Central Administrative Tribunal - Delhi
M. Sathiya Priya vs Union Of India on 29 May, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.3582/2014 Order Reserved on: 01.04.2015 Order Pronounced on: 29.05.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Mr. Sudhir Kumar, Member (A) M. Sathiya Priya, W/o Shri A. Balaji, Superintendent of Police Presently under suspension R/o Old No.3/2, New No.9, Srinivaspuram, Thiruvanniyur, Chennai. -Applicant (By Advocate: Shri Ardhendumauli Kumar Prasad with Shri Nitish Gupta and Shri Nitesh Ranjan) Versus 1. Union of India, Through Home Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. State of Tamil Nadu, Through Principal Secretary to the Government, Home Department, Secretariat, Chennai-9. -Respondents (By Advocate: Shri Rajeev Kumar, for R-1, Mrs. Jyoti Singh, Sr. counsel assisted by Ms. Shase B. Balaji and Ms. Tinu Bajwa, for R-2) O R D E R
Per Sudhir Kumar, Member (Administrative):
The applicant of this case is a promotee IPS Officer of Tamil Nadu (T.N., in short) Cadre, who filed the present OA on 29.09.2014, as she was aggrieved as on that date by the suspension order passed against her by the Respondent No.2 T.N. State Government on 12.03.2014, and the Charge Memo issued to her for initiating disciplinary proceedings against her by Respondent No.2, and, as on the date of filing of the OA, she was also aggrieved with the inaction of Respondent No.1 in having kept her appeal Memo against her suspension dated 24.04.2014 pending for a long time.
2. The case was listed for admission on 10.10.2014. Shri Rajinder Nischal, the panel counsel for Union of India then present in the Court accepted notice on behalf of Respondent No.1, and sought two weeks time to seek instructions and file a reply, and liberty was granted to the applicant to serve Respondent No.2 personally, and file an affidavit of service within 10 days, and the matter was ordered to be listed for consideration of grant of interim relief on 31.10.2014.
3. When the case was taken up on 31.10.2014, it was brought to the notice of the Bench and submitted by the learned counsel for Respondent No.2 Shri B. Balaji that since the order of applicants suspension by Respondent No.2- State of T.N. has in the meanwhile already been revoked by the Respondent No.1-Union of India, the second prayer of the applicant, regarding revocation of the order of her suspension, has become infructuous. However, he sought time for filing reply of Respondent No.2-State of T.N. in respect of the first prayer of the applicant, regarding quashing of the charge sheet, which time was granted, with permission to the applicant to file rejoinder thereto. No submission against the order of revocation of the applicants suspension by the Respondent No.1 was made by the learned counsel for either the applicant, or the learned counsel for Respondent No.2, State of T.N., though the same standing counsel Shri Rajinder Nischal was present in the Court representing Respondent No.1-Union of India. The case was thereafter ordered to be listed before the Principal Registrar for completion of pleadings.
4. On 09.12.2014, it was noted by the Joint Registrar that the written statement of Respondent No.2 was on record, but that no written statement had been filed by Respondent No.1, and he allowed two weeks time for the same. The proxy counsel for the arguing counsel for the applicant present on that date opposed the grant of time to Respondent No.1 for filing the written statement, and submitted that the applicant was still under suspension, and prayed for the matter to be placed before the Bench. The applicant then moved MA No. 3995/2014, which came to be listed before the Bench on 22.12.2014. Through this MA, the applicant had sought her immediate reinstatement, in view of the orders of the Respondent No.1-Union of India as the Appellate Authority. The learned counsel, who appeared for Respondent No.1 this time was different, as Shri Rajeev Kumar put in his appearance, and the learned counsel who had appeared for Respondent No.2 State of T.N. on earlier occasions, and had also filed his Vakalatnama, was not present. The Bench once again took notice of the fact that, as it had been informed on 31.10.2014 itself earlier, Respondent No.1 had on 28.10.2014 revoked the order of suspension of the applicant. Shri Rajeev Kumar sought time to file his reply, along with a copy of the said order of Respondent No.1 Union of India, for which time was granted to him.
5. On 07.01.2015, adjournment was sought on behalf of Respondent No.2 State of T.N. on the ground that some instructions were required to be obtained for filing reply to the MA, which prayer was opposed by the applicants counsel by pointing out that the Respondent No.2, in the meanwhile, is proceeding ahead with the departmental enquiry, in which the date has been fixed for the next day, i.e., 08.01.2015. It was further pointed out that despite the order of suspension of the applicant having been revoked by the Appellate Authority Respondent No.1 Union of India, the Respondent No.2 State of T.N. has not yet reinstated the applicant, which was against the submission made by the same learned counsel for Respondent No.2 State of T.N. Shri B. Balaji on 31.10.2014, when he had himself submitted and informed the Bench that since the order of suspension had already been revoked by the Appellate Authority-Respondent No.1, the second prayer of the applicant regarding revocation of her order of suspension had become infructuous, as has been recorded by us above also. But since short adjournment had been sought by Respondent No.2, State of T.N., the matter was adjourned to 16.01.2015.
6. On 16.01.2015, Shri Rajeev Kumar, learned counsel for Respondent No.1 Union of India submitted that necessary instructions had been received by him, and the reply prepared by him had been sent to the department for vetting and will be filed within two weeks. The Bench allowed one weeks time thereafter to the applicant to file rejoinder, if any, after noting that the reply filed on behalf of Respondent No.2, State of T.N., as well as the applicants rejoinder thereto, are already on record, and the matter was therefore ordered to be listed on 04.02.2015 under Ready for Hearing Matters. Thereafter, after much wrangling, the matter was listed on 24.03.2015 for final hearing, with clear understanding that no further adjournment would be granted on that date.
7. On 24.03.2015, Senior Counsel Ms. Jyoti Singh and Shri B. Balaji were present for Respondent No.2, State of T.N., and the Bench heard in part the submissions of the learned Counsel for the applicant, and of Ms. Jyoti Singh, and of Shri Rajeev Kumar, learned Counsel for Respondent No.1, though their arguments could not be concluded on that day. Besides, the Bench concluded that in view of the submissions made by both the sides, the relevant official records of Respondent No.2 State of T.N., and that of the Office of its Director General of Police (DGP, in short), pertaining to the case of the applicant, including the record pertaining to her being relieved to join MHA pursuant to the order of the DGP dated 12.01.2013, and her subsequent suspension and initiation of a departmental enquiry against her in 2014, were necessary for being perused. Therefore, as agreed by the learned counsel for the parties, the case was adjourned to be taken up on 31.03.2015, with directions to the respondents to produce the aforesaid records. The case was finally heard in detail on 01.04.2015 and reserved for orders. Much emphasis was laid by the learned Senior counsel for Respondent No.2 State of T.N. in her arguments on Paragraphs 2 & 7 of the DoP&T Guidelines vide their letter No.14017/16/91-AIS-II dated 13.10.1993 in which in Guideline-2 and Guideline-7 it has been stated as follows:-
2. Deputations to the international agencies shall be regulated in terms of Consolidated Instructions on Foreign Assignments issued from time to time.
3 to 6 xxxxxxxxx(Not reproduced here)
7. All deputations under Rule 6(2)(ii) shall be considered only with the consent of the officer concerned and the approval of the cadre controlling authority. Cadre Controlling Authority would mean the State Government concerned if the officer is in his cadre. If the officer is with the Government of India, then it would mean the Ministry of Home Affairs in the case of IPS officers, MOEF in the case of IfoS officer..
(Emphasis supplied).
8. However, due to some unavoidable circumstances, the records could not reach from Chennai by that day, but the learned Senior counsel for Respondent No.2 promised that the same shall be produced by 07.04.2015 in a sealed cover, which were indeed produced by the date as promised by the learned Sr. counsel. In the sealed cover there were 7 files, three of T.N. Govt. Secretariat, with pink colour covers, marked as Sl. No.1 File No.72319/Pol.I/2010, marked as Sl No.2 File No. 35939/Pol.I/2012, marked as Sl. No.3 File No. 3758/Pol.I/2013, which were accompanied by four files, marked as Sl. No.6 File No. R.Dis.119431/GB IV(1)/2010, marked as Sl. No.7 File No. 087058/GB IV(1) 2012, marked as Sl. No.8 File No. 6569/GB-I(1)/213, & marked as Sl. No.9 File No. Con. II(1)/50436/2014 from the Office of DGP, Tamil Nadu. There were no files with the numbering 4&5 marked on them, but we have no way to ascertain as to who marked the serial numbers on top of the properly sewed and bundled files, and as to why the Sl Nos. 4&5 were missing, which may just be a clerical error, as the Respondent No.2 State of T.N. may have intended to produce only the files which have actually been produced in a sealed cover.
EXAMINATION OF THE FILES
9. The sequence of events which emerges from the arguments of both the sides before us, and from these files, is as follows. From File-1 mentioned above, it is seen that Ministry of Home Affairs (MHA, in short), Govt. of India (GoI, in short), New Delhi, had through their letter No.21023/07/2010-PMA dated 22.04.2010 called for nomination of Police Officers of various levels of seniority from all State Governments in the country, for selection for deployment as the United Nations (U.N., in short) Civilian Police (CIVPOL, in short) Officers with its various Peacekeeping Missions (UN SAT 2010-2011). The Respondent No.2, State of T.N., was eager to nominate its officers also, like all other States, and circulated this MHA letter through letter No.36045/Police-01/2010-1, Home (Police-1) Deptt. dated 06.05.2010. Government of T.N. first nominated four IPS officers, Ms. Sonal V. Mishra, IPS (TN 2000), Ms. Kalpana Nayak D. IPS (TN 1998), Dr. Mahender Kumar Rathod, IPS (TN 2001), and Shri K. Periaiah, IPS, whose batch has not been mentioned against his name. The letter issued by the Govt. of India, Ministry of Home Affairs dated 06.09.2010 available at pages 19 to 25 of File No.1 shows that these four T.N. IPS officers were serial numbered at 97 to 100 in the list of 152 officers nominated till that date, and that they were called for the Second Batch of Pre-SAT Training, to be held w.e.f. 20th to 24th September 2010. In the same list, Sl Nos. 1 to 46 were called for the First Batch of Pre-SAT Training, and Sl No.101 to 152 had been called for the Third Batch of Pre-SAT Training, on different dates, all of whom belonged to other States and Union Territories and Central Para-Military Forces (C.P.M.Fs., in short).
10. At that point of time the applicant was posted as Assistant Inspector General of Police, Law & Order, Chennai, and she filed her belated willingness petition dated 03.09.2010, through proper channel, to the DGP, Tamil Nadu (pages 3 to 13 of file No.1), along with her Bio-Data Proforma and UN Personal History form filled up properly. The then DGP of Tamil Nadu forwarded her belated willingness petition to the Principal Secretary to Government, Home Department, Govt. of T.N., and further informed that there was no departmental action pending or under contemplation against her, and no vigilance enquiry/case was pending or under contemplation against her, and requested that the willingness of the officer for consideration of her candidature for appointment with UN Peacekeeping Missions (UN SAT 2010-2011) with her Bio-Data and P-11 form (UN Personal History Form) be forwarded to the MHA, GoI. This letter, signed on 14.09.2010, reached Home (Police-1) Department of the State Government, and, very promptly, on 17.09.2010, that Department consulted the Secret and Confidential Wing of the Department, Home (SC) Department, to state as to whether any disciplinary proceedings/vigilance enquiry are pending or contemplated against the applicant for the purpose of pursuing further action in the matter. Very promptly, the same day on 17.09.2010, the Home (SC) Department confirmed that no disciplinary proceedings/vigilance enquiry were pending or contemplated against the applicant, and the same day the file was returned back to Home (Police-1) Department.
11. The Note Sheet pages annexed at the end of the file show that very promptly thereafter the Home (Police-1) Department put up the proposal on 21.09.2010 within the department, and subject to favourable orders being passed, in anticipation and in advance, a Circulation Note in Tamil language was also submitted for approval. This Circulation Note was approved by the Dy. Secretary (Police-1) on 22.09.2010, and by the Principal Secretary on 23.09.2010, and was sent thereafter to the office of Honble Chief Minister, Tamil Nadu, where it was received on 23.09.2010. The then Honble Chief Minister accorded his approval to the proposal on 28.09.2010, which orders obtained under circulation were communicated and sent back to the Principal Secretary, Home (Police-1) on 28.09.2010 itself. A draft letter to be addressed to the MHA Govt. of India was accordingly put up on 29.09.2010, approved by the Dy. Secretary on 30.09.2010, and was thereafter approved by the Principal Secretary also, and letter No.72319/Police-1/2010-1 dated 04.10.2010 was addressed to the Secretary to Government, MHA, GoI, and was issued and sent by Fax also on that date itself. The efficiency with which the belated request of the applicant was considered by the Tamil Nadu Government has really to be admired by this description of dates and events.
