Central Administrative Tribunal - Delhi
Ashok Kumar Sharma vs External Affairs on 19 November, 2024
1
Item No. 30 (C-4) OA 4180/2024
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A No. 4180/2024
Reserved on : 14.11.2024
Pronounced on:_19.11.2024
Hon'ble Dr. Sumeet Jerath, Member (A)
Ashok Kumar Sharma,
S/o. Late Shri Shyam Lal, aged about 58 yrs,
R/o. RZG 693, Raj Nagar-2, Palam Colony,
New Delhi-110077 ....Applicant
(By Advocate : Mr. Manoj Joshi)
Versus
Ministry of External Affairs,
Through its Secretary,
74B South Block, New Delhi - 110 011. ...Respondent
(By Advocate : Mr. Thakur Virender Pratap Singh Charak, Ms.
Shubhra Parashar, Mr. Pushpender Singh Charak, Mr. Kapil
Gaur and Mr. Vinit Gandhi)
ORDER
The instant OA has been filed by the applicant Mr. Ashok Kumar Sharma seeking the following reliefs as well as interim relief :-
"Relief 8 a. allow the present Original Application ;
b. To quash and set aside impugned Recall/transfer Order bearing No. Q/PB-III/6613/53/2024 whereby applicant has been recalled/transferred from Consulate General of India (CGI in short), Birgunj to Head Quarters;2 Item No. 30 (C-4) OA 4180/2024
c. Pass such other or further order which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case."
"Interim Relief
(a) Stay the operation of the impugned Recall/transfer Order bearing No. Q/PB-III/6613/53/2024 dated 11/10/2024 whereby applicant has been recalled/transferred from Consulate General of India (CGI in short), Birgunj to Head Quarters till the final disposal of the present Original Application.
(b) Pass such other or further orders that this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case."
2. The factual matrix of the case as per the learned counsel for the applicant is that the applicant joined the Ministry of External Affairs (MEA) in 1996 and during his tenure in the MEA, he was transferred on various foreign assignments to many different countries where he discharged his duties with utmost sincerity, honesty and diligence. On 17.05.2024 he was transferred to the present posting at CGI, Birgunj as Consul/PPS, Nepal for three years. However, after joining there, he contracted with viral fever which downgraded his health. He was advised by the Doctors in Birgunj to return to India. Accordingly, he requested the competent authority to grant him leave. However, the CGI, Birgunj did not accede to his request and only on 10.10.2024 the Head of Chancery (HoC) approved his leave for 45 days from 11.10.2024 to 15.11.2024. After return to India on 11.10.2024, the applicant wrote to his superior authorities i.e., JS(AD), MEA and Director 3 Item No. 30 (C-4) OA 4180/2024 (ADP) about the alleged callous traits of the HoC CGI, Birgunj in lingering his leave application on medical grounds. Consequently, on the very same day, i.e., on 11.10.2024 the impugned transfer order had been issued by the respondent transferring/recalling him back to the headquarters much before completion of his tenure, which according to the applicant shows arbitrariness and mala fide. Hence, the present OA.
3. The counsel for the applicant argued vehemently on the following grounds :-
"B. BECAUSE the respondent has failed to reconsider the applicant's representation and request in a positive way by withdrawing the impugned recall/transfer order. The respondent's action is violative of the principles of natural justice as reasons recorded by the respondent and the reference to Para 8(3) of Annexure XII of IFS (PLCA) Rules are not applicable in Applicant's case. The Relevant Rules is extracted herein below:
8. Journey on recall: (1) A journey on recall means a journey from a place abroad, at which an officer is posted to India, performed by an officer and entitled members of his family and Indian servants, when:-
(i) an officer has been dismissed or removed from the Service while posted abroad, or
(ii) the officer is a temporary Government servant and his services have been terminated while serving in a post abroad; or
iii) the officer was employed under the Government under a contract which has expired while he was serving in a post abroad; or
(iv) the officer has been permitted to resign from service under the Government or has voluntarily terminated his contract with the Government; or 4 Item No. 30 (C-4) OA 4180/2024
(v) the officer has been permitted to return to India at his own request; or
(vi) the officer has been recalled to India under the provisions of sub-para (2) or sub-para (3) below.
(2)....
(3) If the Ministry is satisfied that an officer serving abroad or a member of his family is suffering from a serious or chronic illness or disease as a result of which:-
(a) the officer has been or may become unable to perform his duties efficiently or fully; or
(b) the expenditure that has been or may be incurred on his or his family's medical or hospital treatment is unduly large:
the Ministry may compulsorily recall him to India and may, for that purpose, authorise his travel to India and of the entitled members of his family and Indian servants.
Hence, the impugned action is bad in law and liable to be quashed and set aside by this Hon'ble Tribunal.
