Central Administrative Tribunal - Delhi
Shri Harish K.Dogra vs Union Of India on 22 July, 2014
Central Administrative Tribunal
Principal Bench
New Delhi
OA No. 2880/2009
Order reserved on 04.04.2014
Pronounced on 22.07.2014
Honble Shri Sudhir Kumar, Member (Administrative)
Honble Shri V. Ajay Kumar, Member (Judicial)
Shri Harish K.Dogra,
House No.71, Sector 15-A,
Noida-201301.
District Gautam Budh Nagar,
U.P. Applicant
(Applicant in person)
Versus
Union of India
1. Through
The Foreign Secretary
Ministry of External Affairs,
Government of India
South Block, New Delhi.
2. Shri K.K.S. Rana (Inquiry Officer),
B-33 IFS Apartments,
Mayur Vihar-I
New Delhi-110091. -Respondents.
(By Advocate: Shri M.K Bhardwaj proxy for
Ms.Priyanka Bhardwaj)
ORDER
Per Shri Sudhir Kumar, Member(A):
The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985, praying for the following reliefs:-
a) Call for the records of the Inquiry and quash and set aside the Inquiry Proceedings, the Report of the Inquiry Officer Mr. K.K.S. Rana, IFS (Retd) as well as the impugned orders dated 20.05.2009 and 25.052009.
b) In consequence of setting aside the impugned orders of 20.05.2009 and 25.05.2009, to grant the Applicant all consequential benefits that may accrue under rules.
c) Order payment of full Pay and Allowances to the Applicant from 15.04.06 to the normal date of superannuation on 31.07.2009, along with the prevailing commercial/bank rate of interest on the same from the date that these became due to the date payment of the same.
d) Order payment of full Pension and Gratuity to the Applicant after superannuation on 31.07.2009 along with the prevailing commercial/bank rate of interest on the same from 01.08.2009 to the date of payment of the same.
e) Order payment of full encashment of 10 months earned leave salary, standing to the credit of the Applicant, amounting to approximately Rs.10 lakhs, along with the prevailing commercial/bank rate of interest on the same from 01.08.2009 to the date of payment of the same.
f) Any other order or Relief which the Honble Court may deem fit and appropriate may also be passed in favour of the Applicant and against the Respondents.
g) Costs of the case in favour of the Applicant and against the Respondents.
2. Briefly stated, the facts of the case are that the applicant was a Grade-I Officer of the Indian Forest Service (IFS, in short) equivalent to Secretary to the Government of India. After the applicant had assumed the charge as High Commissioner of India (HCI, in short) in New Zealand, he received information from Non-Resident Indians (NRIs, in short)/Persons of Indian Origin (PIOs) that they had been fleeced by a well entrenched lobby of travel/immigration agents/touts in collusion with some persons working under him in the HCI, Wellington, and at HQs in India in the matter of renewal of passports, visas etc. required in emergencies at short notice, by charging to the tune of NZ$ 65 to NZ $ 90, dependent on the service sought. The applicant being the Head of the Mission, in the course of his bounden duty to provide efficient and clean Consular services in a foreign country, and in order to keep up the fair name of the Government of India, he devoted personal attention to the Missions work in order to try for streamlining the system. He conducted surprise checks on more than one occasions, along with the head of the Consular Section, which revealed unaccounted/excess money in the hands of those dealing with Consular work, lending credence to the complaints received by the applicant. As a result, while the local employees chose to proceed on retirement pleading ill health, and the India based person found to be in collusion was shifted to another assignment. Other instances of major corrupt practices, leading to defrauding of the public exchequer by these and other officials of the HCI Mission were duly reported to the Disciplinary Authority (DA, in short), which included the case of an Assistant in the Mission, who was found to be spending 4 times his monthly salary, and the no.2 in the HCI Mission, who had misused his position to sanction to himself for his personal gain Rs.6 lakhs in inadmissible expenditure.
