Central Administrative Tribunal - Delhi
Sh. Mahesh Kumar vs Union Of India Through on 31 August, 2015
Central Administrative Tribunal Principal Bench: New Delhi OA No. 3297/2014 Reserved on 26.05.2015 Pronounced on: 31.08.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B. K. Sinha, Member (A) Sh. Mahesh Kumar S/o Sh. D.C. Chalia R/o D-104, Plot-38, Sector-6, Unique Apartments, Dwarka, New Delhi 110 075. Applicant (By Advocate: Sh. Ajesh Luthra) Versus 1. Union of India through Secretary, Ministry of External Affairs, South Block, New Delhi. 2. The Head of Chancery High Court of India, Ottawa 10, Springfield Road, Ottawa, Ontario, Kin 1C9 Canada. 3. High Commissioner, High Commission of India, Ottawa, 10, Springfield Road, Ottawa, Ontario, Kim 1C9 Canada. Respondents (By Advocate: Sh. Subhash Gosain) O R D E R By Honble Dr. B.K. Sinha, Member (A):
The instant OA is directed against the impugned order dated 13.08.2014 repatriating the applicant from High Commission of India [hereinafter referred to as HCI], Ottawa (Canada) to the Headquarters at New Delhi with immediate effect and also making him to board flight AC 838 at 16:55 hrs from Ottawa on the same date.
2. The applicant has prayed for the following relief(s):-
(a) Quash and set aside the impugned order placed at Annexure A/1 above;
(b) Direct the respondents to immediately restore the posting of the applicant at the High Commission of India, Ottawa;
(c) Direct the respondents to conduct an enquiry on the complaint submitted by the applicant;
(d) Accord all consequential benefits; and
(e) Pass any other order/direction which this Honble Tribunal may deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case.
3. The case of the applicant, in nutshell, is that the applicant is a Section Officer in the Ministry of External Affairs, who was transferred to HCI, Ottawa vide order dated 14.05.2011 for a period of three years. He joined there on 28.08.2012 and was allocated to Attache (Account) seat. It is the case of the applicant that one of his subordinates Ms. Jancy R. Puthenkudy was inimically disposed towards him on account of his SC status. She conspired with one K. Vasanty and her husband Vijay Kumar to get the applicant transferred to the Attache (Administration) Seat. The applicant filed a complaint in writing to the HOC for taking appropriate action against the said Jancy R. Puthenkudy and her associates, namely, K. Vasanty and Vijay Kumar. However, the applicant was served with the impugned order dated 13.08.2014 repatriating him to India on the same date and was directed to board the flight AC 838 at 16:55 hrs.
4. The preliminary ground that has been adopted by the applicant in the OA is that the impugned order of transfer has been issued by the incompetent authority. The applicant had been posted under orders of the President of India and it was the Ministry which alone could have repatriated him. The term Ministry under Article 74 of the Constitution would imply the Minister and, therefore, the Secretary has no power to repatriate the applicant. It is also the case of the applicant that ex post facto approval was taken in order to cover up the lapse. The applicant has also relied upon the decisions of this Tribunal in case of G.P. Upadhyaya, IAS V/s. Union of India & Ors. [OA No.447/1998 decided by the Lucknow Bench on 02.09.1999] and Surendra Singh V/s. Govt. of NCT of Delhi & Ors. [OA No. 2302/2009 decided by the Principal Bench on 22.01.2010] to contend that such transfer orders issued by incompetent authority and later sanctified by obtaining ex post facto approval are bad in law. In the second place, the applicant submits that the action of the respondents was motivated by mala fide as the deputation was for three years but he was repatriated before the completion of tenure on account of mala fide.
