, a Special Bench of seven judges of the Supreme Court in Shamsher Singh Vs. State of Punjab AIR 1974 SC 2192 held that the decisive factor is the substance of the order and not the form in determining whether the order of discharge is stigmatic or not. It was further held that:
"68. No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case..."
The Court also held;
"80. The form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Art. 311. In such a case, the simplicity of the form of the order will not give any sanctity. That is exactly what has happened in the case of Ishwar Chand Agarwal. The order of termination is illegal and must be set aside."
In that case, the Supreme Court made a very important observation as under :-
"64. Before a probationer is confirmed the authority concerned is under an obligation to WP(C) No.8091/2003 Page No.18 of 30 consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this.............If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption and if his services are terminated without following the provisions of Art. 311 (2) he can claim protection."
The import of the above observations of the Supreme Court is that in a case where the discharge is based on misconduct and not merely on suitability and work performance of the officer, the misconduct is the foundation of the order of termination. If it is merely a matter of dissatisfaction with regard to the officer‟s performance at his job, which in the opinion of his superiors/ reviewing officers is not upto the mark, that is to say, the reasons are related directly to his work, the misconduct cannot be inferred as the foundation of the discharge order. If, however, there are serious allegations of a criminal nature and for that reason the officer is discharged, then, in that case misconduct is certainly the foundation of the discharge order.
23. In the case at hand, it is the respondents‟ own case that the External Affairs Ministry, "...sent the view of the Ministry to the CVC as well as DOPT and both of them concurred with the suggestion and ultimately on 13.6.2002 the services of the petitioner were terminated in accordance with the terms of the appointment." However, when we look at the records, things are WP(C) No.8091/2003 Page No.19 of 30 not that innocuous. The view of the External Affairs Ministry to the effect that the petitioner has committed serious misconduct, is unequivocal. Under the circumstances, we deem it necessary to analyze the true intent of the order of discharge in question.
24. To begin with on 8.2.2002 an urgent note was sent out with regard to the aforesaid complaint of Mrs. Chadha dated 7.2.2002 to the Minister of External Affairs stating that, "EAM was most disturbed to see this complaint and desired that this matter be attended to at the earliest." The matter was then discussed in the Department, and also with the Director, CNV. It appears that the Director CNV thereafter wrote to the Foreign Service Institute asking for a report on the petitioner. This report, which is dated 27.2.2002, was favourable to the petitioner. In the meanwhile, on 19.2.2002 the Joint Secretary (Administration Division) put up a note that there were several problems with the petitioner in the Administration, inter alia, regarding allocation of language, move on his language posting, demands for EMA facilities for his parents and non-attendance of DESK training. It was also alleged that in October, 1999 the petitioner‟s request for a change of service was denied by the DOPT and that, "he reportedly telephoned the officer, threatened him and tried to offer him money and reportedly hid certain facts and tried for a change of service on pretext of interpretation of rules." It further went on to state, that, "from the papers on the file it appears that no action at all was taken at that time which was unfortunate." This communication was sent on 19.2.2002. It is thus obvious that by this time, there was WP(C) No.8091/2003 Page No.20 of 30 a concerted effort to rake up every old thing that could possibly be used against the petitioner. It appears that on 25.2.2002 Mrs. Narinder Kaur Chadha wrote another letter, this time, to Ms. Narinder Chauhan, Director (CNV) in the Ministry. There, she acknowledged the fact that she already had a meeting with the Director (CNV) accompanied by her son and daughter. It appears that a hearing was afforded by the Director. That letter also mentions a patient hearing accorded to Mrs. Chadha by Mr. Jayant Prasad, Joint Secretary, (CNV/AMS) who was perhaps another senior officer. This letter makes it clear that the Director (CNV) had suggested to Mrs. Chadha to forward proof of the petitioner‟s harassment of her daughter. Attached to this letter were apparently copies of telephone lists along with some audio recordings. Apparently, on the basis of this communication, the Director (CNV) noted, inter alia, that, "the complaints against Shri Singhvi have the potential of causing embarrassment to the Ministry and the Government, if timely disciplinary action is not taken against him. The complaints have been looked into by EAM who has desired action to be taken in the matter." The note further goes on to state as follows :
"The acts of Shri Singhvi constitute serious misconducts: trying to bribe a Government Servant; lack of devotion to duty; and stalking, threatening and harassing and using filthy language against Smt. Chadha and her family by misusing his official position. Given the nature of the case it would be more appropriate to proceed in accordance with the terms of appointment whereunder no formal inquiry is required to substantiate the charges. The Disciplinary Authority is EAM who has seen the evidence from Mrs. Chadha, the complainant. The undersigned and the CVO have also WP(C) No.8091/2003 Page No.21 of 30 thoroughly convinced themselves of the complaints made against Shri Singhvi. It is thus proposed to terminate the services of Shri Mahavir Singhvi (Probationer, IFS, 1998) in accordance with the terms of appointment."