3. With the introduction of a first come first served policy, and streamlining of the procedure for speedy consular services, these vested interests could no longer charge such speed money, and their financial interests were hit hard, especially since most of those travel/immigration agents/touts had this only as the main source of their income. Those whose financial interests had thus been hit, including the persons in the HCI Mission, who used to indulge in such corrupt practices, began a systematic and sustained campaign, in collusion with their erstwhile accomplices in the HCI Mission, and used their clout within the Respondent Ministry at New Delhi, to try to oust the applicant. Thereafter, suddenly, out of the blue, without giving him any warning, or seeking any explanation from the applicant, or any show cause notice being issued to him, vide order dated 01.03.2006, the applicant was recalled back to Delhi to the Headquarters in a stigmatic and punitive matter. The applicant has assailed such action to have been against all principles of natural justice, since the action was taken without any Show Cause Notice having been issued to the applicant, or any opportunity having been granted to him to defend himself in violation of Article 311 of the Constitution of India.
4. According to the applicant when this news of his premature recall broke in New Zealand, there was widespread consternation among the NRIs there, against this unfair decision of the Government of India, and almost all Associations of NRIs, PIOs, and other eminent persons in New Zealand wrote letters of protest to the President, the Prime Minister, the Chairperson UPA, and Ministers in the Ministry of External Affairs (MEA) etc., questioning the decision, and asking for it to be reviewed/rescinded. There were also public demonstrations in New Zealand by the NRIs and PIOs against this decision.
5. The applicant has further submitted that, as a result, the respondents also began a frame-up of the applicant, creating hurdles and situations which would prevent the applicant from returning to India respectively, and thereby they started building up a case for premeditated and predetermined disciplinary proceedings, to cover up their illegal and unjustified actions. The applicant has alleged that the evidence of the bias of the respondents became clearer later, and was reflected in the actions of the respondents in the conduct of the disciplinary proceedings.
6. It has been further submitted that the enquiry in the disciplinary proceedings was not held with reference to any of the reasons for his recall, which reasons have even till today not been intimated to the applicant, but that the disciplinary enquiry was being held only with regard to the post-recall events, in which the applicant had been framed, and charges had been cooked up and trumped up against him, after the respondents had arbitrarily cancelled his Diplomatic passport, and had then denied him any travel documents whatsoever till 18.06.2006, to enable him to even travel to India. It has been stated that after tremendous harassment, hurdles and delays, when the applicant subsequently reported for joining his duty at Delhi in the Ministry of External Affairs on 22.06.2006, despite there being no disciplinary proceedings pending against him at that point of time, in violation of all rules and regulations, and totally on the high handed and arbitrary whims and fancies of the biased respondent authorities, he was not allowed to join duty, nor paid pay and allowances from 15.04.2006 to 05.07.2006. Rather, even his pay and allowances for the part period from 22.06.2006 to 05.07.06 were released only at the end of 2008, but those for the part period from 15.04.2006 to 21.06.2006 have not been released even till today.
7. The applicant has submitted that the respondents issued an order of his suspension on 06.07.2006 without even waiting for his reply to the Show Cause Memorandum dated 20.05.2006, which was purposely sent to his wrong/incomplete address, despite his permanent address/last address in India being available in the official records, and the respondents issued a charge-sheet, initiating disciplinary proceedings, on 21.07.2006, again without even considering his reply to the Show Cause Memorandum, as was admitted by the respondents in para-11 of the counter-reply dated 10.10.2006 filed in his earlier OA No.1736/2006 (reproduced later in this order). Thereafter, the applicant was kept under continuous suspension for almost 3 years, until the impugned order was passed in May, 2009, even though he could easily have been deployed on any insignificant position at the Headquarters, from where he would not have been able to interfere with the disciplinary proceedings in any way, or with the cited evidence, which was in New Zealand.
8. The applicant had approached this Tribunal earlier, and the Honble Delhi High Court also, against the arbitrary, high-handed and mala fide actions of the Respondents by way of OA No.738/2006, 1736/2006, 2467/2006, 118/2007, which had all been dismissed by this Tribunal, one of which orders was challenged by him before the High Court of Delhi in CWP No.3063/2007. However, the Honble High Court had dismissed this CWP on 11.04.2008, holding it as being devoid of merit, and adding that they had called for the original records of the decision making process and perused them to satisfy their judicial conscience.