5. The learned counsel for the respondents alleged that there were serious charges of sexual misbehavior and misconduct against the applicant. On 13.08.2014, HCI Ottawa informed the respondent no.1 that a written complaint of sexual harassment has been made by one Jancy R. Puthenkudy, a locally recruited staff in the Accounts Section of the Commission by way of a written complaint. The said Jancy R. Puthenkudy had also sent a copy of the complaint to the Local Police/RCMP as she happened to be a Canadian citizen. It was on the complaint of said Jancy R. Puthenkudy that the applicant was shifted from Accounts Section and re-deployed as Attache (Admn.) while the investigation had been initiated vide order dated 12.08.2014. On 13.08.2014, the applicant submitted a written complaint against Jancy R. Puthenkudy and some other officials of HCI alleging caste based discrimination against him. It was on this account, keeping the best diplomatic interest into consideration, the applicant was repatriated to India under the provisions of rules called IFS (PLCA) Rules, 1961 and under Rule 25 of CCS (Conduct) Rules, 1964 pertaining to Guidelines and norms to be observed to prevent sexual harassment of working women. The learned counsel for the respondents submitted further that this step had to be taken in order to protect the reputation of the country abroad and also to protect the applicant as he could have faced criminal prosecution against the extant Canadian laws.
6. The respondents further state in their counter affidavit (page 26 of the paper book) that the complaint of sexual harassment filed by Jancy R. Puthenkudy had been forwarded to the Sexual Harassment Committee for conducting enquiry in the matter. The respondents denying the allegations of mala fide submitted that the case of the applicant is to be distinguished from the two cited cases on the ground that obtaining ex post facto approval is not an illegal practice and such action had to be taken in order to protect the good name and fame of the country abroad.
7. The applicant has filed a rejoinder denying the points raised by the respondents in their counter affidavit.
8. The respondents have also filed an additional affidavit placing on record certain documents relied by them, which are detailed as under:-
(a) A copy of complaint letter dated 13.08.2014 (Annexure RA/1) made by Jancy Ranjan regarding sexual harassment;
(b) A copy of ex-post facto sanction letter dated 22.08.2014 (Annexure RA/2);
(c) A copy of Office order dated 10.12.2014 regarding delegation of powers (Annexure RA/3);
(d) A copy of relevant extract of Volume-III of IFS Rules & Regulations regarding premature recall (Annexure RA/4); and
(e) A copy of DoPT OM dated 13.02.1998 containing guidelines and norms to be observed to prevent sexual harassment of working women at the work place (Annexure RA/5).
9. We have carefully gone through the pleadings of the parties as also the documents submitted by them and have patiently heard the arguments advanced by their respective counsels.
10. The only issue to be decided by us is as to whether the impugned order dated 13.08.2014 by which the applicant has been repatriated has been issued by the competent authority and whether the order obtaining ex post facto approval is as per the rules and justified?
11. We start our examination by defining the term ex post facto approval. As defined in the Law Lexicon Dictionary, the term ex post facto by simple dictionary meaning includes matter happening afterwards; from a later act or event; by subsequent act; by virtue of a thing done after some particular event; done after another thing and operating retrospectively. For the sake of better clarity, the definition of Ex post facto is reproduced hereunder:-
Ex post facto . (Latn.) By matter happening afterwards; from a later act or event.
By subsequent act; by virtue of a thing done after some particular event; done after another thing and operating retrospectively.
From something done afterwards.
Is a term used in the law, signifying something done after, or as arising from, or to affect, another thing that was committed before. An act done, or estate granted, may be made good by matter ex post facto, that was not so at the first, by election etc. (5 Rep. 22 : 8 Rep 146: Tomlin). An ex post facto law is one which operates upon a subject not liable to it at the time the law was made. Such is an act imposing duties of customs on goods imported before the passing of the act. (Tomlin) Blackstone says laws are made ex post facto, when, after an action is committed, the legislature then for the first time declares it to have been a crime, and inflicts a punishment upon the person who committed it. Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law; he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust.
There is also a distinction between ex post facto law and ex post facto legislation, which read thus:-
Ex post facto law. A law that makes something a crime that was not illegal at the time the act was done or that increases the penalty after a crime was committed.
An act or statute changing the law as to previous events or contracts.
An ex post facto law may be distinguished from a retrospective law. Every ex post facto law must necessarily be retrospective, but every retrospective, law is not an ex post facto law, laws are not to be considered ex post facto when they modify the rigorous of the criminal law, but only when they create or aggravate the crime or increase the punishment or change the rules of evidence for the purpose of conviction (see Phillips v. Eyre, (1870) LR 6 QB at p.25, which refers to the case of Calder v. Bull, (1798) 3 Dallas (U.S.) at p. 391, see also Blackstone, Commentaries Hardcastle, Statute Law.
