Central Administrative Tribunal - Delhi
Presently At vs Ministry Of External Affairs on 14 March, 2011
Central Administrative Tribunal Principal Bench OA No.4237/2010 New Delhi, this the 14th day of March, 2011 Honble Shri Shailendra Pandey, Member (A) Sh. Vijai Kumar (through constituted Attorney Sh. Abhishek) s/o Late Sh. Behari Lal r/o A-1-102, Mayank Apartments Plot 21, Sector 6, Dwarka New Delhi 110 075. Presently at Quinta Ashoka, Piso-2, Avenida 11 Entre 7 & 8 Transversal Altamira Caracas Venezuela. Applicant (By Advocate : Shri Sanjay Kumar for Shi Kul Bharat) Versus Ministry of External Affairs, Through its Secretary, South Block, New Delhi. (By Advocate : Ms. Jagriti Singh for Shri A.K. Bhardwaj) O R D E R
The applicant, in this OA, has challenged the order dated 17.08.2010 whereby he has been prematurely recalled to Headquarters (i.e. India - Delhi) from Caracas.
2. The controversy in this OA for our adjudication is whether the premature recall of the applicant, working as Head of Chancery in the Embassy of India, Caracas, to Delhi is legally maintainable or not.
3. When the case came up on 16.12.2010, one of the grounds taken (at para 5.1 of the OA) was that in the similar matter in OA No.3364/2010 (Ashit Burman v. Ministry of External Affairs) interim stay had been granted on 21.10.2010 by this Tribunal, and the following orders were passed by this Tribunal:
Admit.
Issue notice to the respondents. Applicant undertakes to take the notice today and will serve on the respondents today itself. Respondents are directed to file short reply by 20.12.2010, explaining the reasons as to why the applicant ha to be re-called, in a sealed cover.
Post the matter for further hearing on 21.12.2010.
Till then the transfer order will not be implemented by the respondents.
Applicant is also directed to convey this order to the respondents along with notice.
Issue dasti. Interim orders passed on 16.12.2010 had been continuing till 22.02.2011. On 23.12.2011, when the OA was taken up for hearing, the Respondents counsel submitted that OA No.3364/2010 had since been dismissed and the stay granted therein had been vacated vide this Tribunals order dated 14.02.2011, and that the issue involved being identical, the stay needs to be vacated in this case too. Accordingly, on 23.02.2011 interim stay, already granted on the basis of the aforesaid OA, was vacated in the present case also and, after hearing the both counsel, orders were reserved and applicants counsel was permitted to file written submissions/rejoinder to supplement what he had already stated in the OA. This was done in the interest of justice after noting that this is a transfer matter, in which time had already been given to him on 31.1.2011 to file rejoinder in the case but the same had not been filed, and also taking into account the strong request made on behalf of the applicant on 23.02.3011 that he be given a short time to file the rejoinder. The applicant filed his written submissions/rejoinder on 28.02.2011, which are taken on record.
4. The brief facts of the case, as set out in the OA, are that the applicant was appointed as Second Secretary in the Embassy of India, Caracas vide order dated 30.03.2009 and was deployed as Head of Chancery in the Embassy vide Office Order dated 10.08.2009. On 28.07.2010, the applicant was divested of the charge of Head of the Chancery and Second Secretary (Consular) and redeployed as Second Secretary (Information and Culture). Vide its order dated 17.08.2010, the Ministry of External Affairs, New Delhi conveyed to the Embassy, the sanction of the President to the recall of the applicant to Headquarters in terms of Para 8(2) (ii) & (iii) of IFS(PLCA) Rules. This letter was served on the applicant on 18.08.2010 which prompted him to file this OA.
5. It is the case of the applicant that he, having noticed certain irregularities in the Embassy of India, Caracas relating to financial and administrative improprieties committed by the former Ambassador, Counsellors, etc., submitted written complaints to the Ambassador and the concerned officers in the Ministry (vide his letter dated 30.03.2010 with supporting documents) and because of these complaints regarding irregularities committed by his superiors, he has been prematurely recalled from Caracas to the Head Quarters at Delhi vide order dated 17.08.2010 (Annexure-A1).
6. The applicant has sought the following reliefs:
(a) Quash and set aside the order dated 17.08.2010.