25. We have felt it necessary to reproduce this entire paragraph since it is particularly important. It seems to be saying two or three things at the same time. It records a positive finding that the petitioner has committed serious misconduct by trying to bribe a Government servant and at the same time stalking, threatening, harassing and using filthy language against Mrs. Chadha and her family and that too by misusing his official position. These are serious charges. Another finding against the petitioner is lack of devotion to duty. The above noting also shows that, at the same time, the Director (CNV) has thoroughly convinced herself of the complaints made against the petitioner. She further states that even the CEO, i.e. the Chief Vigilance Officer, was thoroughly convinced of the truth of these complaints. Till this stage, admittedly, no inquiry was held and no opportunity was given to the petitioner whatsoever with regard to these allegations. Amazingly, after having reached such definite conclusions about the petitioner‟s misconduct, and that too in the same paragraph, the Director suggests that in view of the nature of the case the Ministry should make use of the terms of his employment where, according to her, no formal inquiry is required to substantiate the charges. The same note then goes further to state that the Disciplinary Authority is the External Affairs Minister who has seen the evidence from the WP(C) No.8091/2003 Page No.22 of 30 complainant directly. This note is unequivocally approved by the Joint Secretary, CNV in the following terms:
"Needless to add any more. If Shri Singhvi were to continue in the foreign service I have no doubt he will blacken the name of the country. We should not permit him this opportunity."
26. It is thus obvious that even the Joint Secretary, CNV has thoroughly convinced himself about the allegations against the petitioner. We might add that the aforesaid noting of the Director (CNV) dated 8.3.2002, to the effect that, "given the nature of the case" it would be more appropriate to proceed without holding any formal enquiry to substantiate the charges, does not impress us. We cannot conceive of anything in the nature of the case that would persuade us to the view that this was a case where formal enquiry should be dispensed with. The only reason for this appears to be that the External Affairs Minister has seen the evidence from the complainant alone and that the Director (CNV) as well as the Chief Vigilance Officer, "have also thoroughly convinced themselves of the complaint made against Shri Singhvi". Such one-sided conviction as a ground for shutting out adequate opportunity to the person affected of meeting the case against him has always been frowned upon by the courts. Had the petitioner been afforded a proper opportunity, the only thing likely to happen was that the motives and methods of his superiors in dealing with this case would have been subjected to closer scrutiny.
27. It appears that thereafter, Mr. Jayant Prasad, Joint Secretary (CNV/AMS) put up the matter to the Additional WP(C) No.8091/2003 Page No.23 of 30 Secretary, CVC, for approving the recommendation that the petitioner‟s services be terminated. On 22.4.2002 this proposal was noted by the Central Vigilance Commission as a proposal for termination on the allegations that, "he is trying to bribe DOPT Desk Officer for securing his change of service, lack of devotion to duty and stalking, threatening and harassing and using intemperate and obscene language against Mrs. Narinder Kaur Chadha and her family by misusing his official position." The Central Vigilance Commission in turn examined the matter on 23.4.2002 on the basis that the Ministry of External Affairs has, in fact, arrived at a conclusion that the petitioner has exhibited misconduct and recorded that it also agrees with the MEA in this conclusion. To our mind, the records are so clear that they can admit to no other conclusion except that the findings of misconduct arrived at by the respondents are the very foundation of the impugned order discharging the petitioner.
28. The above conclusion reached by us is also strengthened by the observations made by the Supreme Court in Radhey Shyam Gupta Vs. UP State Agro Industries Corporation Ltd. AIR 1999 SC 609, wherein the Supreme Court held that;
"35. But in cases where the termination is preceded by an inquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the Officer and where on the basis of such a report, the termination order is issued, such an order will be violative of principles of natural justice inasmuch as the purpose of the inquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future termination is to be treated as based or founded upon misconduct and will be punitive. ....."WP(C) No.8091/2003 Page No.24 of 30
29. Similarly, in the case of Dipti Prakash Banerjee Vs. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta & Ors. AIR 1999 SC 983, the Supreme Court held that;
"22. If findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as 'founded' on the allegations and will be bad. But if the inquiry was not held, no findings were arrived at and the employer was not inclined to conduct an inquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid."
30. In Shamsher Singh's case (supra) also, the Enquiry Officer nominated by the Director of Vigilance recorded statements of witnesses behind the back of the appellant. The order of termination was given on the basis of the recommendations in the report, and for that reason, the order of discharge of the appellant was quashed.
31. In the case at hand, as noted above, a one-sided inquiry was certainly conducted at different levels. Opinions were expressed and definite conclusions regarding the petitioner‟s culpability were reached by key officials who, in their own words, had, "thoroughly convinced" themselves in this regard. The impugned decision was not based on mere suspicion alone. WP(C) No.8091/2003 Page No.25 of 30 The only thing is that it was all done behind his back. It therefore does not lie in the mouth of the respondents to describe the misconduct for which the services of the appellant were brought to an end, as merely the motive for the said decision. It was clearly the foundation for the same.
32. Furthermore, the order of discharge of the appellant would also fall to the ground in view of the observations made by the Supreme Court in the case of Anoop Jaiswal Vs. Government of India & Anr. AIR 1984 SC 636 where it was held that;
"13..........Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read alongwith the order for the purpose of determining its true character. If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Art. 311 (2) of the Constitution."