9. The OA No.2467/2006 filed by the applicant against the appointment of the Enquiry Officer Mr. K.K.S. Rana, on the ground of bias, and against the departmental inquiry proceedings being conducted were dismissed on 05.03.2007, as the other OAs, with this Tribunal finding no merit in them. The applicant had challenged the order passed by this Tribunal in OA No.2467/2006 also before the Honble Delhi High Court, and the Honble High Court had directed on 25.03.2008 to file an amended Writ Petition, in view of the fact that one of the parties mentioned in the OA had not been made a party in the CWP. Thereafter, the Honble High Court had dismissed the amended CWP also on 15.01.2009, on the ground that the Enquiry Officer had already completed the departmental enquiry, and submitted his report, which had already been referred to the UPSC for its comments.
10. OA No.1147/2008 was also filed by the applicant before this Tribunal soon after completion of the departmental enquiry, and after the submission of the report dated 02.04.2008 by the Enquiry Officer, on the ground that the departmental enquiry was conducted in a premeditated and predetermined manner, and against all the principles of natural justice, and that the procedure laid down in CCS (CCA) Rules had been flouted. This Tribunal had vide order dated 04.07.2008 dismissed that OA also, on the ground that the issue of bias of the Enquiry Officer had already been decided in OA-2467/2006, and that the OA was, therefore, premature, since a decision on the inquiry report had yet to be taken by the disciplinary authorities, that too after ascertaining the views of Central Vigilance Commission (CVC) and Union Public Service Commission (UPSC), and pointing out that the applicant will later have an opportunity to petition for review/revision as well under CCS (CCA) Rules, 1965. The applicant challenged this decision of the Tribunal in OA-1147/2008 before the Honble High Court of Delhi in CWP No.8442/2008, but the Honble High Court refused to interfere in the discretion exercised by the Tribunal in OA-1147/2008. However, the Honble High Court directed the disciplinary authorities of the applicant to look into the submission of the petitioner in the form of the representations to the Enquiry Officer, and the disciplinary authorities, and to consider the same objectively, and dispassionately, and to pass speaking orders thereupon, while passing the order on the inquiry report.
11. The applicant has stated that in furtherance of their design to prove by any means whatsoever the false and fabricated charges, the respondents had appointed on 16.10.2006 as Inquiring Authority/Inquiry Officer (IO) a retired person of the Indian Foreign Service, Shri K.K.S. Rana, of the same rank as the applicant, who was a person who not only had a long-existing bias against the applicant, but also who had never in his life ever conducted a disciplinary enquiry, so that he could be led by the hand by the Presenting Officer, and the respondents, to arrive at conclusions of the enquiry in a premeditated and predetermined direction, in fulfillment of their individual and joint designs. The applicant has also stated that the Enquiry Officer is a close friend of the former Foreign Secretary, who had initiated the entire victimization, harassment and frame up of the applicant, as both belong to the grouping/lobby of Chinese-speaking officers in the respondent-Ministry, and it is a well-known fact that this grouping of Chinese-speaking officers in the Ministry of External Affairs functions as a group/lobby to promote and protect the interests of each other. The applicant had filed a representation alleging bias on the part of the Enquiry Officer with the respondents, but the same was summarily rejected. It was because of these reasons, and the bias of the disciplinary authorities that the applicant had to represent more than once that an independent and fair inquiry should be held, outside the Ministry, in view of the official bias, but the disciplinary authorities had refused to relent.
12. The applicant has further stated that though the rules clearly lay down that Inquiries in major penalty proceedings against Gazetted Officers are required to be entrusted to Commissioners for Departmental Inquiries, yet the respondents wanted to keep the entire disciplinary proceedings under their own control, in order to arrive at findings in a predetermined and pre-decided direction, in collusion with the IO, to the detriment of the applicant, as has become evident from the subsequent actions of the respondents and the Enquiry Officer in the conduct of the Enquiry proceedings, and passing of the impugned order. The applicant has submitted that the fact that the result of the enquiry was pre-medicated as far back as on 20th April, 2006, when not even a Show Cause Notice had been issued to him, was evident from the inter-action between the PO and the applicant, as reflected in the DOS Day-16 dated 24.07.2007 (Annexure D-16), and further evidence of the same, as also the bias of the disciplinary authority, is available from the noting of 24.05.06 of the Additional Secretary, in Exhibit S-34, produced at Annexure I-34.