Ex. Post facto legislation . Ex post facto legislation. Ex post facto legislation means a law which acts or operates as from a date anterior to its promulgation. Such a legislation may either take among the rights created by previous transaction or validate what was in its inception invalid. Govindarajan V. State of Mysore, AIR 1963 Mys. 265, 274).
12. In Halsbury's Laws of England [(4th ed) para 31] in simpler words, an act which is wrongful only because of lack of authority may be justified by ratification. On the contrary it would appear however that an invalid act of the delegate encroaching on individual rights cannot be validated with retrospective effect by ratification. The case of Co-operative Retail Services Ltd. v Taff-Ely Borough Council [1979] JPL 466 supports the above. The Council could not ratify the purported grant of planning permission by a district clerk since an ultra-vires act could not be ratified; quaere whether in any case council had power to grant planning permission.
13. However, the argument in this case is that the power of recall of an employee did not reside in the Secretary of the Department but it can only be exercised by the Ministry that being the Foreign Minister. Then there is also a dictum Delegatus non potest delegare. In other words delegation cannot be made by a delegate. This maxim, however, is not applicable under all conditions. For instance, it does not cover the discretion conferred on the Central Government by Section 237 (b) to order an investigation and delegated by it to the Company Law Board is administrative and could be validly exercised by the Board [Barium Chemicals Ltd. V/s. Company Law Board, AIR 1967 SC 295]. It has been further held that this maxim is not applicable in the field of Indian Constitutional Law [Rajasekharan Nair v. City Corporation of Trivandrum, AAIR 1966 Ker. 184, 186(FB)].
14. Simple argument of the applicant is that this power does not stand delegated to the Secretary and can only be exercised by the President implying the Ministry. Ministry here would imply the Minister and not the Secretary. In para 4 of the reply to the preliminary objections raised by the respondents in their counter affidavit, the applicant in the rejoinder has submitted as under:-
That the contents of para 4 of the preliminary objections are incorrect and false, hence denied. The applicant was posted to Ottawa by the President of India and no authority lower and/or incompetent, can pass orders of transfer/ repatriation/recall of the applicant. Moreover, by the impugned order, the applicant has been recalled in a most illegal, unfair, arbitrary and unjustified manner. The prerogative power of the respondents have to be exercised in a judicious and fair manner by the competent authority, however, the respondents have abused and misused the powers that too, without competence. Rule 2(xi) of General Financial Rules provide that the Department of Central Government means a Ministry or Department of the Central Government as notified from time to time, and includes the Planning Commission, Department of Parliamentary Affairs, the President Secretariat, the Vice President Secretariat, the Cabinet Secretariat and the Prime Ministers Secretariat. The Head of the Department under Rule 2(xvi) of the Rules ibid provides as under:-
(xvi) Head of a Department in relation to an office or offices under its administrative control means (a) an authority specified in Schedule I of the Delegation of Financial Powers Rules, 1978, and (b) any other authority declared as such under any general or special orders of the competent authority. Article 74 of the Constitution provides as under:-
74. Council of Ministers to aid and advise President,.- (1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercises of his functions, act in accordance with such advice.
Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advises tendered after such reconsideration.
(2) The question if any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court. Article 77 of the Constitution of India relates to conduct of business of the Government of India which provides as under:-
77. Conduct of business of the Government of India.(1) All executive action of the Government of India shall be expressed to be taken in the name of the President.
(2) Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President.
(3) The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.
15. In the case of State of Uttar Pradesh versus Pradhan Sangh Kshetra Samiti [AIR 1995 SC 1512], the Honble Supreme Court held that it is not necessary for the President to be personally satisfied in exercising the executive power.
16. Whenever the Constitution requires the satisfaction of the President for exercising any administrative power or functions, it is not his personal satisfaction, but in the constitutional sense, the satisfaction of his council of ministers on whose aid and advice Presidents opinion, satisfaction or decision is constitutionally secured when his ministers arrive at such opinion, satisfaction or decision. It has also to be seen that whether the validity of executive action depends upon prior legislation [H.C. Mehta versus Union of India (2004) 12 SCC 118] and where, the Constitution does not require legislation, and there is no contrary law in force on the subject matter, it is open to the Executives to issue administrative orders or instructions and even to confer rights and duties [Raghunandan versus State of Orissa (1975) 1 SCC 106].