(b) Quash and set aside Rule 8(2) (ii) and (iii) of the IFS (PLCA) Rules The grounds on which the aforementioned reliefs sought are mainly the following:
a) that the orders of the respondents dated 17.08.2010 for his premature recall/transfer are violative of the principles of natural justice as he has neither been afforded a personal hearing nor given any opportunity to rebut the allegations made against him. Further, that the orders are bad in law, as no notice was issued before passing of the impugned order.
b) that the impugned order purportedly seeks to recall the applicant to Headquarters in terms of Rule 8 (2)(ii) & (iii) of IFS (PLCA) Rules but that it has not been specified in the order as to what the breach of conduct on the part of the applicant was.
(c) that the impugned order smacks of malafides and has been issued to victimize him because of his attempt to expose corruption of senior officers.
(d) that his premature recall against the normal tenure of 36 months would caste a stigma on his reputation and career, which has been without blemish till now, and that Rule 8(2) (ii) and (iii) of the IFS (PLCA) Rules gives unbridled powers to the Ministry to conclude on the conduct of an officer without giving him any opportunity to explain his conduct and is, therefore, unguided and arbitrary and violative of Article 14 of the Constitution of India and, needs to be set aside.
7. The respondents have opposed the grounds raised by the applicant in the OA. They have also stated that issue of financial irregularities raised by the applicant has nothing to do with his recall to Headquarters, and that such recall was a result of the applicant having been found unsuitable to continue in the Mission abroad. It is stated that the soon after his posting in the Mission, the applicant began finding fault with the functioning of all officers and staff (including locally recruited personnel) in the Mission and the Attache (Administration). His functioning as Head of the Chancery and Second Secretary (Consular) was also found to be indisciplined, obstructive, insubordinate and unprofessional. It is further stated that his rude and discourteous behaviour antagonized some local government authorities, service providers and friends of India and that he whimsically sacked some local staff. All this created a highly vitiated atmosphere in the Mission affecting its working and necessitated his recall, as his continuance there was likely to cause embarrassment to the Government of India. It is also submitted that premature transfer/recall cannot be considered to be punitive as Rules provides for curtailment of the period of Government servant in the exigencies of public service. It is also submitted that the recall order was issued on the recommendation of a fact finding team led by the Joint Secretary (CNV) which was deputed to the Mission from the Ministry. It is further submitted that Shri Sunil Baweja, Attache (Administration) in the Mission had also been recalled to Headquarters as his conduct was also found to be undisciplined and unsatisfactory and that there is no discrimination against the applicant. Malafides are strongly denied. The respondents contend that the posting of any employee in any country or his recall there from does not infringe his legal rights and that the Government has unfettered right to extend/curtail the period of posting of an employee in the exigencies of public service. In support of their contention, they have placed reliance on the orders of this Tribunal in H.K. Dogra Versus Union of India and Others [OA No.738/2006 decided on 16.11.2006). They also submit that the competent authority i.e. Minister of State, MEA, ordered the recall in terms of Para 8(2) (ii) & (iii) of IFS (PLCA) Rules.
8. We have heard the learned counsel for both the parties and have been through the pleadings on record, including the written submissions/rejoinder of the applicant.
9. It would be useful, at the outset, to extract below Para 8(2) of Annexure-XII of IFS (PLCA) Rules:
8 (2) If the Ministry is satisfied that the conduct of an officer posted abroad or of any member of his family or any person living with him and under his general control :-
has prejudiced or is likely to prejudice the maintenance of friendly relations between India and a foreign country; or has brought or is likely to bring India into disrepute; or has caused or is likely to cause embarrassment to the Government of India; or has occasioned or is likely to occasion a breach of the security regulations of the Government of India or a danger to security; or has occasioned or is likely to occasion the commission of an act which may constitute an offence under the Indian Penal Code; or Involves moral turpitude; or Involves a serious breach of the Conduct Rules of his Service.
the Ministry may compulsorily recall the officer to India.