12. The concerned PMA Cell of MHA, GoI, had, in the meanwhile, pointed out through their letter dated 30.09.2010 that the State of Tamil Nadu had already nominated 14 police officers for the UN SAT 2010-2011. Even though the request of the applicant was a belated request, but the MHA/GoI still included the name of the applicant in its letter dated 05.10.2010, and the name of the applicant was at Sl. No.21 out of the list of 34 people nominated for the 6th Batch of Pre-SAT Training scheduled to be held on 18.10.2010 to 22.10.2010, in which, apart from the applicant, 13 other police officials from Tamil Nadu of lower ranks were also included in the same Training. This letter from Govt. of India was also processed at the T.N. Secretariat quickly, on the basis of the Fax message received from MHA, and on 12.10.2010, a draft letter addressed to the DGP was put up, and was approved by the Home (Police-1) Department on 14.10.2010, seeking concurrence of the DGP for the nomination of the applicant.
13. Very promptly, in the meanwhile, the DGPs Office had, in parallel, processed the case of the applicant on the basis of the same Fax message dated 05.10.2010, received from the MHA, GoI, and on instructions being received from Home (Police-1) Department, the applicant, then working as Assistant Inspector General of Police, Law & Order in the Office of the DGP himself, was directed to attend the pre-selection Training from 18.10.2010 to 22.10.2010. Through the Home (Police-1) Department, T.N. Govt. Secretariat letter dated 19.10.2010 addressed to the MHA/GoI, State Governments concurrence with regard to the applicants nomination for attending the final UN SAT Test 2010-2011 at the National UN CIVPOL Centre was also conveyed. After the Pre-SAT Training was over, the applicant stood selected, and as the MHA/GoI letter dated 03.12.2010, at pages 45 to 52 of Tamil Nadu Secretariat File-1 mentioned above, shows, she was the only selected person from T.N. State, out of the 279 Police and CPMF Officers called from all over India, at various levels of seniority, to have been nominated for appearing in the final UN SAT Test, to be conducted by the UN SAT Test team from New York visiting India from 13.12.2010 to 17.12.2010.
14. The said letter of the MHA/GoI had further stated that the officers appearing before the UN SAT Test should bring with them a 9mm pistol, with sufficient ammunition, along with soft and hard copies of the UN Personal History P-11 form, and submit the same at the National UN CIVPOL Centre. Para-3 of the letter dated 03.12.2010 had further stated that it will be the responsibility of the sponsoring organization to ensure that the nominated officers of their respective States do fulfill all eligibility conditions, as circulated by the MHAs communication, and should be clear from disciplinary and vigilance angle, and that the failure to meet these guidelines may result in cancellation of the candidature, and even repatriation of the official from UN Mission at own cost, and to be rendered liable for disciplinary proceedings. The applicant was duly permitted to carry from Chennai to Delhi such a pistol, and the ammunition. Through the Annexure A-7 of her OA, the applicant has brought on record that she had stood at Sl No. 101 in the order of merit in the merit list of officers, who had finally qualified in the UN SAT Test 2010-2011, and that she was the only officer from T.N. State to be so selected. However, the fact remains that her services were not requisitioned by the United Nations Department of Peace-keeping Operations (UNDPKO, in short) immediately, and for quite some time thereafter also, for almost two years.
15. File No.2 sent by the Tamil Nadu Secretariat mentioned above shows that after a gap of about two years, another requisition dated 24/25.04.2012 was issued by the MHA/GoI PMA Cell to the Home Secretaries of all States, for UNSAT 2012-2013, with a slightly more detailed and accurate description of the type of Police personnel required for serving with the UN CIVPOL. Para-5 of the letter described the specific Skill Sets required for deployment with various UN Peace Keeping Missions, Para-6 & 7 giving the detailed procedure in regard to the selection, and the financial entitlements of officers during the deployment, Para-8 stating that the State Governments and other organizations may nominate afresh not more than 5 police officers, latest by 15.05.2012, giving the eligibility conditions from (a) to (j), and Para-9 of that letter stated as follows:-
9. The State Government/UTAs/CPOs are further requested that the officers who had passed the UN SAT 2010-11 test held from 13th to 17th December 2010 but could not be deployed so far may again be nominated to re-appear for UN SAT test 2012-2013 (as per the list attached), in addition to their regular nomination. It may here be intimated that the validity of the UN SAT held in December 2010 is likely to be extended up to December 2012. Therefore, in case, by the time of UN SAT 2012 or thereafter up to December 2012 these officers are deployed with different Missions, their names will be removed from the panel of UN SAT 2012.
16. The MHA/GoI letter also contained a list of 77 Officers, at pages 4 to 6, from different States and Union Territories and CPMFs, who had passed the UN SAT Test 2010-2011 held from 13th to 17th December 2010, but could not so far be deployed, in which list, since the applicant was the only person from Tamil Nadu who had qualified earlier but was not so far deployed, her name appeared at Sl No.37 at page-5, with her UN SAT Seniority 2010-2011 Sl No.101 being mentioned against her name. Even the Bio-Data Proforma this time annexed to the MHA/GoI letter dated 25.04.2012 had included a new Point No.10 for mentioning the UN SAT Merit Number in respect of those officers, who had earlier itself passed the UN SAT 2010-2011, and were still awaiting deployment against their selection. Only thereafter the UN Personal History Form P-11 had been included at pages 8 to 16 of that MHA/GoI letter.
17. After having received this letter on 08.05.2012, the Home Department of Tamil Nadu Government was once again quite efficient in preparing a letter on 09.05.2012 itself, which came to be approved by the Dy. Secretary (Police-1) on 11.05.2012, addressed to the DGP, asking the latter to send suitable nominations as requested by MHA/GoI therein. Since the name of the applicant before us had already appeared in the very body of that MHA/GoI letter dated 24/25.04.2012, which was even uploaded on the MHA Website, and must have been seen by the applicant also, who was in the meanwhile posted as Superintendent of Police at Namakkal District, she gave a representation dated 12.05.2012 since she was fully eligible in terms of paragraph 9 of this letter (as reproduced above). She stated that she was forwarding her willingness to appear once again for UN SAT Test for the year 2012-2013, and also for deployment with UN Peacekeeping Mission, since she was already selected in UN SAT Test for the year 2010-2011, and she was in the merit list of MHAs letter at Sl. No.37. She requested that her name may be re-nominated for appearing in the current years test also, for deployment/appointment to the UN Missions, as she understood that her previous selection will expire at the year end of 2012.
18. There had been a change in both the Political and the Administrative Regimes in the State of Tamil Nadu in the meanwhile. The new DGP also forwarded this representation of the applicant to the State Government very promptly, through his letter dated 19.5.2012, which was received in the Home Department on 21.05.2012, referring to the MHA/GoI letter aforesaid, and recommending that the willingness of the applicant for deployment with UN Peacekeeping Mission (UN SAT 2012-13) on deputation basis may be forwarded to the MHA/GoI early. It was not as if either the DGP or the State Govt. could have been unaware at that time about the above reproduced para 9 of the MHA/GoI letter, or the presence of the name of the applicant in the body of that MHA/GoI letter itself, at Sl. No.37 of the Merit List reproduced therein.
19. Once again, with appreciable promptness, Note of Home (Police-1) Department to enquire as to whether any disciplinary proceedings/vigilance enquiry were pending against the applicant was sent to the Home (SC) Department very next date on 22.05.2012 itself, and the response of the Home (SC) Department also was very prompt, and it wrote NIL-, signed on 22.05.2012 itself, and sent the file back to the Home (Police-1) Department on the same day. Again with exemplary efficiency, the Home (Police-1) Department put up a Note on 29.05.2012 seeking orders to submit a Circulation Note after favourable orders. The Dy. Secretary (Police-1) approved the same on 30.05.2012, and the Principal Secretary, Home Deptt., approved it on 31.05.2012, with remarkable efficiency.
20. The very next day on 01.06.2012, the Note for Circulation, this time in English language, and not in Tamil, was put up by the Home (Police-1) Department for obtaining orders of the new Honble Chief Minister on the proposal to accept the request of the applicant, as recommended by the DGP, and to forward the applicants willingness, with her bio-data and P-11 Form to the MHA/GoI, for consideration of her case for deployment with UN Peacekeeping Mission (UN SAT 2012-2013) on deputation basis. The Under Secretary signed on 02.06.2012 and the Deputy Secretary signed on 04.06.2012. The Principal Secretary wrote his recommendation on 04.06.2012 stating The officer, recently selected for the IPS, has opted to work with UN Peacekeeping Missions. There is a shortage of SPs in the State. This could be considered as a special case, signed on his noting on 04.06.2012, and, thereafter, perhaps as an afterthought, added a comma and the words if deemed fit.
21. The Honble Chief Minister did not approve or reject the proposal, and after 46 days the Chief Ministers office returned the file without any orders whatsoever on the Note for Circulation through CMO No.1502/A2/2012, with the noting dated 14.07.2012 that the file may be returned to the Home Department. The file was ultimately returned to Principal Secretary, Home Department on 21.07.20112. The Home (Police-1) Department then noted on 23.07.2012 that the Circulation Note, and the Note of the office of Chief Minister, show that the Honble Chief Minister has returned the file without its being approved, and it was proposed that hence no further action was called for in the file, and the papers may be lodged, and orders were sought in this regard, which was approved by the Dy. Secretary (Police-1) on 23.07.2012, and by the Principal Secretary Home Department also on 24.07.2012. That file was then consigned to records/lodged. Nobody gave a thought to the generally accepted proposition that if there has been no rejection of the proposal, it could also have meant an automatic approval.
22. Further, nobody in Home (Police-1) Department thought it fit to send a reply to either the DGP, or to the applicant, to intimate them even about their apparent understanding that since the Honble Chief Minister had not approved the proposal put up to her as mentioned in Para-4 of the Circulation Note, already described above, the proposal had been understood by them to have been rejected, and the file had been lodged, and sent to records. The DGPs office files, which we shall discuss shortly, disclose the repercussions of this decision of Home (Police-1) Department of Tamil Nadu Government to not at all disclose the result or outcome of the request of the applicant, which had been favourably recommended and forwarded by the DGP, not being communicated even to the DGP himself, and the file concerned itself being lodged and sent to records. The result, however, was that for six months neither the applicant, nor her DGP, and nor the MHA/GoI, which had included the name of the applicant in the very body of its letter dated 24/25.04.2012 itself, were ever informed that the willingness of the applicant, and her request for her application for UN SAT 2012-13 to be forwarded to MHA/GoI, had neither been rejected, and nor been agreed to and approved, by the then Honble Chief Minister in June/July 2012, while para 9 of the MHA/GoI letter, and the list sent in the body of that letter itself, had treated the applicant to having been already passed the UNSAT 2010-11 test held from 13th to 17th December 2010 but could not be deployed so far...
23. The third file contains a copy of the letter dated 11.01.2013 sent by Fax by MHA/GoI from New Delhi, addressed to the Home Secretaries and Directors General of Police of (i) NCT of Delhi, (ii) UT Administration, Chandigarh, (iii) Rajasthan and (iv) Tamil Nadu States, about four officers, including the only one officer of Tamil Nadu, the applicant before us, as having been selected for deployment with UN Peacekeeping Mission in South Sudan, which decision of the UNDPKO had been conveyed to the MHA/GoI through the Permanent Mission of India to the United Nations (PMI to UN, in short). When that message was received by Fax, in absolute good faith the DGP issued the letter dated 12.01.2013 (Annexure A-10) addressed to the Principal Secretary to Govt. Home (Police-1) Department, (giving 5 days notice to the State Government) stating that the officer was to be relieved on 17.01.2013, and he requested that the Government may ratify his action in this regard, and early orders of the Government were solicited. The DGP also issued a Memorandum dated 12.01.2013 to the Commissioner of Police, Trichy, at page-25 of the file. Nowhere from this correspondence it is apparent that the DGP did not have the genuine belief that as the top most officer of the IPS in the T.N. Cadre, and in view of the previous correspondence already existing in this regard, and in view of the International level commitments already given by the PMI to the UN at New York to the UNDPKO, he had the authority to so order for the applicant to be relieved after 5 days. Also, he had been kept in the dark by the Home (Police-1) Deptt. about the request of the applicant sent by him earlier having been lodged, without any decision whatsoever.
24. When the Principal Secretary, Home (Police-1) Department received the DGPs letter dated 12.01.2013, through the file noting same day, dated 12.01.2013, it was noted in Para-3 of the Note that the DGP has stated that due to paucity of time, the said officer had been ordered to be relieved on 17.01.2013, and has requested the Government to ratify the action taken by him in this regard. In Para-4 it was noted that the connected file had earlier been circulated to the Honble Chief Minister on 04.06.2012, but the file was returned from Honble Chief Ministers office on 21.07.2012 without any orders, and further action was then dropped. In the circumstances, the note said that the file was now being submitted for orders as to whether the action of the DGP in relieving the applicant without the orders of the Government may be ratified, and it was submitted that after the orders are passed, a Note for Circulation will be submitted accordingly. Somehow the crucial date of 17.01.2013 passed, and, thereafter, without noting para 9 of the MHA/GoI letter, and the list included in that letter, the Additional Secretary (Police-1) wrote on 24.01.2013 as to whether the DGP may be consulted as to how the willingness of the said officer had been sent to Govt. of India. The Principal Secretary, Home (Police-1) then recorded a note on 27.01.2013 as follows:-
Please put up a note recommending ratification or disciplinary action against the officer for orders of the Honble Chief Minister.