33. The learned Addl. Solicitor General has also relied on the judgment of the Supreme Court in Champaklal Chimanlal Shah Vs. Union of India, AIR 1964 SC 1854, but the same has no application to the present case. That judgment dealt with the issue that once a departmental enquiry into the allegations of misconduct is instituted by a superior authority, it is open for that authority to drop such enquiry and pass an order of discharge. However, such an order will amount to a discharge simiplicitor only when no finding of a definite nature has been arrived at by such authority, which is not so in the case at hand. WP(C) No.8091/2003 Page No.26 of 30 Here, while on the one hand, no departmental enquiry was instituted against the petitioner, yet the respondents had, in their own words, "thoroughly convinced" themselves of the petitioner‟s misconduct. In other words, the findings were definite and unequivocal.
34. In addition, Mr. Jayant Bhushan, Sr. Advocate, has also addressed this Court on the plea that by the time the impugned order was passed, the petitioner‟s status was that of a confirmed officer. However, since we agree with the petitioner on the first ground that the finding of misconduct forms the foundation for the termination of the petitioner's service, therefore, the impugned order, which was admittedly passed without a formal inquiry and without giving any reasonable opportunity to the petitioner, was bad and must be quashed, we are not going into any of the other ground raised by the petitioner.
35. The learned Addl. Solicitor General has also taken the position that it is only in cases where proper inquiry is held and a finding of misconduct is duly arrived at thereafter that misconduct can be taken to be the foundation of the termination order. He goes further to state that if however, the officer‟s suitability is judged only with a view to deciding whether or not to extend probation, then the decision to bring the service to an end by not extending probation any further, could only mean that the misconduct in question merely formed the motive for the decision and not foundation. Be that as it may, nothing has been brought to our attention by the respondents in this case to demonstrate that the entire exercise in question was carried out WP(C) No.8091/2003 Page No.27 of 30 with a view to deciding whether or not to extend Mr.Singhvi‟s probation. In fact, the issue of extension of probation does not seem to have been discussed at all. We also have no doubt that under the law as it stands today, even a probationary officer cannot be removed from service on the ground of misconduct involving moral turpitude of a serious nature, as in the present case, without affording an opportunity to the officer to put forth his defence, more so, when the record demonstrates that the opinion of the senior officers looking into the matter has advanced from mere suspicion to absolute certainty. The removal is not merely on the ground that the work of a probationer is unsatisfactory and therefore, he is unsuitable on account of his inadequacy for the job or for any temperamental or other object, not involving moral turpitude, and hence must be discharged as unsuitable without either confirming him or extending his probation. In a case like the present one, the procedure envisaged under the rules applicable, or any other procedure that is just, fair and reasonable, and which must necessarily include a fair opportunity of rebutting the allegations against him, must be made available to the officer concerned. If that is not done, then notwithstanding the fact that the officer happens to be a probationer, any order terminating his service where misconduct forms the basis thereof would be bad.
36. Looking to the records produced before this Court and in particular the tone and tenor of the advice of Ms. Narinder Chauhan on 8.3.2002, suggesting that, "given the nature of the case", a letter of discharge simplicitor be issued in this case, WP(C) No.8091/2003 Page No.28 of 30 leaves us in no doubt that the entire object of the exercise was to camouflage the real intention of the respondents, which was to remove the petitioner for something about which they had convinced themselves, but did not think it advisable or necessary to give the petitioner any opportunity to clear his name.
37. A promising career in the country‟s most coveted service is at stake here. We are loath to permit the respondents to give him such short shrift, as they have obviously done. Inter alia, the conclusion of Mr. Jayant Prasad, Joint Secretary (CNV) that "...........I have no doubt that he will blacken the country‟s name.............." appears to us to be utterly without foundation. This shibboleth is so obviously judgmental and ex facie defamatory that one is reminded of the Scottish adage, "Give a dog a bad name and hang him". Surely, this country and particularly its courts, have come a long way in interdicting such one-sided arbitrary assessments of subordinates that have the potential of utterly destroying their careers, nay even their very lives, without a proper opportunity to the affected officers. The petitioner was at the threshold of his career when he was removed from service on 13.6.2002. More than six years have already elapsed in seeking redressal.
38. Under the circumstances, the impugned order of the Tribunal dated 4.9.2003 in O. A. No.2038/2002 and order dated 14.11.2003 in Review Application No.323/2003 in O. A. No.2038/2002 is set aside. Further, the order dated 13.6.2002 discharging the petitioner from Indian Foreign Service is also quashed and set aside. The respondents are directed to reinstate WP(C) No.8091/2003 Page No.29 of 30 the petitioner in the Indian Foreign Service Cadre of 1999 batch along with all consequential seniority and benefits within one month from today.
SUDERSHAN KUMAR MISRA, J.
MANMOHAN SARIN, J.
August 29, 2008 skw WP(C) No.8091/2003 Page No.30 of 30