If the Ministry is satisfied that an officer serving abroad or a member of his family is suffering from a serious or chronic illness or disease as a result of which:-
the officer has been or may become unable to perform his duties efficiently or fully; or the expenditure that has been or may be incurred on his or his familys medical or hospital treatment is unduly large;
the Ministry may compulsorily recall him to India and may, for that purpose, authorize his travel to India and of the entitled members of his family and Indian servants. Thus provision exists in the rules for the competent authority to order the premature recall/transfer if the Ministry is satisfied of the conditions given under Para 8(2) (ii) & (iii). The order dated 17.08.2010 has, therefore, been issued under specific powers provided to the Mission and also after taking approval of the competent authority as it was the Ministrys view that the applicants conduct was either likely to bring India into disrepute, or has caused or is likely to cause embarrassment to the Government of India.
10. It is also noticed that the applicant himself has stated in his para 5.1 of the OA that his case is similar to OA No.3364/2010 and it has now brought to my notice that the said OA No.3364/2010 had been dismissed vide its order dated 14.02.2011. It is, therefore, not considered necessary to adjudicate the matter extensively as a Division Bench of this Tribunal has already expressed its opinion that the recall/transfer of a person working in a Mission abroad (the Consulate General of India, Chicago in that case) to Headquarters is legally maintainable in terms of Para 8(2) of the IFS (PLCA) Rules. This decision of the Division Bench of this Tribunal has a binding effect, and it is not possible to disagree with the view taken by the Division Bench in the OA 3364/2010 in the present case, in which the issue to be adjudicated is basically the same. That view is, therefore, reiterated, including for the reasons mentioned hereinafter.
11. It is now well settled and established through various judicial pronouncements of the Honble Apex Court, that in the case of an officer appointed to a transferable post, transfer is an exigency and necessary incident of service and is an administrative decision and that the scope of judicial review in transfer matters is severely limited. Tribunals/Courts are required to exercise maximum caution while dealing with transfer orders (at the interim stage or at the stage of final hearing) and should not substitute their own decision for that of the executive in such matters as it is only the executive authorities who are in possession of the full facts and circumstances and overall administrative requirements in each case and also have the wherewithal to verify the various factual averments raised in transfer matters by the opposite side. Therefore, it has been laid down that transfer of officer can be interfered with only in three eventualities, namely,
(i) if the order has been issued by an authority not competent to do so or
(ii) if the order infringes any statutory rule or
(iii) if the transfer order is arbitrary and malafide.
In this connection, we may usefully refer to the Honble Supreme Court in Mohd. Masood Ahmed v. State of U.P. and Others, (2007) 8 SCC 150 held as under:
Since the petitioner was on a transferable post, the High Court has rightly dismissed his writ petition because transfer is an exigency of service and is an administrative decision. Interference by the courts with transfer orders should only be in very rare cases. As repeatedly held in several decisions of the Supreme Court, transfer is an exigency of service. It should not be interfered with ordinarily by a court of law in exercise of its discretionary jurisdiction under Article 226 unless the court finds that either the order is malafide or that the service rules prohibit such transfer, or that the authorities who issued the orders were not competent to pass the orders. As already observed, in the case in this OA, the present order does not/would not fall in (i) and (ii) above as it has been issued after due approval of the competent authority and in terms of specific rules (para 8(2)(ii) & (iii) of the IFS (PLCA) Rules, that empower the Ministry to prematurely recall/transfer the applicant.
As regards (iii) above, viz, whether the order is arbitrary and malafide, it has been submitted by the applicant that his transfer is a result of his having pointed out certain irregularities that had been committed by senior officers, and is, therefore, vindictive and smacks of malafides. The respondents have, however, denied that the transfer is vindictive and have submitted that the impugned order was issued because the applicants attitude/conduct had vitiated the working atmosphere in the Mission and that the decision to recall the applicant was taken after full consideration of all the facts of the case for which a Fact Finding Team, which was headed by JS (CNV), was sent from Headquarters. It is stated (paras 4.4 and 5.1 of the counter) that the said Team visited the Embassy in Carcas from 12-16 July, 2010 and established that most of the allegations made by the applicant were baseless and could not be sustained on the basis of the Missions records, personnel interviews with officials and interaction with members of the local Indian community. It is also stated that the Team found as follows:
the official conduct of the officer replete with negativism, skepticism, suspicion and insensitivity. His management of human resources was found to be unprofessional. His behaviour towards local employees of the Mission was rude leading most of them to resign. In one case, he removed a local employee of the Embassy without HOMs knowledge. He indulged into acts of insubordination and disrespect towards the Ambassador. His decision making as Head of Chancery was generally found to be arbitrary and whimsical. According to the respondents, the applicant was given sufficient opportunity for personal hearing during the teams visit and the recall order was issued on the recommendations of the Fact Finding Team, as it was felt that the applicants retention would adversely impact the image of the Mission of the country and that the action taken to recall him was entirely in public interest. In view of the fact that a Fact Finding Team headed by a Joint Secretary had been deputed to the Mission and their recommendations are taken into account, before recalling him, it is not possible for us to accept the applicants submission that his transfer order was prompted by malafides. As observed by the Honble Apex Court in State of Maharashtra v. Budhikota Subbarao, (1993) 3 SCC 71 malafides can neither be assumed or readily inferred and require strong evidence and unimpeachable proof.