25. The third Note for Circulation was accordingly prepared in English on 30.01.2013, available at pages 5 to 8 of the Note file, in which in Para-2 it was noted that the connected file had been earlier circulated on 04.06.2012, but the same was returned from Chief Ministers office on 21.07.2012 without any orders, and further action was then dropped, and in Para-5 it was noted that since the Government had neither approved the relief nor forwarded the willingness of the said officer to MHA/GoI for consideration of her deployment with the United Nations Peacekeeping Mission (UN SAT 2012-2013) on deputation basis, a presumption was drawn that the officer had applied for the post in her personal capacity, and it was noted that she has also been relieved by the DGP without the orders of the Honble Chief Minister, and then it was proposed that the applicant may be recalled immediately, and her explanation called for, as to how she went abroad without Government permission, in violation of the Conduct Rules.
26. When this Note for Circulation was put up to the Honble Chief Minister on 30.01.2013 itself, this time there was no delay, and the Under Secretary, the Principal Secretary, and the Honble Chief Minister also, all signed the file on the same day and date of 30.01.2013. Thereafter, once again the same day on 30.01.2013 two drafts were also put up, one addressed to the DGP, by name, asking him to recall the applicant immediately, and send a compliance report to the Government, and second an extract of the Circulation Note to be given to the Home (SC) Department in-charge of initiating disciplinary proceedings for pursuing the matter further. With further astonishing speed the DGPs office also, on the same very eventful day and date, i.e., on 30.01.2013, sent a Fax Message accordingly to the applicant with copies to MHA/GoI and to the National CIVPOL Centre, which has been filed as an Annexure A-11 (colly) of the OA.
27. The applicant had received the Fax message dated 30.01.2013 through the National UN CIVPOL Centre, whereafter she immediately approached the National UN CIVPOL Centre requesting them to relieve her, but they had refused to do so. Very admirably, the MHA/GoI (Police Division-II) PMA Cell wrote back the very next day on 01.02.2013, available in this T.N. Government file at page-49, saying that since the nomination of the applicant with UNMISS had already been approved by the UNDPKO, New York, and all the travel formalities of the applicant had also been finalized, as such, the DGPs request to withdraw the name of the applicant from the UN deployment with UNMISS had not been approved by the MHA/GoI.
28. The applicant was clearly unnerved by this sudden development and sent through E mail her letter dated 01.02.2013, which is at page 57 of the file, in which she had submitted that she had been relieved from the post of DCP, Law and Order, Trichy, as per office Memorandum dated 12.01.2013, and that she had reported to the National UN CIVPOL Centre under the MHA/GoI, New Delhi. Thereafter, she had also submitted that she had also been served with a copy of the letter of MHA/GoI, (Police Division-II) PMA Cell dated 01.02.2013, stating that the DGPs request for withdrawal of her name for deployment with UNMISS had not been approved at this stage. After submitting both these facts to the DGP, in the end she had requested her DGP to kindly issue suitable instructions to Ministry of Home Affairs, Govt. of India, New Delhi and National UN CIVPOL Centre to relieve me immediately. From this, therefore, we are not able to discern any misconduct on the part of the applicant as on that date, to intentionally disobey the instructions of the DGP, conveyed through his Fax message dated 30.01.2013, but rather a desperate plea from her that since she was already under the control of the National UN CIVPOL Centre, from which she could have been relieved only with DGPs intervention, she had therefore requested the DGP to coordinate with MHA/GoI and UN CIVPOL Centre, to get her relieved immediately.
29. The DGP, T.N., replied to the MHAs letter dated 01.02.2013 through Fax message (at page-59) stating that the applicant was relieved to report for preliminary arrangements for joining UN Mission in South Sudan subject to ratification by the State Government, but that the State Government has since informed that her deputation has not been approved, and hence the applicant need not be deputed for UN deployment with UNMISS. On 04.02.2013, Additional Secretary, Home (Police-1) Department, T.N. Secretariat, also wrote to the Director (Pers), Police Division-II, PMA Cell, MHA/GoI, stating that the willingness of the applicant for her nomination for deputation to the United Nations Mission in South Sudan was not approved by the State Government, and had not been duly forwarded to the Govt. of India. Pointing out the Instruction-7 of Guidelines for Deputation of members of the All India Services under Rule 6(2)(ii) of the Cadre Rules, he had stated that all deputationists could have been considered by the MHA/GoI not only with the consent of the officer concerned, but with the approval of the Cadre Controlling Authority, and if the officer is in his cadre, the Cadre Controlling Authority would mean the State Government, and he had, thereafter, requested MHA/GoI to relieve the applicant, to enable her to report back to the State Government immediately, and it was also added that Vigilance clearance had not been granted in respect of the said officer, and it was, therefore, surprising that MHA/GoI had forwarded her application (in personal capacity) to the United Nations. This letter also did not talk about the contents of the above cited para 9 of the MHA/GoI letter, and the list of already selected Officers, including the applicant, contained in the very body of that MHA/GoI, letter.
30. Thereafter, the MHA/GoI replied to the Additional Secretary to the Govt. of T.N. through their letter dated 13.02.2013, running into three pages, pointing out the factual position that the applicants willingness had been forwarded by the Principal Secretary to Govt. of T.N. himself through his letter dated 04.10.2010, along with Vigilance clearance, that she was selected in UNSAT 2010-2011, and placed at Sl. No.101, and that the CVs of all the selected candidates, along with merit list, were provided to the UNDPKO, for further action on need basis/eligibility required for a particular UN Mission. It was also pointed out that the deployment of UN CIVPOL Officers is a continuous process, and as and when the deployment orders are received from UNDPKO, the MHA/GoI requests the State Government concerned to relieve the listed officers to report at the National UN CIVPOL Centre to complete their travel formalities, including stitching of U.N. Uniforms, procurement, logistic items etc., on personal cost of the individual Police Officer, and prior to their departure, their luggage are sent 03 days in advance through DHL/Airport Cargo, and that it was only as per the existing and established procedure that immediately on receipt of UNDPKOs selection for deployment of the applicant, along with three other lady Police Officers, with UNMISS, the MHA/GoI had on 11.01.2013 requested the concerned States/UT Administrations to relieve the four officers to report to the Commandant, National UN CIVPOL Centre by 17.01.2013, to complete travel formalities, and that all the officers had reported at the National UN CIVPOL Centre along with proper relieving orders, including the applicant, who had also submitted the disciplinary/Vigilance clearance issued by the Director, Vigilance and Anti-corruption, Tamil Nadu, dated 18.01.2013, and the DGP, T.N. letter dated 12.01.2013 and Commissioner of Police, Tiruchirapalli letter No. A2/1332/2013 dated 13.01.2013.
31. It was further explained by MHA/GoI that there was a continuum of events, which started with the nomination of the applicant by the State Govt. for the UN SAT 2010-2011 itself, and, therefore, it was not a case of fresh selection. Accordingly, it was clarified that the formalities for her deployment were completed, including issuing of UN Index Numbers, Diplomatic Passport, VISA, Medical/vaccination, Procurement of clothing/equipments, and other items, as per the specifications of the United Nations, and that in this manner, the deployment process of the applicant had been done by MHA/GoI as per the prescribed practice only. Thereafter, it was explained further that withdrawal of her name from the list of nominated Officers after completion of all travel formalities, including issuance of UN Index Number and Air voucher by UNDPKO, would have been an embarrassment for the Govt. of India, and could have also affected the future deployment of Indian Police Officers with various UN Missions. It was further mentioned that in fact the MHA/GoI had been insisting with the UNDPKO, New York, to increase the strength of Indian CIVPOL Officers at various UN Missions abroad, and, therefore, last minute withdrawal of the name of the officer, whose name already stood approved for a particular Mission by UNDPKO, would have jeopardized the international level commitments of MHA/GoI with UNDPKO. It was also stated that the applicants deputation was done in the National interest, as she is representing the country to supplement the United Nations global peacekeeping process. It was further clarified that the applicant, along with other three officers from other States/UTs, had already been deployed with UNMISS w.e.f. 05.02.2013 for a period of 12 months.
33. On receipt of this MHA/GoI letter, another fourth Note for Circulation was prepared in the Govt. of T.N. file on 14.02.2013. In this Note for Circulation, the very premise for preparing the Note for Circulation started as if the applicant had been deployed with United Nations Peacekeeping Mission pursuant to UN SAT 2012-2013, while the MHA/GoI letter dated 13.02.2013 was very clear that the applicants deputation was a culmination of the continuity of events, which had started with the nomination of the applicants name for UN SAT 2010-11, for which her name and willingness had been duly forwarded by the Principal Secretary to the Government of T.N. on 04.10.2010 (with the then Honble Chief Ministers approval). The Note for Circulation prepared this time nowhere mentioned the above cited stand of the MHA/GoI properly, and presumed that since it had been earlier indicated that the validity of the UN SAT Test 2010-2011 was for 18 months only, the applicants selection on the basis of UN SAT 2010-11 had expired. It was further noted in this Note for Circulation that the second willingness given by the applicant in May 2012 for deployment with United Nations Peacekeeping Mission (UN SAT 2012-2013) on deputation basis was considered, and when the connected file was circulated on 04.06.2012, it was returned from Honble Chief Ministers office on 21.07.2012 without approval, and further action was dropped. After noting the contents of the Govt. of Indias letter dated 13.02.2013, the Circulation Note had stated that the validity of the UNSAT test held in December 2010 was for 18 months only, while the Govt. of India had asked to relieve the officer on 17.01.2013.
34. This Note for Circulation did not take into consideration the fact that the validity or extension of the validity of UN SAT Test could only be decided by the United Nation itself, and not even by the MHA/GoI, and certainly not by the State Government of T.N. Para-6(ii) of the Circulation Note had further stated that the vigilance clearance relied upon by the MHA/GoI was an internal communication within the DGPs office, and had gone on to state that it cannot be said that as the Cadre Controlling Authority of the applicant, i.e., State Government, had accorded the approval at the time of her appearing in the UN SAT test. Even though the Govt. of India had in its letter dated 13.02.2013 clearly indicated that the applicant along with three other officers had already been deployed with UNMISS w.e.f. 05.02.2013 for a period of 12 months, the Para-6(iii) of the Note for Circulation had still gone on to state that since the pay and allowances are to be paid by the lending authority, therefore, the officer was still technically in the State Cadre, even while being in South Sudan, and that the consent of the State Government was still necessary for her deployment abroad. Even on 14.02.2013, when the officer was already serving with the U.N. in South Sudan, Para-6 (iv) of the Respondent No.2-State of T.N.s Circulation Note stated that since the officer was even now attached to the State Government for the purposes of pay and allowances, her being deployed in the UN Peacekeeping Force was still while being in State Government duty, and hence the State Government had the full powers to recall the applicant from her foreign deployment.
35. Thereafter, in Para-7 of the said Circulation Note, it was submitted for orders of the Honble Chief Minister as to whether the MHA/GoI may be addressed to recall the applicant from her deployment with United Nations Mission in South Sudan, so as to enable her to report back to the State Government immediately. This time also the Additional Secretary signed the file the very next day on 15.02.2013, but the Honble Chief Minister did not sign the Circulation Note put up on the file, and the Principal Secretary recorded the same day on 15.02.2013 the Honble Chief Ministers orders as follows:-
Honble Chief Minister has ordered that the officer may be recalled immediately. Hence the letter to Govt. of India may be put up advancing the reasons mentioned at Para-6 and ask for her recall.
36. A draft letter was accordingly put up, which was signed by the Principal Secretary to Government Home (Police-1) Department on the very same date on 15.02.2013, and sent to MHA/GoI by Fax Most Immediate, which is available at pages-97-99 of the file, which stated as follows:-
2. With reference to your letter dated 13.02.2013, I am to state
(i) that the Government of India had indicated that the validity of UNSAT test held in December 2010 was only for 18 months i.e., upto June 2012. However, the Government of India has requested to relieve the officer on 11.01.2013.
(ii) The Vigilance Clearance should be given by the Cadre Controlling Authority i.e. the State Government. However, the vigilance clearance as relied upon by the Ministry of Home Affairs is an internal communication and it cannot be taken as Vigilance Clearance.
(iii) Further the Officer is even now attached to the State Government for purposes of pay and allowances. This is to be viewed as the officer being deployed in the UN Peacekeeping force while being in State Government duty.
3. By taking into consideration of the above, I am to request that Ministry of Home Affairs, Government of India arrange to repatriate/recall Ms. Sathiya Priya, IPS, immediately so as to enable her to report back to the State Government.
37. File No.R.Dis. 119431/GB IV(1)/2010 of the Office of DGP, T.N., fully relates to the events of the period of the year 2010, in which, after having nominated 4 other officers, the name of the applicant was also nominated belatedly as the 5th IPS Officer from the State of T.N. for appearing at the UN SAT 2010-11, and we need not discuss the detailed contents of this file.