D. BECAUSE the action of recall/transfer is arbitrary, unreasonable, and whimsical and is in violation of Article 14 of the Constitution of India, Principle of Natural Justice and the law laid down by the Hon'ble Supreme Court. The impugned recall/transfer order dated 11.10.2024 is arbitrary to the core and unwarranted, and issued with a vindictive and malafide intention under pressure to please the sheer numbers who are involved in the entire transfer process and exceeded his powers as the reason of being suffering from chronic illness or disease which may unable the Applicant to perform his duties efficiently or fully OR the expenditure that has been incurred is unduly high are not applicable, therefore the issuance of impugned order has resulted in grave illegality.
E. BECAUSE the recall/transfer of the applicant is both vindictive and personalized as he wrote to the Joint Secretary (AD), MEA, New Delhi, wherein he enumerated the callous and unemotional traits of the HoC of CGI, Birgunj in lingering the leave application of the Applicant for coming to India on official tickets for treatment.
F. BECAUSE the HoC, CGI, Birgunj has whimsically and in a favoritism manner allowed the leave and further extension of leave to officers of his choice. However, in applicant's case, even before the completion of his tenure, the respondent has illicitly and with malafide intent recalled him on false and implausible reasons. In is pertinent to mention 5 Item No. 30 (C-4) OA 4180/2024 that Ms. Nancy Jain, Personal Assistant in CGI, Birgunj is on medical leave from the last four weeks and has been given further four weeks extended leave on the advice of doctors.
G. BECAUSE the impugned order dated 11.10.2024 has not been passed in a proper manner and therefore is non est in law inasmuch as the order is very vague more particularly with respect to chronic disease. The applicant has been made a victim of arbitrariness and high-handedness of the authorities perpetrated under influence of one or two officers acting with unfair and prejudiced and vindictive mind.
H. BECAUSE the impugned order/action was passed in a very haste and hassle manner soon after the complained made by the applicant to the Joint Secretary(AD) regarding the laxity & slackness of HoC, CGI, Birgunj in taking steps for approving and booking official tickets for the applicant to return to India.
L BECAUSE from the perusal of the long outstanding experience of the Applicant earned in various posting abroad, it is clear that the applicant was very hard working and possesses deep knowledge of working the embassies of India situated in foreign countries and has been discharging all the duties and responsibilities to the said post in his individual official capacity till date; in such circumstances the action of the authorities in making the applicant transferred to India cannot be said to be justified in the eyes of law.
K. BECAUSE the impugned order of transfer of the applicant is punitive in nature with malafide intention and against public interest inasmuch as the Applicant at his posting in CGI, Birgunj was discharging more onerous duties effectively. He has been instrumental in processing the various scholarship schemes viz. AYUSH Scholarship Scheme, Atal Bihari Vajpayee General Scholarship Scheme, Silver Jubilee Scholarship Scheme (SJSS)."
4. However, this was opposed strenuously by the counsel of the respondent and the officer from MEA who placed the following document on brief for Government Counsel on record :-
"Alleged Cause of Action:6 Item No. 30 (C-4) OA 4180/2024
1. The Applicant has impugned Ministry's Order No. Q/PB-
III/6613/53/2024 dated 11.10.2024 (Annex-A / Pg 3), vide which he has been compulsorily recalled from the Consulate General of India (CGI), Birgunj to HQs at Delhi.
2. The Applicant has alleged that he has been discriminated against, as his request for necessary travel arrangements for seeking medical treatment in India was not acceded to by the Consulate and he had to travel to India on 11.10.2024 on medical leave. His transfer/recall order was also issued by the Ministry on the same day viz. 11.10.2024.
Ministry's Reply in nutshell:
1. While the Applicant was posted at the Consulate General of India, Birgunj, he had been diagnosed to be suffering from liver cirrhosis and he had not been attending office since 22.08.2024 afternoon due to health issues. Birgunj is a very small town and lacks adequate medical facilities and patients suffering from serious illness are normally referred to India for medical treatment.
2. After due stock-taking of the facts and circumstances, the Applicant has been transferred from Birgunj to Delhi, in the light of extant rules governing foreign service viz. Indian Foreign Service (Pay, Leave, Compensatory Allowance and Other Conditions of Service) Rules, 1961 (in short, IFS (PLCA) Rules, 1961). The Applicant has been transferred in terms of para 8 (3) of Annexure-XII of IFS (PILCA) Rules (Annex-B/Pg 5), which is reproduced hereunder:
"If the Ministry is satisfied that an officer serving abroad or a member of his family is suffering from a serious or chronic illness or disease as a result of which:
(a) the officer has been or may become unable to perform his duties efficiently or fully; or
(b) the expenditure that has been or may be incurred on his or his family's medical or hospital treatment is unduly large;
the Ministry may compulsorily recall him to India and may, for that purpose, authorise his travel to India and of the entitled members of his family and Indian servants."