17. It has been further held in Union of India versus Naveen Jindal [AIR 2004 (SC) 1559] that executive instructions are not law under Article 13 though such instructions might have the force of law for some other purposes, as for example those instructions which are issued as a supplement to legislative power under Article 77(1) of the Constitution.
18. It has been further held in Chairman of L.I.C. of India versus Kalangi Samuel Prabakar [AIR 1997 (AP) 304] that the executive circulars, directions, instructions and regulations are issued under appropriate laws: and below statutory rules. They are not policy decisions, but means of implementation of predetermined policies. In H.C. Mehtas case (Supra) the Honble Supreme Court further made it clear that a statutory notification cannot be notified by issue of a circular.
19. The aforesaid views have been further fortified by the Honble Supreme Court in a series of cases Nagendra versus Commissioner [AIR 1958 (SC) 398(413)];Sant Ram versus State of Rajasthan [AIR 1967 (SC) 1910] and Union of India versus Joseph [AIR 1973 (SC) 303], to mention a few.
20. In SR Bommai vs Union of India 1994(3) SCC 1 the Honble Supreme Court holds that Articles 74 and 77 are complementary to each other, though they operate in different fields. Article 74(1) deals with acts of the President done in exercise of his functions whereas Article 77 speaks of the executive action of the Government of India which is taken in the name of the Government of India. In so far as the executive action of the Government of India is concerned it has to be taken by the Minister/officer to whom the business is allocated by the rule of business made under clause (3) of Article 77 for more convenient transaction of the Government of India. All orders issued and the instrument executed relatable to the executive action of the Government of India have to be authenticated in the manner and by the officer empowered in that behalf. The President does not really come to the picture in so far as Article 77 is concerned. All business of the Government of India is transacted by the Minister or other officer empowered in that behalf, of course, in the name of the President. Orders are issued, instruments are executed and other acts done by various Ministries and officers, none of which reach the President or be placed before him for consideration. There is no occasion for such cases being for any aid or advice being considered to the President by the Council of Ministers. Though expressed in the name of the President they are the acts of the Government of India. In this regard we may extract the relevant part of the judgment in Shamsher Singh vs Union of India [AIR 1974 SC 2192], which reads as under:-
31. Further the rules of business and allocation of business among the Ministers are relatable to the provisions contained in Article 53 in the case of the President and Article 154 in the case of the Governor, that the executive power shall be exercised by the President or the Governor directly or through the officers subordinate. The provisions contained in Article 74 in the case of the President and Article 163 in the case of the Governor that there shall be a Council of Ministers to aid and advise the President or the Governor, as the case may be, are sources of the rules of business. These provisions are for the discharge of the executive powers and functions of the Government in the name of the President or the Governor. Where functions entrusted to a Minister are performed by an official employed in the Minister's Department there is in law no delegation because constitutionally the act or decision of the official is that of the Minister. The official is merely the machinery for the discharge of the functions entrusted to a Minister (See Halsbury's Laws of England 4th Edn. Vol. I, paragraph 748 at p. 170 and Carltona Ltd. v. Works Commrs., (1943) 2 All ER 560 (CA)).
39. This Court in Bejoy Lakshmi Cotton Mills Ltd. v. State of West Bengal, reported in (1967) 2 SCR 406 = (AIR 1967 SC 1145) considered the validity of a notification signed by the Assistant Secretary in the Land and Revenue Department of the State Government. It was contended that the executive power of the State is vested in the Governor under Article 154(1) of the Constitution, and, therefore, the satisfaction of the Governor was contemplated under Sections 4 and 6 of the Land Development and Planning Act under which the notification would be made. Under the Rules of Business made by the Governor under Art.166 (3), the Governor allocated to the Minister certain matters. The Minister-in-charge issued a Standing Order specifying the matters which were required to be referred to him.