38. From File No. 087058/GB IV(1)/2012 of the Office of DGP, T.N., it is apparent that on the basis of the letter dated 24/25.4.2012 of MHA, GoI, even though fresh nominations of not more than five Police Officers had been sought for deployment with UN Peacekeeping Missions under UN SAT 2012-2013, and in Para-9 of that letter, the further directions had been issued in respect of those Officers who had passed UN SAT 2010-2011 test held from 13th to 17th December 2010, but could not be deployed so far, and the States were asked to again nominate their names to re-appear for UN SAT Test 2012-2013, in addition to their regular nominations. As already mentioned above, in the list enclosed to that letter, the names of 77 such left over Officers had been included, in which the name of the applicant appeared at Sl. No.37, according to her UN SAT 2010-11 Seniority No.101. Therefore, it is clear that the Respondent No.2 State of T.N., to whom the MHA/GoI letter was addressed, was fully aware that the Seniority Number of the applicant from her previous selection in UN SAT 2010-11 had not yet been discarded at all, either by the United Nations, or by the MHA/GoI. When the applicant once again gave her willingness, and the same was put up on 18.05.2012, and the DGP gave approval to the same on 19.05.2012, there is no noting in the DGPs file thereafter till 13.09.2012, showing clearly that even till then the Office of DGP was completely in dark about the decision of the State Government in respect of the letter sent by the DGP to the Principal Secretary Home (Police-1) Department on 19.05.2012, which is at page-85 of this file.
39. Since the DGP had been kept in dark by the State Government about the approval or rejection of the proposal sent by him to the Principal Secretary of the State Govt., when the MHA/GoI PMA Cell letter dated 03.09.2012 was received on 04.09.2012, enclosing thereby the list of the officers nominated for 5 days UN pre-SAT Trainings from 17th September to 12th October, 2012, and in the remarks Column, in respect of those who had already cleared the UN SAT 2010-2011 earlier, their Merit List Numbers had been noted against their names, and the name of the applicant was in the last lot of 5 days Training from 8th October to 12th October, 2012 at Sl. No. 253, the DGPs Office promptly processed the proposal for her being sent on this Training also, which was duly approved by the DGP on 16.09.2012, and the draft letter was also approved, marking a copy thereof to the Principal Secretary, Home Deptt. On the same date an Office Memorandum was issued to the Commissioner of Police, Trichy City, asking him to relieve the applicant for undergoing the said training, along with permission to carry arms and ammunitions along with her. The applicant attended this 5 days pre-SAT Training, without the State Government raising any objection at that point of time.
40. Therefore, it is very clear that it was not as if the applicant had ever directly applied to the MHA/GoI, or to the United Nations, by-passing her superiors, and had gone even for any training, without the due permission of the DGP, T.N. State or without proper authority for attending the second Training for UNSAT 2012-2013, carrying her 9mm pistol and 50 rounds of 9mm cartridges for firing practice. Copy of the communication dated 16/17.09.2012 addressed to the MHA/GoI (at pages 109&111 of File No.087058/GBIV(1)/2012 of the Office of the DGP, T.N) was duly marked to the Principal Secretary, Home Department of the Respondent No.2-State of T.N., but there was not even a whisper of a reaction from the State Government. The State Govt.s Home Secretary did not inform anybody about anything. The file does not show any reply having been received by the DGP in respect of his having granted permission on 16.09.2012 to the applicant to attend the said UN SAT 2012-2013 Training from 08.10.2012 to 12.10.2012 (pages 113 & 155 of the said File No.087058/GBIV(1)/2012). Therefore, the Note for Circulation as prepared this time by the T.N. Govt. Secretariats Home Deptt. was wrong to assume and state that the applicant had participated in the UN SAT 2012-2013 test without obtaining permission of the State Government.
41. Problem arose only because after the applicant had attended one of the rounds of Trainings of UNSAT 2012-2013, before the results could be declared, the MHA/GoI, informed the Home Secretaries and the DGP of NCT of NCT of Delhi, UT Administration Chandigarh and State of Rajasthan and T.N. about UNDPKO having conveyed through the PMI at UN, New York, about the selection of four Indian Police Officers for deployment with United Nations Mission in South Sudan on the basis of their earlier selection itself. In fact, the applicants submission that for this she was interviewed telephonically by the UNMISS on the basis of her UN SAT 2010-2011 selection itself, has also gone unrebutted by the Respondent No.2 State of T.N.
42. Through this letter dated 11.01.2013, the date of arrival of these officers in the Peacekeeping Mission area had been indicated as 27.01.2013. This International level requisition of UNDPKO, received through PMI to UN, and the MHA/GoI, was very rightly acted upon by the DGP in good faith, since, as has been discussed above, he was aware of the applicants selection in UNSAT 2010-2011, and he had been kept in dark about lack of any decision whatsoever on the part of the State Government on his earlier recommendation to the Principal Secretary Home (Police-1) Department in regard to the applicants participation in UNSAT 2012-2013.
43. As there was an element of urgency in the International level communication from UNDPKO to the MHA/GoI, conveyed through the PMI to UN, an innocent Note was put up by the office of DGP, T.N., regarding this request of United Nations conveyed through MHA/GoI, and at Paragraphs 2,3 & 4 of the Noting dated 12.01.2013, it was recorded as follows:-
(1)xxxxxxxxxx(Not reproduced here) (2) In this connection, it is submitted that eventhough, the Government is the competent authority to relieve the above said officer, the Director General of Police, Tamil Nadu, may decide to relieve the officer due to paucity of time and address the Government for ratification orders.
(3) Hence, it is submitted for orders, whether the above said officer may be relieved and the C.O.P Trichy City to relieve forthwith.
(4) Subject to approval, a draft memo to COP, Trichy City with a copy marked to Director (Pers), GOI, MHA, Home, New Delhi and letter to Government are put up below for favour of approval please.
44. The IGP (Administration) then suggested at Para-5 as follows:-
Sir, May refer to notings above. She has to be relieved by January 17th, Para 2 & 3 may be approved. Subject to approval draft letter to Govt. and COP Trichy City are endorsed. For orders please.
45. The proposal was approved by the DGP at Para-6 on 12.01.2013. Thereafter on 17.01.2013, a note was put up as follows for IGP (Administration):-
8. It is also submitted Tmt. Sathiya Priya, IPS has been selected for deployment with UN Mission in South Sudan and relieving orders were issued to attend the training. In this connection, Disciplinary/Vigilance clearance is absolutely necessary. Hence, the vigilance clearance may be requested from Director, V&AC CNI.
9. Subject to approval, a draft letter to Director, V&AC, CNI is put up below for approval please.
46. The same was approved by the IGP (Administration) on 17.01.2013.
47. The reply this time was time put up to the ADGP through Para-11&12 stating as follows:-
11) Kindly see the letter of Director, V&AC, Chennai put up at page No.35 of wherein they have stated that as on date, no enquiry/case is pending against Tmt. Sathiya Priya, IPS, DCP (L&O) Trichy City. This may be informed to Home, New Delhi through HS/CM.
12) Subject to approval, a draft letter to Govt. is put up below for approval please.
48. The same was approved by the ADGP (Administration) on 24.01.2013 in Para-14. It is, therefore, clear that at no stage of the processing of her case in the DGPs office, either the applicant was aware of her second request regarding UNSAT 2012-2013 having not been agreed to by the Honble Chief Minister, and the file having been consigned to record, and nor had the applicant at any stage approached either the United Nations, or MHA/GoI, directly, in any sense whatsoever, and nor had the office of the DGP, the DGP himself, or the ADGP (Administration), had any inkling whatsoever about the fate and outcome of the second request of the applicant for attending the UNSAT 2012-2013 training not having been accepted, and even the forwardal of her candidature not having been acceded to by the Honble Chief Minister, and that even the relevant file was consigned to records, since no reply was ever received in the DGPs Office from Home (Police-1) T.N. Government. We need not reproduce the different communications issued, some of which have already been brought on record in the OA. Nobody seems to have, at the same time, noticed and brought on record that the applicants selection by UNDPKO was actually as a result of her selection in UN SAT 2010-2011, and not on the basis of UNSAT 2012-2013, the result of which later Training had not yet been declared at all !!
49. The message from UNDPKO to the PMI to UN dated 09.01.2013, is available at page 37 to 45 of the file, which was forwarded by the PMI to UN to four concerned officers at Delhi, three in MHA, and one in Ministry of External Affairs on 10.01.2013, and is available at page 35. The Secretariat file also contains thereafter at pages 47-48 the letter through which on the very eventful date of 30.01.2013 the Home (Police-1) Department directed the DGP to recall the applicant immediately, and send a compliance to the State Government. The same day on 30.01.2013, the Circulation Note extracts were sent to Home Department on the subject that the applicant had gone abroad without Governments permission, and explanation had to be called for from her. As we have already discussed above, an urgent Fax reply dated 01.02.2013 was sent by Director (Pers.) of PMA Cell, Police Division-II of MHA/GoI, referring to the DGPs earlier letter and OM dated 12.01.2013, and pointing out that since the nomination of the applicant for deployment with UNMISS had already been approved by the UNDPKO, New York, and all the travel/deployment formalities had been finalized, the DGPs request to withdraw the name of the applicant from the U.N. deployment with UNMISS had not been approved by the MHA. Copy of this message was marked to the Chief Secretary, State of Tamil Nadu, the Commandant of the National UN CIVPOL Centre, and to the applicant, who was at that time serving with the U.N. already, at the National UN CIVPOL Centre, Delhi.
50. The DGP was caught between the MHA/GoI and the State Governments instructions, and he wrote a D.O. letter on 01.02.2013 itself, addressed to the Principal Secretary to the Government of T.N., Home Department, enclosing therewith a copy of the Fax message received from MHA/GoI, that the applicant cannot be withdrawn from UN Deployment with UNMISS at this late stage, and also mentioning that the applicant had also sent a message seeking and requesting the State Government to issue instructions to MHA/GoI and National UN CIVPOL Centre to relieve her immediately, and the Principal Secretary, Home Department of Tamil Nadu was requested by the DGP for taking up this matter with MHA/GoI.
51. Though the Communication dated 30.01.2013 from Home (Police-1) Department to DGP did not give any reason whatsoever, and had only asked the DGP to recall the applicant and send compliance to the Government, the fourth Circulation Note, prepared on the same date, in parallel, had stated that she had gone abroad without Government permission, and her explanation has been called for. But, as we have discussed above also, no orders whatsoever had been passed on the applicants request, and the Circulation Note which was put up in this regard to the Honble Chief Minister, had been returned without any orders whatsoever, without being accepted or rejected. Therefore, one fails to understand as to how there was a change of stand on the part of the T.N. State Government, and as to on what basis the Home (Police-1) Department could say that permission to the applicant had been rejected, when it had not actually been rejected, and no orders whatsoever had been passed by the Honble Chief Minister on the relevant Circulation Note. The State Government had further wrongly stated in its letter dated 04.02.2013 (at pages 61 & 62) addressed to the Director (Pers.), Police Division-II, PMA Cell, MHA/GoI, that the applicants nomination for such UN CIVPOL deputation was not at all approved by the State Government. For this statement to be made to the MHA by the T.N. State Government, it was necessary for the approval accorded by the then Chief Minister initially to be mentioned, and also to recognize the fact that it was necessary for the incumbent Honble Chief Minister to have recorded reasons, agreeing with the comment of the Principal Secretary that there was a shortage of SPs, and, therefore, the Circulation Note having been rejected, which rejection was never so recorded. Therefore, the very basis of the letter written by the State Government to the MHA/GoI on 04.02.2013 at pages 61 to 62 did not exist. This file also contains another letter dated 04.02.2013 sent to the applicant c/o Commandant, National UN CIVPOL Centre stating as follows:-
You are requested to report to the Government in person (by 06.02.2013) about the sequence of events that led to your choice in the UN peace keeping force. You are requested to refer to the DGPs message cited in the reference. It is also added that an officer is allotted to a State cadre and any deputation is permitted only with the approval of the cadre controlling authority. Neither have you taken clearance of the Government at the stage of filing of nomination nor at the stage of getting relief.
52. It is very strange as to the manner in which, without any adverse orders to that effect having been passed by the Honble Chief Minister of Tamil Nadu when the Circulation Note was actually put up for orders, and a presumption for the proposal having been approved could also lie, the Home (Police-1) Department of the State Government had taken it upon itself to undermine the authority of the States DGP to deal with the cadre of the IPS officers under him, by using the language as reproduced above, when the applicant had been duly and properly relieved under the orders of the States DGP.
53. However, the DGP then himself, in his own handwriting, at Para-15, wrote a Note as follows:-
(1) Please send a report to Govt. today itself.
(2) Ask CMT Delhi Bn. For copies of ack. If SP did not give the ack., get statements from the concerned.
(3) Get a report from Devadoss also through SSB. Some messages were asked to be served through him.
54. Thereafter as per the orders of the DGP, a draft letter to the Secretary to Govt. Home Department was also put up for approval, which was approved by the ADGP/A on the same date on 05.02.2013. The rest of the details about as to what transpired thereafter have already been discussed in detail above.