12. In his rejoinder the applicant has referred to some cases, namely, (1) Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405;
(2) Dr. Ajay Sehgal v. Union of India and Others, (OA No.3590/2010, decided on 7.1.2011 by CAT.
(3) Union of India & Others v. Sushovan Banerjee & Another [Writ Petition No.2003 of 2010 of Bombay High Court, decided on 24.09.2010].
to contend that it is necessary for the competent authority to specify in the order the reasons for the same and that in the present case no reasons have been mentioned in the impugned order and that all the reasons stated in the counter are mere afterthoughts and that natural justice require that he should have been given opportunity to defend himself before giving effect to the proposal to prematurely recall him and that although he may not have an indefeasible right to complete his normal tenure but the same cannot be curtailed without show cause notice, etc. However, the cases referred to by him would not help his case as the orders have been issued by the competent authority under the relevant rules that specifically empower it to issue such orders and that too after the report of the Fact Finding Team headed by a Joint Secretary of the concerned Ministry, and finally it is stated to be in administrative and in public interest.
13. The applicants contention that till the report of the Fact Finding Team he has had an unblemished career and even the ACR given by the Head of Mission was `Very Good would also not take away from the power of the Ministry to recall him after the report of the Finding Team, if they felt that this was in the interest of the Mission and the Government of India, nor can it be taken to be an arbitrary and malafide decision.
14. The applicant also referred to several other cases in his rejoinder, namely, (a) State of M.P. v. S.S.Kourav, 1995 (3) SCC 270; NHPC v. Shri Bhagwan, 2001 (8) SCC 574; Arvind Dattatraya Dhande v. State of Maharashtra, 1997 (6) SCC 169 and also Tejshree Ghag v. Prakash Parshuram Patil, 2007 (6) SCC 220. It is seen that these cases have already been considered by a Division Bench of this Tribunal in OA No.3364/2010 (Ashit Barman v. Ministry of External Affairs, decided on 14.02.2011) and, therefore, it is not considered necessary to discuss these.
15. In his rejoinder, the applicant has also stated that in OA No.3364/2010, decided on 14.02.2011, this Tribunal had found that three improper taxi claims drawn by the applicant in that case constituted serious breach of conduct and that the findings of the respondents-Ministry were based on these three payment vouchers and that his case is different from that one. However, the decision in the said OA was that the premature recall/transfer of an official in terms of the provisions of Para 8(2) of the IFS (PLCA) Rules, is legally sustainable, and would apply to this case also. The contention of the applicant that Rule 8(2) (ii) and (iii) of the IFS (PLCA) Rules gives unbridled powers to the Ministry and is, therefore, unguided and arbitrary and violative of Article 14 of the Constitution of India and, needs to be set aside, is also not tenable for the reason that such a provision has been made and is necessary for the Government to deal with certain instances in which the image of the country or its interest could be adversely affected.
16. Taking the totality of facts and circumstances of the case, and the legal position in the matter of recall and transfer into account, and the decision of the Division Bench in OA No.3364/2010 (Ashit Barman v. Ministry of External Affairs, decided on 14.02.2011) in the matter, no interference in the present matter is warranted, and it is not possible to accord the releifs sought.
17. The OA is dismissed. No costs.
(Shailendra Pandey) Member (A) /nsnrsp/