40. The Rules of Business in the Bejoy Lakshmi Cotton Mills case (1967) 2 SCR 406 = (AIR 1967 SC 1145) (supra) indicated that the business of the Government was to be transacted in various departments specified in the Schedules. Land and Land Revenue was allocated as the business of the Department of the Minister with that portfolio. The Minister-in-charge had power to make standing order regarding disposal of cases. This Court held that the decision of any Minister or officer under Rules of Business is a decision of the President or the Governor respectively. The Governor means, the Governor aided and advised by the Ministers. Neither Article 77 (3) nor Article 166 (3) provides for any delegation of power. Although the executive power of the State is vested in the Governor actually it is carried on by Ministers under Rules of Business made under Article 166 (3). The allocation of business of the Government is the decision of the President or the Governor on the aid and advice of Ministers.
41. This Court in Jayantilal Amritlal Shodhan v. F. N. Rana, (1964) 5 SCR 294 = (AIR 1964 SC 648) considered the validity of a notification issued by the President under Article 258 (1) of the Constitution entrusting with the consent of the Government of Bombay to the Commissioners of Divisions in the State of Bombay the functions of the Central Government under the Land Acquisition Act in relation to the acquisition of land for the purposes of the Union within the Territorial jurisdiction of the Commissioners. The notification issued by the President was dated 24 July, 1959. The Commissioner of Baroda Division, State of Gujarat by notification published on 1 September, 1960, exercising functions under the notification issued by the President notified under Section 4(1) of the Land Acquisition Act that certain land belonging to the appellant was needed for a public purpose. On 1 May, 1960 under the Bombay Reorganisation Act, 1960 two States were carved out, viz., Maharashtra and Gujarat. The appellant contended that the notification issued by the President under Article 258 (1) was ineffective without the consent of the Government of the newly formed State of Gujarat. The question of allocation of business amongst the ministers arises out of the fact that the President being the constitutional head is to act on the advice of the Council of Ministers. It is physically impossible that each and every decision must be taken by the Council of Ministers personally. The Honble Supreme Court has observed candidly in Shamsher Singh vs Union of India AIR 1974 SC 2192 that the wheels of the Government will come to a grinding halt if every decision is required to be taken by the Council of Ministers. Hence, exercise of the powers conferred by clause (3) of article 77 of the Constitution Government of India (Allocation of Business) Rules, 1961 for the allocation of the business of the Government of India had to be framed, referred hereinafter as the Allocation of Business Rules, 1961. Rule 2 of the said Rules provides that business of the Government of India shall be transacted in the Ministries, Departments, Secretariats and Offices specified in the First Schedule to the rules (all of which are hereinafter referred to as "departments"). For sake of greater clarity Rule 3 of the Allocation of Business Rules, 1961 are extracted as below:
3. Distribution of Subjects -
1. The distribution of subjects among the departments shall be as specified in the Second Schedule to these Rules and shall include all attached and subordinate offices or other organisations including Public Sector Undertakings concerned with their subjects and Sub-rules (2), (3) and (4) of this Rule.
2. The compiling of the accounts of each Department shall stand allocated to that Department with effect from the date from which the President relieves, by order made under the first proviso to sub-section (1) of Section 10 of the Comptroller and Auditor General's (Duties, Powers and Conditions of Service) Act, 1971; the Comptroller and Auditor General from the responsibility for compiling the accounts of that Department.
3. Where sanction for the prosecution of any person for any offence is required to be accorded-
3.1. If he is a Government servant, by the Department which is the Cadre Controlling authority for the service of which he is a member, and in any other case, by the Department in which he was working at the time of commission of the alleged offence;
3.2. If he is a public servant other than a Government servant, appointed by the Central Government, by the Department administratively concerned with the organisation in which he was working at the time of commission of the alleged offence; and 3.3. In any other case, by the Department which administers the Act under which the alleged offence is committed; Provided that where, for offences alleged to have been committed, sanction is required under more than one Act, it shall be competent for the Department which administers any of such Acts to accord sanction under all such Acts.
Notwithstanding anything contained in sub-rule (3), the President may, by general or special order, direct that in any case or class of cases, the sanction shall be by the Department of Personnel and Training.