55. What was not brought on record in the OA, but is evident from the files produced, was that on 28.01.2014, the MHA/GoI, PMA Cell, had written to the Principal Secretary (Home), Govt. of T.N., and to that of NCT of Delhi, stating that the PMI to UN had requested for Tour of Duty (TOD) extension for six months upto 04th August, 2014 in respect of Ms. Kaushal Pandey, SI, Delhi Police, and the applicant from T.N. Police, whose then present TOD was to expire on 04.02.2014. It was requested by MHA/GoI to intimate concurrence/no objection for such extension of TOD in respect of above officers by return Fax. (Page 215 of File No.6569/GB-I(1)/2013 of the Office of the DGP, T.N.). Enclosed was the TOD Extension Request dated 22.01.2014 from Col. DG Misra, Military Adviser at the PMI to the United Nations, New York (page 217 of the above file). These requests were also forwarded by the DGP to the Principal Secretary (Home) Department through his letter dated 29.01.2014 (page 219 of the above file), but through their letter dated 01.02.2014 (page 221 of the said file) Home (SC) Department of Govt. of T.N., and not the Home (Police-1) Department of T.N., directly replied to the Secretary MHA/GoI, to inform that TN Government had refused the concurrence for extension of the applicants Tour on Duty for six months from 05.02.2014, and had also requested MHA/GoI to arrange to direct the applicant to report back to the State immediately, and a copy was marked to the DGP with a request to communicate the same to the officer concerned. Even till end January, 2014, there was no statement to the effect that the Respondent No.2 State of T.N. was not treating the applicants deployment with the UNMISS as a Tour on Duty (TOD) at all.
56. DGP immediately wrote on the same for ADG (Admin) for urgent necessary action, adding that the applicant may be available in Delhi, which she was not. This Government letter was also sent to the applicant through endorsement dated 01.02.2014, through the Commandant, T.N. State Police VIIIth Bn., based at New Delhi, who was requested to serve a copy to the said Officer, and send a copy to the Chief Office immediately. The applicant completed her deployment in South Sudan from 05.02.2013 till 04.02.2014, and reported back to the National UN CIVPOL Centre on 06.02.2014, and completed the debriefing formalities, and she was relieved from the National UN CIVPOL Centre, New Delhi on 07.02.2014. She travelled back to Chennai without availing any joining leave, and reported before the DGP on 08.02.2014 (A/N) as per her joining report available in this file.
57. Also available on record is the letter from Commandant, T.N. State Police, VIII Bn., Tihar Jail Complex, New Delhi, dated 06.02.2014, addressed to the ADGP (Admin.), in which it was reported that the endorsement dated 01.02.2014 was actually served upon the applicant only on 06.02.2014, and the acknowledged copy of the same was being sent therewith. The applicant having submitted her joining report on 08.02.2014 A/N, the Office of DGP put up a Noting on 10.02.2014 for orders as to whether the joining report of the officer may be sent to the State Govt., which was approved by the ADGP (Admin).
58. The applicants joining report was then forwarded to the Principal Secretary to Govt. of T.N. Home (SC) Department, stating as follows:-
On completion of the UN deployment with UN Mission in South Sudan, Tmt. M. Sathiya Priya, IPS, Superintendent of Police has reported for duty on 08.02.2014 AN at the Office of the Director General of Police, Chennai. A copy of her joint(sic.) report is sent herewith for information and necessary action.
59. In the meanwhile, while the applicant was representing the country, and risking her life working in South Sudan with the United Nations Peacekeeping Mission, the Office of the DGP was activated by an RTI application dated 04.10.2013 filed by some unknown civilian Shri M. Thuyamurthy, seeking the information as follows:-
1) kindly supply the action taken by the Tamilnadu police against SP Ms. Sathiyapriya for alleged disobey of orders of the TN government and proceeding to Sudan.
2) kindly furnish a legible copy of the records available on the file of Tamilnadu police vis-`-vis the said incident.
60. In respect of the RTI Petition, the RTI Section was informed on 20.01.2014 that no action was taken in respect of her visit to South Sudan, but on the same date, the Superintendent of the concerned section was asked to trace out and produce the file in which the applicants application for her UN deputation was forwarded to the Government.
61. At the prodding of this strange third party RTI application, a draft letter was prepared on 10.10.2013 for approval by the DGP, which he did not approve. The Note dated 18.01.2014 was first signed by the DGP, T.N., addressed to the Addl. DGP, which stated as follows, and then he himself cancelled his own signatures, and wrote need not be issued:-
Please refer to file in Rc No.40438/Con.II(2)/2012 regarding charge letter to be served on Tmt. Sathiya Priya. This file does not contain an earlier application which Tmt. Sathiya Priya had given in 2012 and which was forwarded to the State Government. I was informed that this nomination was not forwarded by the State Government. Please arrange to trace the file and put up.
62. Simultaneously on 03.01.2014, the DGP ordered for sequence of events to be prepared in a Tabular form, which was also put up by 08.01.2014. A Self-Contained Note was put up, but the DGP on 18.01.2014 added as follows:-
I think the SP has submitted her application for the deputation in 2012 and it was forwarded to Govt. Please put up that file. If I remember correct she attended some session during this period. Trace the file.
63. The DGPs office file was put up to the DGP on 28.1.2014, and a modified Note at Para-66 to 80 in tabular and descriptive form was put up for his consideration. Unfortunately these notes did not recognize the fact that the applicants selection was against her UN SAT 2010-11 test result, for which her candidature had been approved by the then Honble Chief Minister. Therefore, the DGP then pointed out to the earlier Self-Contained Note from para-47 onwards, and directed for a fresh charge Memo to be prepared, proposing for major penalty. That was also prepared on 11.02.2014, and the draft letter for sending that sequence of events and the draft charges to the State Govt. was put up for DGPs approval, along with the connected records on 21.02.2014. On 23.02.2014, the DGP desired the matter to be seen by the ADG and a more detailed covering letter to be enclosed, which was ultimately put up and corrected for being sent on 05.03.2014, and was then sent to the State Govt. thereafter. Nowhere it was mentioned that the applicants candidature had been duly approved by the then Honble Chief Minister for UN SAT 2010-11, on the strength of the result of which test only she had bagged the UN assignment.
64. It was after receipt of this letter from the DGP that the Home (SC) Department, through its G.O. Ms. No.231, dated 12.03.2014, placed the applicant, who was till then on compulsory waiting at Chennai, under suspension with immediate effect, and it was ordered further that the applicant shall not leave her headquarters at Chennai without obtaining the permission of the Principal Secretary to Government. The same day on 12.03.2014, this G.O. was received by IGP (Estt.) of DGPs Office, and was served upon the applicant, and acknowledged copy was then forwarded to the Government on 13.03.2014.
ANALYSIS OF THE FACTS EMERGING FROM THE FILES
65. From this very detailed explanation of the seven files submitted, and also from the above mentioned narration of facts and events as described in the sequence of events sent on 13.02.2014 by the DGP Office to the Principal Secretary, Home Department also, it is clear that while serving under the State Govt. of T.N., the applicant before us had made only two requests ever to the DGP. First was her belated request dated 03.09.2010 for permission to appear at UNSAT 2010-11, and second was her willingness letter dated 12.05.2012 for seeking permission to appear for the UN SAT Test 2012-13, requesting her name to be re-nominated, as she had already been selected earlier in 2010-11 panel. No communication from the applicant followed thereafter till her email message dated 30.01.2013 from New Delhi, addressed to the DGP, indicating her willingness to return, and praying for him to direct the United Nations authorities and the MHA/GoI to relieve her, so that she can then report back to the State Government. Apart from these three communications, there was no 4th communication from the applicant till 05.02.2013, which may have been mentioned by anybody in the file Notings, or may be available on record, either in the files of the T.N. Govt. Secretariat, or in the DGPs office files. The applicant had never sought any out of turn favour from either her DGP, or from the State Government of T.N., or from the MHA/GoI, or from the U.N authorities. Both times, on her request, she was duly sent for the UN Pre-SAT Training with proper authority even to carry her pistol and the ammunition, as we have already recorded above. The first time was with the then Honble Chief Ministers permission, and the second time only with her D.G.P.s permission, for her attending the training from 08.10.2012 to 12.10.2012, which permission to attend the training, carrying her pistol & ammunition, must have been within the powers of the DGP to be granted, and was so granted.
66. Also, it was not as if when the second time her case was processed, the Principal Secretary of the Home Department of T.N. Government was not aware that the applicant had already stood selected in UNSAT 2010-11 panel, and, therefore, her name was asked by the MHA/GoI to be re-nominated for UNSAT 2012-13, along with five other fresh names, in which, the Annexure of the letter itself contained her name in the list, and the legend and remark that she was one of the officers who already stood selected on the basis of 2010-11 UNSAT Test, but was still awaiting deployment.
67. After attending both the Pre-UNSAT Trainings, she returned to her duties in T.N. under the control of the T.N. Government, and the DGP of T.N. It was not as if the applicant had ever made a special request for her out of turn selection. In fact as she was the only single person from T.N., out of the 5 IPS + 10 other lower level police officials nominated from the State of T.N., the State ought to have been proud of at least one Officer from the State of T.N. having been found fit in the UNSAT Test, while there were so many from all the other States, U.Ts and CPMFs.
68. We do not know as to how a total stranger to the Governmental system, Mr. M. Thuyamurthy, could on 04.10.2014 file the RTI application mentioned above, straightaway asking questions regarding the action taken by the T.N. Police against the applicant for alleged disobedience of the orders of the Government and proceeding to Sudan. But it appears that the RTI application filed on 04.10.2013, was obviously a totally motivated and prompted RTI application.
69. Here, in the instant case, the problem and confusion arose because after the applicant had attended her second Pre-UNSAT 2012-13 Training from 08.10.2012 to 12.10.2012, even before its result could be declared, and there was no communication from UN CIVPOL Centre to MHA, or from MHA/GoI to the State Government regarding the status of the result of that second training, the applicant was telephonically interviewed and selected by the UNDPKO, New York, on the basis of her earlier UNSAT 2010-11 result itself. Then, when all of a sudden the fax message dated 11.01.2013 was received from MHA/GoI, the DGPs office correctly, and in good faith, decided to relieve the applicant for deployment with the UN Mission in South Sudan.
70. As we have discussed above, the DGPs office had been kept totally in dark by the T.N. Government Secretariat about the outcome of the DGPs earlier letter to the Principal Secretary regarding the request of the applicant concerning the second Training for UNSAT 2012-2013, on which the Honble Chief Minister T.N. had refused to pass any orders whatsoever. We can only assume and state that the order passed by the DGP on 12.01.2013, for relieving the applicant by 17.01.2013, in anticipation of Govt. approval, was passed by him absolutely in good faith, and with the total confidence that the State Govt. would uphold such an action of the senior most Police Officer of the State, which was in continuation of the previous sequence of events, about each of which event the State Govt. was fully aware, as we have discussed in detail above.
71. We do not think that even for a moment a thought would have crossed the mind of the then DGP, T.N., on 12.01.2013, when he was approving the relieving letter at the prompting of the MHA/GoI, that such consequences, as have followed thereafter, could ever follow. Even after the order dated 12.01.2013 had been passed by the DGP, and through Memorandum dated 13.01.2013, the applicant had been ordered to be relieved, with instructions to report at National UN CIVPOL Centre at New Delhi for her pre-departure formalities to be completed for the UN Peacekeeping Mission to South Sudan, the applicant cannot in any manner be found fault with for the actions taken in absolute good faith by her seniors, i.e., by the DGP on 12.01.2013, and by the Commissioner of Police, Trichy City, on 13.01.2013, for the issuance of which orders the applicant never even requested any of her superiors.
72. Both these orders of the DGPs Office and Commissioners Office, Trichy, specifically and clearly mentioned for the applicant to report at National UN CIVPOL Centre for her pre-departure formalities and further deployment with UN Mission in South Sudan, even though without realizing perhaps that her selection was against her merit in the UNSAT 2010-11 Test. It was not as if these OMs dated 12.01.2012 & 13.01.2013 did not recognize that the MHA/GoI had already communicated about the final selection of the applicant for her deputation to the UN Peacekeeping Mission in South Sudan for a period of 12 months. When the applicant was being relieved by her seniors, with full knowledge of the facts as narrated in the MHA/GoI letter dated 11.01.2013, which was followed by a reminder dated 21.01.2013, the applicant herself could not have done anything to change the course of action, even if she had wanted to do so, which was being followed by her superiors, at the prodding of the MHA/GoI. Even as late as on 24.01.2013, the DGP T.N. was still totally unaware of the real intention of the Govt. of T.N. regarding the applicants case, or of the past history of the case of the applicant, as his communication even then clearly said, in continuation of his office letter dated 12.01.2013, that as on date no enquiry/case was pending or contemplated against the applicant, and he had then once again requested the State Govt. to forward that Vigilance Clearance also to the MHA/GoI. The applicant was actually relieved on 16.01.2013 (A/N) as per the charge report available, and the certificate of transfer of charge available in the file No.8, and, even in between that period of 12.01.2013 to 16.01.2013, when the applicant was still under the control of the T.N. State Government, the State Government could have very well restrained and stopped her from being relieved, which it somehow chose not to do. It is the machinations within, and the handling of the files in the T.N. Govt. Secretariat, which has, thereafter, done all the mischief.
DISCUSSION OF ARGUMENTS ADVANCED
73. Heard. By way of arguments, learned senior counsel for Respondent No.2 State of T.N. Ms. Jyoti Singh had emphasized that the applicant had merely applied on 12.05.2012 for appearing in the UNSAT 2012-13 test, which application of hers had been forwarded by the DGP to the Tamil Nadu State Government, but since this application of hers was never forwarded to MHA/GoI by the Tamil Nadu State Government, the affidavit filed by the Respondent No.2-State of T.N. was right in this regard. She had further submitted that the applicant was admittedly selected in the earlier panel of UN SAT 2010-2011, but had emphasized that, thereafter, the second stage of that process, of the applicants deployment with the UN CIVPOL, should have also taken place then, with the approval of the Tamil Nadu State Government only, which stage had never happened. She had submitted that the Under Secretary of Tamil Nadu State Government did recommend that she should be sent, but the Principal Secretary (Home) had clearly mentioned that there is a shortage of IPS Officers, and, therefore, she cannot be spared. She had further submitted that there is no element of animosity or malafide, and only a Charge Sheet has been issued to the applicant, and the disciplinary enquiry has proceeded quite substantially thereafter. She offered no explanation as to why the applicants suspension had not been revoked, even after the Appellate Authority MHA/GoIs orders having been issued in this regard.