3. It is important to refer to the Applicant's own email dated 27.09.2024 (Annex-C/Pg 6), thereby acknowledging the Consulate's cooperation and help extended to him. The Applicant's alleged grievance is unsubstantiated, devoid of 7 Item No. 30 (C-4) OA 4180/2024 merit and hence, may be disposed of against the Applicant and in favour of the Respondent."
5. Heard the learned counsel of both the sides; the officer from Ministry of External Affairs and the relevant documents on record. It has been placed on record by the respondent that the applicant had been diagnosed to be suffering from Liver Cirrhosis and had not been attending office since 22.08.2024 afternoon due to poor health. The applicant has been suffering not only from Liver disease but also from Kidney disease - increase in Creatinine level beyond permissible level as is evident from the email dated 27.09.2024 sent by the applicant to MEA on the subject : Intimation regarding my sickness. The same is reproduced below :-
" Fri, Sep 27, 2024 01:27 PM Subject: Intimation regarding my sickness To: HOC CGI Hambantota<[email protected]>, Praveen Kumar Goel <[email protected]> Though, Admin. Is well aware of my health problem of Liver Cirrhosis as well as increase in cretanine level beyond permissible level and consequent upon which decrease in Hb level which is hovering around 6-7 and decrease in quantity of platlates around 68000 or plus minus and the treatment going on.
I have been under the supervision of Drs. and they are making their effort to stabilize the condition through medicines and Injections. If not possible, as per doctors, blood will be transfused.
In this regard, necessary leave permission and papers will be submitted in due course.
8Item No. 30 (C-4) OA 4180/2024 Here, I would like to underline the cooperation and help extended by the Consulate to me.
Regards, (Ashok Kumar Sharma) Consul/PPS"
6. Considering the above ; after 'due diligence' and with the approval of the competent authority vide Diary No. 2889/AS(AD)/2024 dated 10.10.2024, the respondent passed the following transfer order No. MEA-PB-III/6613/53/2024 dated 11.10.2024, which is reproduced below :-
"Sub: Transfer of Shri Ashok Kumar Sharma, PPS in CGI, Birgunj to HQ.
Sir/Madam, I am directed to convey that the Competent Authority in the Ministry has approved recall of Shri Ashok Kumar Shama, PPS in terms of para 8(3) read with para 15(3) of Annexure XII and para 1(4)(ii)(s) of Annexure-XX of IFS(PLCA) Rules.
2. The TA Bill has to be submitted by the officer within 120 days of arrival at Headquarters. Failure to comply with above will entail not only forfeiture of the claim but also recovery of any other dues in one instalment. If, due to unforeseen circumstances, the TA claim cannot be submitted within the prescribed period of 120 days, he should intimate the position stating the full facts and the details of the claim to the Administration well in advance for consideration.
3. The expenditure on passages and transportation of baggage, etc. on the officer's move on transfer will be debitable to your Post and the expenditure on account of transit pay, leave salary etc. will be debitable to the Ministry
4. This issues with the approval of Competent Authority vide diary no. 2889/AS(AD)/2024 dated 10.10.2024."9 Item No. 30 (C-4) OA 4180/2024
7. In my considered opinion, the above order is a well reasoned and speaking order issued by exercise of powers under para 8(3) read with para 15(3) of Annexure XII of IFS (PLCA) Rules with the approval of the competent authority. Both Liver Cirrhosis (liver disease) and increase in Creatinine level beyond permissible level (Kidney disease) are serious and chronic diseases and as the officer was not able to perform his duties efficiently/fully and was not attending office since 22nd August, 2024 on health grounds ; and that Birgunj being a small town with primitive medical facilities, the respondent have rightly recalled the applicant to MEA HQ in Delhi. Delhi has much better facilities than Birgunj and the applicant can get very good health care and treatment here. He had also come from Birgunj to Delhi on medical grounds to get better medical treatment on medical leave from 11th October, 2024 which expires on 15th November, 2024. However, now with his recall and posting in MEA, HQs, Delhi, he would be able to avail the best medical facilities of our capital to cure his serious and chronic Liver and Kidney diseases. The respondent had therefore, acted as a model employer and as a good Samaritan recalled the applicant to MEA HQs in Delhi in good faith and with bona fide intentions.
10Item No. 30 (C-4) OA 4180/2024 I find nothing arbitrary, mala fide, illegal or unconstitutional in the MEA's Transfer order No. Q/PB-III/6613/53/2024 dated 11.10.2024 which the applicant is assailing and thus I am not at all inclined to interfere with it. As both the interim and final relief are one and the same, I have dealt with them both and both are denied. The instant OA lacks merit; deserves to be dismissed and is accordingly dismissed with no order as to costs.
(Dr. Sumeet Jerath) Member (A) /Mbt/