21. It is not possible for even the most hardworking of the Ministers to attend to every business of his Ministry personally nor is he expected to burden himself with the day-to-day administration, his primary function being to lay down policies and programmes of his Ministry while the Council of Ministers settles the major policies of the Government. This gives rise to the need for making provisions for more convenient transaction of business with each Ministry. This is done by the Rules of Business by designating particular civil servants or officials within the Ministry who shall be competent to take decisions or dispose of business of the Government subject to the control of the Minister-in-charge or directions issued by him through the standing orders [Sanjeevi vs State of Madras, 1970(1) SCC 443]. The Honble Supreme Court has further held in Shamsher Singh (supra) that any action taken by the specified officials designated by the Rules of Business is an action of the Government because the officials designated by the Rules of Business are limbs of Government, not its delegates. The rules of business and allocation of business rules among ministers of the said business all indicate that the decision of the minister or the officer U/A 77(3) is the decision of the President. Where functions entrusted to a Minister are performed by an official deployed in the ministers department, this is in law no delegation because constitutionally the act or the decision of the official is that of the Minister. The decision in Shamsher Singh (supra) is further supported by a decision of the Honble Supreme Court in Municipal Corporation of Delhi vs Birla Cotton and Spinning and Weaving Mills AIR 1968 SC 1232 wherein it is held that the official is merely machinery for discharge of the functions entrusted to the Minister. In short, by the Rules of Business made by the Government on advice of the Council of Ministers the President cannot only allocate the various subjects amongst particular Ministers but may go further and designate a particular official to discharge any particular function.
22. Our attention was drawn by the learned counsel for the respondents to the OM dated 12.10.1958 which provides for immediate premature recall of officials either by the Additional Secretary or in his absence the Foreign Secretary in case of blatant dereliction of duties or grave misconduct in the course of their posting abroad, whilst detailed formalities regarding their premature transfer to India are decided upon. For the sake of greater clarity, the Circular is reproduced as under:-
(iv) (c) Premature recall of officials from Missions and Posts abroad for dereliction of duties or misconduct and other urgent grounds of public necessity.
It has been the general practice to retain persons involved in blatant dereliction of duties or grave misconduct in their posts in the Indian Missions and Posts abroad whilst detailed formalities regarding their premature transfer to India are decided upon. Decisions on these formalities, for various reasons, particularly for reasons of economy, have taken a considerable time in the past and therefore the incumbents concerned continue in their posts abroad even after it is no longer in the interest of the Mission or Post to retain them there.
2. The question has been considered in some detail and it is felt that if the case is really bad, action should be taken within hours or at the most a delay or two. It is conceivable that highly embarrassing situation might arise if action is not taken quickly. Economy is important but is not good economy to keep an unfit person at a post.
3. It has, therefore, been decided that in cases of blatant dereliction of duties or grave misconduct, consideration of economy will have to be over-ridden and persons concerned recalled to Headquarters without delay.
4. For the expeditious disposal of such cases, therefore, it has been further decided that administrative sections concerned will, as in the case of premature recall on medical grounds place the case before the Additional Secretary or in his absence, the Foreign Secretary for his specific sanction to the premature recall of the official to Headquarters without delay.
5. Other cases of premature transfers on administrative grounds i.e. grounds of public necessity will also be dealt with similarly.