74. In her arguments, Ms. Jyoti Singh had taken the preliminary objection that the Principal Bench of the Tribunal does not have territorial jurisdiction to hear the present case, as the cause of action had not taken place at Delhi, but at Chennai, and, therefore, the proceedings would lie before the Chennai Bench of this Tribunal, since the Charge Memo (pages 27 to 29 of the OA) had been issued to the applicant at Chennai, and control over the applicant had always remained with the Government of Tamil Nadu as her Cadre Controlling Authority. She had further submitted that since the disciplinary enquiry against the applicant is still going on, unless that disciplinary enquiry is concluded, this Tribunal should not interfere in the matter.
75. It was further argued by her that only the MHA/GoI affidavit cannot be a reason for this Principal Bench of the Tribunal at Delhi to entertain jurisdiction, and that MHAs letter dated 13.02.2013, Annexure-WS/1, along with the written statement filed by the MHA/GoI, cannot be the basis for this Principal Bench of the Tribunal to assume jurisdiction. She had disputed that the applicant had ever passed out of the administrative control of the State Government, and had submitted that the administrative control of the State Government over an officer, even when deployed with the UNDPKO, never ends, because the State continues to pay the salary, even during the deputation-posting with the United Nations, and only some allowances are paid by the United Nations. She had drawn our attention to page 35 of the OA (Annexure A-2), Page-43 of the OA (Annexure A-10), Page-73 Tamil Nadu Govt.s reply and page-51 (Annexure A-11 of the OA), in which the DGPs order clearly stated that the applicant was relieved, but she emphasized that it was done only in anticipation of State Governments orders, which orders were never issued later.
76. Learned Senior counsel for Respondent No.2 had further raised the legal issue that the applicant had been suspended by the Tamil Nadu Government, and as on the date when the OA was filed on 10.10.2014, Shri Rajinder Nischal, Standing counsel for Respondent No.1-Union of India had accepted notice, but still MHA/GoI had gone ahead and had passed the order of revocation of the applicants suspension on 20.10.2014, which, according to the learned Senior counsel, was a violation of Rule-19(4) of the Administrative Tribunals Act, 1985, on the part of Respondent No.1, Union of India, as its action directly affected the prayer 8(b) made by the applicant in the O.A., which was pending consideration before this Tribunal, praying for quashing of the order of her suspension dated 12.03.2014 passed by the Respondent No.2 State Government.
77. In his submissions, the learned counsel for the applicant tried to seek shelter behind the paragraphs 8,9,10,14 & 15 of the Honble Apex Courts judgment in the case of Ajay Kumar Choudhary vs. Union of India through its Secretary & Anr. in Civil Appeal No.1912 of 2015 dated 16.02.2015 to submit that even an order for extension of suspension of the applicant had not been passed by the State Govt., and it cannot now be so passed because the Respondent No.1 Union of India, as the Appellate Authority, has since revoked the order of suspension, and, therefore, he had assailed the action of the Respondent No.2 State of T.N. in having still continued to place the applicant under suspension, and not revoked it, by not giving effect to the Appellate Authoritys order. He also sought shelter behind the judgment of this Tribunal in K.J. Kakanwar vs. Ministry of Women and Child Development in OA No.1005/2009, delivered on 14.09.2009 by a Coordinate Bench, but in view of the discussion of the case law as held by the Honble Apex Court, we need not dwell in detail on the strength which the learned counsel for the applicant sought to gather for this case from the Tribunals judgment in the said OA. Learned counsel for the applicant also produced a copy of the letter dated 07.02.2014 issued by the National UN CIVPOL Centre of MHA/GoI, in order to show that the applicant had left for UN Mission in South Sudan on 05.02.2013, and on her return one year thereafter, she reported for duty there itself on 06.02.2014 for debriefing, and was relieved from there, after such debriefing, on 07.02.2014.
78. On her part, the learned Senior counsel for the respondent No.2 also produced a copy of the Indian Police Service (Cadre) Rules, 1954, and pointed out to Para-5.1, which states as follows:-
5.1 Rule 6(2)(ii) of the IAS(Cadre) Rules and the corresponding rules governing the IPS and IFS enable the deputation of a member of the Service to an international organization, an autonomous body not controlled by Government or a private body, etc. in such cases, the Central Government is the authority competent to order such deputation and the consent of the State Government and the officer concerned is also required.
79. The learned Senior counsel further submitted that there is a proper format for the State Government issuing its concurrence for any such deputations, by producing a copy of an order dated 04.04.2014 issued by the Principal Secretary to Government, Home (Police-1) Department and addressed to Secretary, MHA/GoI, which is an example set of a forwardal letter, and a copy of the Home (Police-1) Department, G.O. (D) No.482 dated 28.06.2014, in which, through a speaking order, the State Government had decided to relieve one IPS Officer of 2004 batch to take up appointment for the post of Foreigners Regional Registration Officer at Chennai, in the Intelligence Bureau, on deputation basis, and insisted that such a specific order passed by the State Government was necessary to be issued before the applicant could have proceeded on the foreign assignment.
80. As mentioned earlier also, during her arguments on 24.03.2015 the learned Senior Counsel for Respondent No.2 State Govt. had also relied upon Rule-6 (2) (ii) of the IPS (Cadre) Rules, 1954, as substituted w.e.f. 21.05.1969, to submit that this was the only provision, which allowed the State cadre officers to be deputed for service under the Central Govt. etc. But in his rejoinder arguments, the learned counsel for the applicant instead emphasized upon the proviso below Rule-6 (1). The said Rule 6 states as follows:-
6. Deputation of cadre officers: 6(1) A cadre officer may, with the concurrence of the State Government or the State Governments concerned and the Central Government be deputed for service under the Central Government or another State Government or under a company, association or body of individuals, whether incorporated or not which is wholly or substantially owned or controlled by the Central Government or by another State Government.
Provided that in case of any disagreement, the matter shall be decided by the Central Government and the State Government or State Governments concerned shall give effect to the decision of the Central Government.
6(2) A cadre officer may also be deputed for service under:-
6(2)(i) a company, association or body of individuals, whether incorporated or not which is wholly or substantially owned or controlled by a State Government, a Municipal Corporation or a Local Body by the State Government on whose cadre he is borne; and 6(2)(ii) an international organization, an autonomous body not controlled by the Government or a private body, by the Central Government in consultation with the State Government on whose cadre he is borne.
Provided that no cadre officer shall be deputed to any organisation or body of the type referred to in item (ii), except with his consent;
Provided further that no cadre officer shall be deputed under sub rule (1) or sub-rule (2) to a post carrying a prescribed pay which is less than, or a pay scale, the maximum of which is less than, the basic pay he would have drawn in the cadre post but for the deputation.
Provided further that no cadre shall be deputed under sub rule (1) or sub rule (2) to a post (other than a post under the Central Government or under a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the Central Government) carrying a prescribed pay which is less than, or a pay scale, the maximum of which is less than, the basic pay he would have drawn in the cadre post but for his deputation.
(Emphasis supplied)
81. When the learned counsel for the applicant had sought shelter under the Proviso to Rule-6 of the IPS (Cadre) Rules, 1954, learned Senior counsel for Respondent No.2 Ms. Jyoti Singh had pointed out that MHAs affidavit does not rely on the said proviso, and pointed out to the MHAs affidavit at page-53 of the paper book. Learned Senior counsel for Respondent No.2 did not agree with Para-2 of the MHAs letter dated 01.02.2013, which can be seen/construed to be covered by the Proviso to Rule-6 of the IPS (Cadre) Rules, 1954, since it stated as follows:-
2. In this context, it is intimated that the nomination of Ms. Sathiya Priya, IPS for deployment with UNMISS has already been approved by the United Nations. Department of Peacekeeping Operations, New York and finalized all the travel/deployment formalities. As such, at this stage, your request to withdraw the name of Ms. Sathiya Priya, IPS from the UN deployment with UNMISS has not been approved by this Ministry.
DISCUSSION
82. We have given our anxious consideration to the facts of this case. As per the Fundamental Rules, once at the request of UNDPKO, communicated through MHA/GoI dated 11.01.2013, the applicant stood relieved in the A/N of 16.01.2013 from the control of T.N. Govt., the control over the movements and activities of the officer had passed from the State Government of T.N. to the MHA, GoI, and once her pre-departure formalities had been completed at the UN CIVPOL Centre, and she was assigned a U.N. Identity Number, and even handed over the travel vouchers, and had got the Blue UN Uniform stitched at her own cost, the control over her, in the Blue United Nations uniform, had passed into the hands of the United Nations Department of Peace Keeping Operations (UNDPKO).
83. Therefore, we refuse to accept the forceful contentions put forward before us by the learned senior counsel for Respondent No.2, State of T.N, that the applicant was well within the control of the State of T.N., even during the period when she was at Delhi at the National UN CIVPOL Centre, and also even when she was serving in South Sudan, just because the State Government of T.N. was still paying her salary throughout for this period. This obligation of payment of her salary throughout had been accepted by the State Government of T.N. at the time of forwardal of the applicants belated application for UNSAT 2010-2011 on 13.09.2010 itself, after her request having been duly approved by the then Honble Chief Minister of State.
84. In the counter reply filed by learned counsel Shri Rajeev Kumar, on behalf of Respondent No.1, Annexure R-4 dated 05.11.2012 was also enclosed, which stated as follows, but unfortunately a copy of the same was not marked to Respondent No.2 State of T.N., since it was an internal communication of Govt. of India from MHA/GoI, New Delhi to the Military Adviser at the PMI to UN, which once again goes to show that the plea of the applicant that her UN deployment was actually on the basis of her result of UN SAT 2010-2011 itself, the validity period of which had been extended up to 31.12.2012, is correct:-
From Home New Delhi To Col Manoj Tiwari, Military Adviser PMI to UN, New York, (Fax No. 001 212 4909656) No. 21023/07/2010-PMA (Vol-III) Dated 05th November 2012 Subject: UNMISS-Deployment to UNMISS (15 Police Officers) PMI to UN may refer to their E/Fax 45 dated 08th October 2012 and this Ministry communication of even number dated 01st November 2012 on the above mentioned subject.
2. In place of Shri Sahul Hameed, Shri Harinder Sigh Ghuman, Shri Rajan Singh and Shri Vijay Kumar who have not reported for deployment with UNMISS, this Ministry nominates following UN SAT qualified Lady Police Officers awaiting for deployment as their replacement:-01
SP Sathiya Priya Muniswamy IPS 07-02-73 Armed Tamil Nadu 101 02 SI Sarita Roy 29-09-80 Armed Chandigarh 119 03 Dy. SP Sushma Sharma 01-10-57 Armed Rajasthan 121 04 VW SI Kaushal Pandey 04-07-64 Un Armed Delhi 151
3. Their P-11(CV) are being sent through e-mail.
(Dinesh Mahur) Director (Pers) Telephone:23092933 (Emphasis supplied).
85. Fundamental Rule No.6 states as follows:
(a)xxxxxxxx(Not reproduced here)
(b) a Government servant may be treated as on duty-
(i) during a course of instruction or training in India.
(ii) xxxxxxx(Not reproduced here)
86. Therefore, during the period of her course of instruction regarding the United Nations pre-departure procedure, and appropriate training at the National UNCIVPOL Centre at New Delhi, the applicant was certainly on duty, but not on duty under the control of the State Govt. of T.N., from which she had been already duly relieved in the A/N of 16.01.2013. It is a moot question as to whether in the period of around 10 days that she was at National UN CIVPOL Centre at New Delhi, before her actual departure to South Sudan on 05.02.2013, whether for a few days she could be treated to have been on duty under the MHA/GoI, or from the very beginning she has to be treated as if she was on duty with the UNDPKO itself. But one thing is certain that she was on duty with the State Govt. of T.N. only till 16.01.2013 (A/N), and she was fully on duty with the UNDPKO from 05.02.2013 onwards. The period of interregnum of her course of instruction for training in India has to be treated to be on duty at least under MHA/GoI, under Rule 6 (b) (i) (supra).
87. When the control over her had been relinquished by Respondent No.2 State of T.N. in the A/N of 16.01.2013, by asking her to report at the National UN CIVPOL Centre, New Delhi, the State of T.N. had no business whatsoever to thereafter interfere in the MHA/GoI deputing her with the UN Peace Keeping Operations in South Sudan. The State of T.N. should have actually felt proud that among hundreds of officers deputed from all over the country, only one, the applicant, was found suitable from T.N. State for deputation to such Peace Keeping Operations, while the four other T.N. Cadre IPS Officer colleagues of hers, who had also attended similar UN SAT Training 2010-11, could not pass muster. Just because the permission to the applicant had been granted at the time of UN SAT 2010-11 earlier, by the then Honble Chief Minister, in an earlier political regime, and in between there had been a change in the States political regime, the T.N. Govt. cannot be allowed to approbate and reprobate.
88. One very forceful argument put forward by the learned senior counsel for Respondent No.2 was that since the disciplinary enquiry against the applicant had already been initiated, and was still going on, this Tribunal ought not to interfere at this stage, even before the disciplinary enquiry is completed. But it is settled law that Court and Tribunals can look into the circumstances leading to the institution of the very disciplinary enquiry itself, and see as to whether the Article of Charges themselves have been framed in good faith, or with malafides. Even though the employment of civil servants is at the pleasure of the sovereign authority, the President of the Union, or the Governor of the State, and the Honble Chief Minister exercises those sovereign powers on behalf of the Governor the State of T.N., the Courts can certainly interfere and review even such actions if sufficient public law element is involved. In Deputy Inspector General of Police vs. K.S. Swaminathan (1996) 11 SCC 498, it was held by the Honble Apex Court that the Tribunal can look into whether the statement of the facts in the charge sheet supplied to the delinquent Officer would disclose the alleged misconduct.
89. We have not been able to discern any actions and acts of the applicant in the instant case which may amount to misconduct. On the subject of what amounts to misconduct, the Honble High Court of Andhra Pradesh at Hyderabad in Writ Appeal No. 476/2001 decided on 17.08.2009 Osmania University rep. by its Registrar and Anr. vs. V. Nageshwar Rao held as follows:-
13. Though the word misconduct is not precisely defined, by a catena of judgments, the Indian and English Courts considered as to what constitutes misconduct. In Pearce v. Foster (1886) 17 QDB 536 the Queens Bench Division held that if a servant conduct himself in a way inconsistent with the faithful discharge of his duty in service, it is misconduct. In Laws v. London Chronicle (Indicator Newspapers) Ltd. (1959) 1 WLR 698, the Court of Appeal held that a disregard of an essential condition of the contract of service may constitute misconduct. The Strouds Judicial Dictionary described misconduct as misconduct means, misconduct arising from ill motive acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct (emphasis added). In State of Punjab v. Ram Singh (2 supra), the Supreme Court, while considering the scope and ambit of the expression misconduct in Rule 16.2(1) of Punjab Police Manual, 1934 referred to Blacks Law dictionary and P. Ramanatha Aiyars Law Lexicon, which are reproduced hereunder:
Misconduct has been defined in Blacks Law Dictionary, Sixth Edition at page 999 thus:
A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense but not negligence of carelessness.
Misconduct in office has been defined as:
Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act.
P. Ramanatha Aiyars Law Lexicon, Reprint Edition 1987 at page 821 defines misconduct thus:
The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or Statue which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskillfulness are transgressions of some established, but indefinite, rule of action, which some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected.
After considering the said expression with reference to the above reproduced meaning of the expression contained in the Law Dictionaries, the Supreme Court held:
Thus it could be seen that the word misconduct though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve mortal turpitude, it must be improper or wrong behavior; unlawful behaviour, willful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty, the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statue and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order (emphasis added).
14. The judicial opinion on the expression misconduct appearing in the case law referred to above undoubtedly brings every act of an employee, whose conduct is inconsistent with the faithful discharge of his duties, who had ill-motive or who abused his power, within the sweep of the said expression..
15. In Union of India v. J.Ahmed MANU/SC/0481/1979: AIR 1979 SC 1022, the Supreme Court, having referred to the English case law referred to above and also its earlier judgments, held that lack of efficiency or attainment of highest standards in discharge of duty attached to public office does not ipso facto constitute misconduct, and that lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high.
90. Similarly in the case of Raj Net Chauhan vs. State of Uttar Pradesh and Ors. in C.M.W.P. No.44021/1997 decided on 22.05.2003, the Honble High Court of Allahabad had observed regarding misconduct as follows:-
10.As a member of police force, the Petitioner is supposed to maintain the standards of discipline while performing his duty assigned from time to time. If such a police personnel flouting the orders of his superior does not stick to the strict discipline of the force and absents without any reasonable cause, it would definitely constitute a gravest misconduct warranting his dismissal from service. The word misconduct has not a precise definition of its own. Its reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. Such misconduct may involve improper or wrong behaviour, forbidden act, a transgression of established and definite rule of action or code of conduct. The police service is obviously a disciplined service and it requires to maintain strict standard of such discipline. Laxity in this behalf erodes established norms of the service causing serious effects in the maintenance of law and order. The Petitioner in the present case by flouting the order of his superior authority when did not join the duty of Santari on the said date and left the police station without permission or information, this would constitute gravest misconduct warranting his dismissal from service..
91. Whatever the applicant did, and whenever she did write, she appears to have acted in the performance of her current duties, and through proper channels only. For the failure of the Respondent No.2 State of T.N. to pass an appropriate order sanctioning her Tour on Duty (TOD) with the UNDPKO on the strength of the orders of the earlier Chief Minister of the State, and to try to penalize the applicant because there was a change in the Political Regime in the State, does not appear to be proper, when the successor Honble Chief Minister had not passed any specific order withdrawing the sanction accorded by the predecessor Chief Minister.
92. It cannot be called the Rule of Law and adherence to the principles of natural justice if no decision whatsoever is taken on a petition, deciding the matter one way or the other, and the file is returned after 47 days without a decision, and is consigned to records, but still more than a year later, the Respondent No.2 State of T.N. takes a stand that mere return of the file without any orders whatsoever amounted to a rejection of the proposal put up in that file.
93. We must point out that this is not the first time, or the first case, in which during the pendency of the OA before this Tribunal, the respondents have granted a portion of the relief as claimed for by the applicant, which only goes on to make a portion of the prayers as made in the OA as having been fulfilled. We must also state that the mere acceptance of the notice by a Standing counsel on the panel of Respondent No.1-Union of India, who was not ultimately assigned the case, could have in any manner prevented the MHA/GoI from passing the appellate order on 20.10.2014, giving some relief to the applicant, by ordering the revocation of her suspension. What is surprising to us is the subsequent revelations made on 07.01.2015, and during the hearings of the case on 24.03.2015, 31.03.2015 and 01.04.2015, by which we have learnt that despite the order of suspension having been revoked by the Respondent No.1- Union of India, in exercise of its appellate powers under the relevant Rules, Respondent No.2, State of T.N., had still not given effect to that appellate order, and has still not reinstated the applicant from her suspension!!! Such an action on the part of Respondent No.2 State of T.N. not only amounts to a total negation of the settled principles of law in this regard, but is also un-constitutional, as being against Article 312 of the Constitution of India, and the countrys federal structure.
94. The law in regard to merger of orders in respect of administrative authorities had been declared conclusively by the Honble Apex Court through 7 Judges Bench judgment in the case of S.S. Rathore vs. State of M.P. (1989) 4 SCC 582. The Constitution of that 7 Judges Bench was necessitated in order to overcome the difficulty arising from the Constitution 5 Judges Bench judgment in State of Uttar Pradesh vs. Mohammad Nooh AIR 1958 SC 86, which had made a distinction between the Courts and Tribunals and the administrative authorities as regards the theory of merger was concerned. To overcome the difficulty arising from Mohammad Noohs case, the Honble Apex Court had in S.S. Rathore (supra), in Paragraphs 11,12,13,14, 20 & 22 of its judgment stated as follows:-
11. In Madan Gopal Rungta v. Secretary to the Govt. of Orissa 1962 (Suppl) 3 SCR 906 : (AIR 1962 SC 1513) a Constitution bench of this Court was examining the correctness of the finding of the High Court that it had no jurisdiction to entertain a petition under Article 226 of the Constitution as the revisional order was that of Government of India located outside its territorial jurisdiction. Rungta's case (AIR 1962 SC 1513) took into consideration the judgment in Mohammad Nooh's case (AIR 1958 SC 86) and stated (at pp. 1515 - 1516 of AIR) 'We are of opinion that the principle of Mohd. Nooh's case cannot apply in the circumstances of the present case. The question there was whether the High Court could issue a writ under Art. 226 in respect of a dismissal which was effective from 1948, simply because the revision against the order of dismissal was dismissed by the State Government in April, 1950 after the Constitution came into force. It was in these circumstances that this Court held that the dismissal having taken place in 1948 could not be the subject-matter of an application under Art. 226 of the Constitution for that would be giving retrospective effect to that Article. The argument that the order of dismissal merged in the order passed in appeal therefrom and in the final order of revision was repelled by this Court on two grounds. It was held, firstly, that the principle of merger applicable to decrees of courts would not apply to orders of departmental tribunals, and, secondly, that the original order of dismissal would be operative on its own strength and did not gain greater efficacy by the subsequent order of dismissal of the appeal or revision, and therefore the order of dismissal having been passed before the Constitution would not be open to attack under Art.226 of the Constitution. We are of opinion that the facts in Mohd. Nooh's case were of a special kind and the reasoning in that case would not apply to the facts of the present case."
The view expressed by Wanchoo, J. in Rungta's case meets with our approval. In Rungta's case this Court ultimately held that the order of the State Government had merged into the order of the Central Government and the High Court was, therefore, right in its view that it had no jurisdiction.
12. The next Constitution Bench decision .of this Court is that of Collector of Customs, Calcutta v. East India Commercial Co. Ltd. (1963) 2 SCR 563: (AIR 1963 SC 1124) where this Court observed (at p. 1126):
"The question, therefore, turns on whether the order of the original authority becomes merged in the order of the appellate authority even where the appellate authority merely dismisses the appeal without any modification of the order of the original authority. It is obvious that when an appeal is made, the appellate authority can do one of three things, namely, (i) it may reverse the order under appeal, (ii) it may modify that order, and (iii) it may merely dismiss the appeal and thus confirm the order without any modification. It is not disputed that in the first two cases where the order of the original authority is either reversed or modified it is the order of the appellate authority which is the operative order and if the High Court has no jurisdiction to issue a writ to the appellate authority it cannot issue a writ to the original authority. The question therefore is whether there is any difference between these two cases and the third case where the appellate authority dismisses the appeal and thus confirms the order of the original authority. It seems to us that on principle it is difficult to draw a distinction between the first two kinds of orders passed by the appellate authority and the third kind of order passed by it. In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it. In law, the appellate order of confirmation is quite as efficacious as an operative order as an appellate order of reversal or modification."
13. A 3-Judge Bench decision in the case of Somnath Sahu v. The State of Orissa (1969) 3 SCC 384 is an authority in support of the position as accepted by the two Constitution Bench judgments referred to above. There, it was held in the case of a service dispute that the original order merged in the appellate order of the State Government and it is the appellate decision which subsisted and became operative in law and was capable of enforcement. That judgment relied upon another decision of this Court in support of its view being C. I. T. v. Amrit Lal Bhagilal & Co. 1959 SCR 713: (AIR 1958 SC 868).
14. The distinction adopted in Mohammad Nooh's case (AIR 1958 SC 86) between a court and a tribunal being the appellate or the revisional authority is one without any legal justification. Powers of adjudication ordinarily vested in courts are being exercised under the law by tribunals and other constituted authorities. In fact, in respect of many disputes the jurisdiction of the court is now barred and there is a vesting of jurisdiction in tribunals and authorities. That being the position, we see no justification for the distinction between courts and tribunals in regard to the principle of merger. On the authority of the precedents indicated, it must be held that the order of dismissal made by the Collector did merge into the order of the Divisional Commissioner when the appellant's appeal was dismissed on 31-8-1966.
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20. We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months' ,period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle.
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22. It is proper that the position in such cases should be uniform. Therefore, in every such case until the appeal or representation provided by a law is disposed of, accrual of cause of action for cause of action shall first arise only when the higher authority makes its order on appeal or representation and where such order is not made on the expiry of six months from the date when the appeal was filed or representation was made. Submission of just a memorial or representation to the Head of the establishment shall not be taken into consideration in the matter of fixing limitation.
(Emphasis supplied).
95. In the instant case, the applicant had filed her appeal petition against the order of her suspension before the Appellate Authority, MHA/GoI much earlier, and had also sent many reminders for an early decision upon the same, but the Respondent No.1 MHA/GoI had not passed any order on her appeal petition till the date when she filed the OA. In that sense, as on the date she filed the OA, the OA was pre-mature, as her appeal against the order of suspension had not yet been decided. But when once the appeal had been decided by Respondent No.1 Union of India on 20.10.2014, we see no bar to our jurisdiction at Delhi, as the order of Tamil Nadu Government has since merged into the order of the Appellate Authority, Respondent No.1-Union of India.