6. The Ministry of Finance have concurred in the issue of this memorandum.
23. It also stands to reason that premature recall has to be only under exceptional circumstances either of grave misconduct or some such events whereby the prestige of the country and our diplomatic relations are at stake. It needs hardly to be stated formally that the diplomatic enclave is an extension of the countrys territory on foreign land and that is why it enjoys diplomatic immunity in relation to application of laws of the host country. The members of the diplomatic corps are representatives of their respective countries abroad. It stands conceded that when such exceptions are reported, the prestige of the country diminished in foreign eyes. However, we have taken note of the fact that the complainant one Jancy R. Puthenkudy was also a locally recruited staff member working in the Accounts section. She had submitted written complaint of alleged sexual harassment against the applicant on 13.08.2014 following a verbal complaint by her the previous evening, i.e., 12.08.2014. Written complaint filed by complainant states that a copy of the complaint had been sent to the Local Police (RCMP Royal Canadian Mounted Police). Therefore, following the verbal complaint of the complainant on 12.08.2014, the applicant had been shifted from Accounts Section and redeployed as Attache (Admn.) vide Office Order dated 12.08.2014, while an investigation was being initiated. On the morning of 13.08.2014, the applicant also made a complaint against the aforesaid complainant Jancy R. Puthenkudy and some other members of the Mission that they were harassing him on account of caste. The respondents mention in their counter affidavit that no such complaint had been received from him about non-cooperation from other staff members on the grounds of his caste during his posting in HCI Ottawa Mission for two years, or there being any casteist remarks passed against him till the complainant Jancy R. Puthenkudy made a complaint of sexual harassment against the applicant. Enquiries were made from other members of the staff including two other officers belonging to SC community who denied ever being discriminated against in the Mission on the ground of their caste. It is further mentioned in the counter affidavit that the representation of the applicant alleging discrimination on grounds of his caste was clearly an afterthought only to resist his redeployment. This complaint of caste based discrimination surfaced for the first time when allegations of sexual harassment were leveled against him. The records reflect that all the official papers including leave applications of Jancy R. Puthenkudy were always routed to HOC, and vice versa, through the applicant, who was the Accountant. No disruption of work in Accounts Section had ever been reported by the applicant or by anybody else. Even no instance of one Vijay Kumar, HOC favouring Jancy R. Puthenkudy came to the fore. Smt. Vasanty, being an India based official, maintains good official relations with all her colleagues including locally recruited staff. She has not been found to be interacting on a personal level with any of the locally recruited staff. Thus, there is no question of her husband, Vijay Kumar, who was HOC in the Mission, shielding the complainant Jancy R. Puthenkudy. The respondents further submitted that since no disruption of work in the Accounts Section was found, the contention of the applicant that a vicious atmosphere was developed against him is concocted and baseless.
24. On the issue of shifting of the applicant from Accounts Section to Attache (Admn) and a conspiracy being hatched against him, the respondents have stated in their counter affidavit that the DOP&T OM NO.11013/10/97-Estt.(A) dated 13.02.1998 provides that the victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer. Following Jancy R. Puthenkudys verbal complaint of alleged sexual harassment by the applicant on 12.08.2014, the applicant was shifted from Accounts Section and was redeployed as Attache (Admn.) vide Office Order dated 12.08.2014, while investigation was being initiated. No reasons were required to be mentioned in the Office Order issued in respect of administrative decisions on transfer. The complainant also submitted a written complaint on alleged sexual harassment against the applicant on 13.08.2014 to the Head of Chancery, which was duly enquired into and a report was sent to the Chairperson, Complaints Committee to enquire into complaints of sexual harassment in the Ministry of External Affairs. Thus, the Missions action in redeploying the applicant was in accordance with the extant Government of Indias instructions.
25. On the basis of the above, the inference that we would draw here is that the complaint made against the applicant was of sexual harassment which is alleged to have been committed by him on foreign soil against a locally recruited person of the Embassy; a copy of the complaint had also been sent to the Local Police an Agency enforcing local laws; it had all the potentials being taken up for investigation; and there was every likelihood of the sensitive matter of sexual harassment being taken up by the press & media persons and highlighted all over the country which might have diminished the prestige of the country. Therefore, under these circumstances, the respondents were compelled to remove the applicant from the seat in order to defuse the crisis. The other alternative was that the Embassy had allowed the applicant to continue there and a diplomatic crisis to develop till the required formalities would have been completed.
26. In consideration of the above facts, we are of the firm view that officials of the Ministry exercise the powers of the President and not delegated powers under Articles 74 & 77 of the Constitution [Shamsher Singh (supra)] to fill up gaps where the rules are silent; in the instant case a situation of crisis had developed on account of the conduct of the applicant and there was every possibility of developing the same into a diplomatic crises, thereby diminishing the prestige of the country; the authority had no option but to remove the applicant from the seat in order to defuse and prevent crisis from developing. As such, we find no merit in the instant Application which is accordingly dismissed. There shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/