96. We see no conflict on the point of jurisdiction for the Principal Bench of this Tribunal to have entertained this OA at Delhi for other reasons also. All the events of end-January 2013 and first week of February 2013 had taken place at Delhi, for which the applicant is now being persecuted and proceeded against in a Departmental Enquiry by Respondent No.2. She was under the control of National UN CIVPOL Centre at New Delhi during that period. Even as on the date of filing of the OA also, it was inaction on the part of Respondent No.1-Union of India, which was the cause of action, and after 20.10.2014, after the passing of the Appellate Authoritys order, since the order of suspension passed by Respondent No.2 State of T.N. got merged in the Appellate order of Respondent No.1, Union of India, it is clear that this Principal Bench at Delhi has full jurisdiction to hear and decide the case, since more than six months time had elapsed since the filing of her appeal by the applicant before the Appellate Authority before this O.A. was filed. The following case law also supports the above conclusion of ours:-
1. State of Rajasthan vs. M/s Swaika Properties: (1985) 3 SCC 217: AIR 1985 SC 1289.
2. Perumon Bhagvathy Devaswom, Perinadu Village vs. Bhargavi Amma: (2008) 8 SCC 321.
97. It is further seen by us that no communication whatsoever of the Respondent No.1-Union of India has been issued without a copy of the same having been marked to the DGP of Respondent No.2 State of T.N., and to the Principal Secretary (Home) of the State of Tamil Nadu, Respondent No.2. Therefore, we cannot, at all, accept in any manner the contention of the learned Senior Counsel for the State of Tamil Nadu, as if the applicant had at any stage dealt directly with the Respondent No.1-Union of India, or the United Nations, and had gone off on a foreign jaunt without any prior intimation and/or permission whatsoever.
98. The Respondent No.2 State of T.N. certainly has the power to suspend an I.P.S. officer, but the suspended officer can then appeal to the MHA, GoI, and the Rules themselves provide that the final orders of the MHA GoI shall prevail. Under the doctrine of merger as discussed above, in the case of S.S. Rathore vs. State of M.P. (supra), the order of suspension passed by the Respondent No.2 State of T.N. does not subsist when once the MHA as the Appellate Authority has accepted the appeal of the applicant against her suspension, and has set aside the order of suspension passed by the State Government. The suspension order then gets merged in the Appellate Authoritys order, and no longer subsists. Malafide on the part of State of T.N. is apparent from the fact that till the date the case was reserved for orders, and perhaps even till the date of pronouncement of this order, the Respondent No.2 State of T.N. has not given effect to the order the Appellate Authority, the MHA/GoI, when its own order of suspension dated 12.03.2014 no longer exists, under the theory of merger of the administrative orders, as laid down by the 7 Judges Bench of the Honble Apex Court.
99. Courts have often held that when the decision on the proposals for sanction is not taken, sanction will be deemed to have been granted to the proposal, but even that proposition has totally been negated by the State of Tamil Nadu in its pleadings and arguments before us.
100. That brings us to the legal consequences of holding back of the communication of lack of any decision whatsoever by the Honble Chief Minister upon the Circulation Note even to the DGP of Tamil Nadu. The DGP not being aware that the Circulation Note proposal put up to the Honble Chief Minister had been neither (a) approved nor (b) rejected, on the prodding of the MHA/GoI, in absolute good faith, the DGP had ordered on 12.01.2013 for the applicant to be relieved, with permission to report to the MHA/GoI, and he had sought from the State Government ex-post facto approval for his bonafide action taken in good faith through Annexure A-11. Since such an action was taken by the DGP in good faith, in anticipation of its approval by the State Government, the Respondent No.2 State of T.N. is now bound by estoppel, and all subsequent executive actions taken by the Tamil Nadu State Government are required to be subjected to fetters on account of the promissory estoppel created in favour of the applicant by virtue of the relieving order passed by her superior, the DGP, on 12.01.2013.
101. Lord Denning had in a case held that a public authority may be bound by representations made by their officer within this ostensible authority, if some other person acts on them. Here, the Respondent No.2 State of T.N. is bound by the actions taken, and the orders passed by their seniormost IPS officer, the DGP of the State of Tamil Nadu, within his ostensible authority, specially when the applicant has thereafter acted in pursuance of that ostensible authority. In U.K., the Court of Appeal had held that there were only two kinds of exceptions to the principle that a public authority could not be estopped from exercising its duties and powers. One exception was where it had statutory power to delegate functions to its officers, and there were special circumstances to justify the applicant in thinking that the officer, thus, had the power to bind the authority by an irrevocable decision. Here, in the instant case, the DGP ostensibly is the senior most officer of the I.P.S. cadre in the State, of which the applicant was one among the junior most officers, having been inducted from the State Police Service to the IPS in the year 2012 only. The applicant could have had no reason to doubt that the DGP did not have the delegated powers and functions of the State Government of Tamil Nadu to pass the relieving orders of the type passed by the DGP, through Annexure A-10 & A-11, dated 12.01.2013 and 13.01.2013, and more so because the consideration of the case regarding her UN deputation had been going on for three years, and the applicant could not at all have been privy to the correspondence between the DGP and the Respondent No.2 State of T.N. Therefore, special circumstances did exist to justify the applicant before us to think that the DGP had the ostensible power to bind the Respondent No.2 State of T.N. by an irrevocable decision of his, and no fault can be found with the applicant if she had acted upon the orders of the DGP, in the firm belief & thought that the DGP had the power to bind the authority of the Respondent No.2 State of T.N. by an irrevocable decision, after which the control over her duties and functions passed first to Respondent No.1-Union of India, and then, later, to the UN CIVPOL authorities under the UNDPKO.
102. The fact remains that without any reply communication whatsoever being sent by Respondent No.2 State of T.N. to either the DGP, or to the Respondent No.1-Union of India or to the most affected party, the applicant before us, as to whether she had been permitted, or not, to re-appear for the United Nations SAT Test 2012-13, and since no decision or its reasons at all were recorded, and the proposal was neither (a) approved nor (b) rejected, as per the Law which flows from the celebrated judgment of the Honble Apex Court in the case of Commissioner of Police Bombay vs. Gordhandas Bhanji: AIR 1952 SC 16, which legal principle was reiterated about half a century later by the Honble Apex Court in the case of Mohinder Singh Gill & Anr. vs. Chief Election Commissioner AIR 1978 SC 851, it does not lie for the Respondent No.2 State of T.N. to now state things otherwise, and to try to state that it had in fact meant to reject the proposal even though it had not actually rejected it. Therefore, such a stand cannot now be allowed to be taken by the Respondent No.2-State of T.N., either in the pleadings and arguments, or in the affidavits, or by way of the Show Cause Notice issued to the applicant for disciplinary enquiry, or by way of the charges framed against her for initiating the disciplinary enquiry pending and continuing against her, and the suspension order issued to her, which has since been revoked by the Appellate Authority,
103. It is clear from the law as laid down by the Honble Apex Court in Commissioner of Police Bombay vs. Gordhandas Bhanji (supra) and Mohinder Singh Gill & Anr. vs. Chief Election Commissioner (supra), that the public authorities must state whatever they have to say at the time of passing their order, and cannot later on supplant, supplement, or add to the language, or reasoning of the orders passed by them. In this particular case, the situation was even worse, because the file was kept pending for 46 days, but still no orders whatsoever were recorded, and when no orders either way were passed, therefore, the Respondent No.2 State of Tamil Nadu is now estopped from claiming that the case of the applicant had actually been rejected. Therefore, now it cannot be allowed to be claimed by Respondent No.2 State of T.N. that such return of file without passing any orders actually amounted to a rejection of the proposal contained in that Circulation Note.
104. As on today, we cannot even say that this Tribunal can exercise its powers of quasi-judicial or judicial review of the manner in which the decision was made by the Executive, because no decision was made at all !!! The Constitution, the Parliament, and the Legislature of the State of Tamil Nadu could not have intended to authorize such unfettered discretion, which inaction, therefore, renders all subsequent actions of the Respondent No.2 State of T.N. treating it to be a rejection of the proposal, ultra vires, void, and illegal.
105. The applicant cannot at all be prosecuted by the Respondent No.2 State of Tamil Nadu today just because no action was taken by it, whether reasonably or unreasonably. It was not a policy decision, about which this Tribunal cannot express its views upon. The approval or rejection of the Circulation Note was a power conferred by the Rules of Transaction of Business of Tamil Nadu Government, and it is very much the business of this Tribunal to see that such a power is neither exceeded, nor abused, nor that the discretion to actually use that power is abdicated, by not passing any order whatsoever.
106. In the instant case before us, when the applicant was duly relieved on the instructions issued in good faith and in a bona fide manner by the DGP to her immediate superior officer at Trichy, who, in-turn, passed another Office Memorandum relieving her, and directing her to report to the MHA/GoI, New Delhi, the applicant was entitled to assume that the DGP had the authority to act in the manner as he acted upon that day. Therefore, now, even if the Respondent No.2 State of T.N. seeks to claim that that particular departmental decision of the DGP, to order the applicant to be relieved, while seeking ex-post facto approval of his action from the State Government, was irregular, it has to be held that the decision of the DGP taken in good faith, and in a bona fide manner, duly seeking it to be ratified by the State Government, was actually binding on the State of Tamil Nadu. After the DGP had, in good faith, and bona fide, in full confidence of his capacity for his acting in respect of the IPS Cadre under him on behalf of the State of Tamil Nadu, ordered for the applicant to be relieved, and had sought ratification of the bona fide action taken by him by the Respondent No.2 State of T.N., estoppel binds and fetters all future executive actions taken by either the DGP, or by the Respondent No.2 State of T.N.
107. All the charges levelled against the applicant relate to the period when she had stood relieved from the State of T.N. on 16.01.2013 (A/N), and had reported at the National UN CIVPOL Centre at New Delhi on 21.01.2013, had completed her pre-departure formalities, and was about to proceed on the UN Mission on 05.02.2013, and as has been discussed above, in that period, under Rule 6, she could either be treated to be under the control of the UN itself already, or at least under the control of Respondent No.1, Union of India, represented by MHA, GoI. The MHA/GoI did not agree to the request of the DGP, and of the State Govt. of T.N., in regard to relieving her to go back to the State at this late stage, and nor was the request of the applicant herself, praying for her being relieved to enable her to go back was accepted. Then, it is a moot question of law as to whether any charges can at all be framed by the Respondent No.2 State of T.N. against the applicant for not obeying its orders, when, under the above Rule 6, the applicant was no longer on duty with the State Govt. of T.N., but was on duty with the UN CIVPOL/MHA GoI. To our mind, because of this factual position, it is clear that the charges as framed against the applicant are themselves not at all sustainable in the light of this, as the Respondent No.2, State of T.N., had no locus standi to frame any charge against the applicant in respect of a period when she was not at all on duty under the service of the State of T.N. CONCLUSIONS
108. In view of the detailed analysis of the files submitted for our perusal, as discussed above in great detail, and after considering the pleadings, submissions and arguments before us, and the law on the subject as discussed above, it is clear that there has been a tragic comedy of errors on the part of Respondent No.2 State of T.N., in having persecuted and proceeded against the applicant on the basis of an incorrect understanding and belief that she had proceeded on U.N. deputation on the basis of UNSAT 2012-2013 test, for attending which test, permission of the State Govt. had not been granted to her. The State Govt., as well as the DGP, have failed to appreciate that in fact the applicant had been selected for her UN assignment against her merit list position in UNSAT 2010-2011, the validity of which result had been extended up to 30.12.2012, before which date she was telephonically interviewed and orders for her selection thereafter emanated from New York.
109. For attending that UN SAT 2010-2011 test, her candidature had been duly forwarded by the Respondent No.2 State of T.N., after obtaining signatures of the then Honble Chief Minister, T.N., on the Circulation Note put up to him in Tamil language, and as such there was no irregularity whatsoever in her having been relieved by the DGP for proceeding on such UN deputation, and for her having subsequently proceeded on such deputation, though, at the last moment, the formal orders of the State Govt., in the standard format as produced before us by the learned Senior counsel for Respondent No.2, had not been passed, because of the misunderstanding in the State Govt. that her selection was on the basis of the later test (UN SAT 2012-2013) rather than on the basis of the earlier test (UN SAT 2010-2011). We find no illegality whatsoever having been committed either by the DGP in relieving her, or by the applicant, and no misconduct whatsoever on the part of the applicant.
110. The Respondent No.1, Govt. of India, was correct in stating that once all the formalities for the applicants proceeding for her UN deputation had been completed, there would have been an International level embarrassment for the Govt. of India to ask UNDPKO at the very last stage for allowing withdrawal of the name of the applicant from the persons nominated by the MHA/GoI, when MHA/GoI is otherwise pressing the UNDPKO for the intake to be increased. Respondent No.1 avoided a loss of face at the International level, and explained the position in detail to Respondent No.2. But due to a confusion regarding the particular UN SAT Test on the basis of which the applicant had been finally selected, the present cycle of events has followed.
111. In the result, we direct the Respondent No.2 State of T.N. to immediately honour the order of the Appellate Authority, Respondent No.1, about revocation of the order of suspension of the applicant, and take the applicant back to duty, and assign her a proper posting.
112. We further allow the OA, and set aside the entire disciplinary proceedings initiated against the applicant by the Respondent No.2 State of T.N., since the very premise for instituting the disciplinary enquiry was erroneous, and the State Govt. was not competent to institute the disciplinary proceedings in respect of a period when the applicant was serving on duty with the Respondent No.1 MHA/GoI and/or the United Nations. The applicant had proceeded on a foreign assignment on the basis of a test, for appearing at which the then Honble Chief Minister had approved the Circulation Note put up to him in Tamil Language. Therefore, the Respondent No.2 State of Tamil Nadu cannot now disown that permission, and go back on its word. In the result, the OA is allowed in the above terms, but there shall be no order as to costs.
(Sudhir Kumar) (Syed Rafat Alam) Member (A) Chairman cc.