13. Detailed submissions have been made by the applicant in the present O.A. regarding the aspect of bias on the part of the Enquiry Officer. However, since this aspect had already been put to a rest through the orders of this Tribunal in the applicants earlier O.A. No.2467/2006, we need not touch upon the pleadings and arguments of either side on this aspect while deciding the present O.A.
14. The majority of the arguments of the applicant in person had centred upon the discrepancies in the conduct of the Disciplinary Enquiry. The applicant had pointed out that the Disciplinary Enquiry against him had been initiated by the Vigilance Unit of the MEA through Annexure B-1 dated 17.05.2006 pointing out (i to viii) alleged acts committed by the applicant, which stated as follows:-
i. In defiance of his recall order No.Q/PA I/6610/4/2006 dated 1 March 2006, not returned to headquarters till date. That Shri Dogra, after having informed Administration Division of the Ministry of his initial intention to return in the first week of April 2006, has continuously used dilatory tactics to delay returning to headquarters. That after having himself chosen a final date for return on 15 April, and despite issuance of air tickets by the Mission for his return and that of his wife and domestic assistant to India, has in a communication to Foreign Secretary dated 14 April 2006, applied for whatever leave was available to him. After having been informed that his leave application would be considered after his return, Shri Dogra has failed to communicate the date of his return to India to the Ministry and has still not joined at headquarters, in defiance of specific instructions;
ii. been on unauthorized absence from duty after 18 April 2006 when his accreditation as High Commissioner of India to New Zealand was withdrawn.
levelled unsubstantiated and completely baseless charges against a senior officer, namely, the Foreign Secretary, in his communication No.Wel/586/2/2004 (Pt.) dated 10 April 2006 addressed to the Foreign Secretary which was communicated to all HOMs/HOPs in other Indian Missions/Posts abroad and to the media;
along with his wife , Shrimati Neeta Dogra, freely aired their grievances in a service matter to the media;
.caused embarrassment to the Government of India in a foreign country by refusing to leave New Zealand after his accreditation as High Commissioner of India was withdrawn. Even the Prime Minister of New Zealand was obliged to comment to the media that once his diplomatic status was withdrawn, he was expected to make arrangements to leave New Zealand. Yet Shri Dogra has refused to leave the country stating to the New Zealand authorities and the media along with his wife that their lives would be at risk were they to return to India, causing further embarrassment to the Government of India;
used casteist words tuchcha and chamar against a fellow officer in the Mission;
been in unauthorized occupation of High Commission Residence beyond 18 April 2006; and viii. retained official documents, his personal file and RG register, without authorization.
15. On the basis of this, the Charges at Paragraphs (i to v) of the Memorandum dated 17.05.2006 had been framed against the applicant, by stating as follows:-
2. By his above acts, Shri H.K. Dogra has :
exhibited lack of devotion to duty and conduct unbecoming of a government servant thereby violating Rule 3(1)(ii) & 3(1)(iii) of CCS (Conduct) rules, 1964;
violated Rule 9 of CCS (Conduct) Rules, 1964 which stipulates that no Government servant shall in any broadcast, telecast, through any electronic media or in any document published in his own name or anonymously, pseudonymously or in the name of any other person or in any communication to the press or in any public utterance make any statement of fact or opinion which has the effect of an adverse criticism of any current or recent policy or action of the Central Government or which is capable of embarrassing the relations between the Central Government and the Government of foreign country;
not complied with Rule 15 A(2) of the CCS (Conduct) Rules, 1964 which required a Government servant to vacate Government accommodation within the time limit prescribed by the allotting authority once his allotment is cancelled;
contravened Rule 7(1) and (2) of the IFS (Conduct & Discipline) Rules, 1961 which states that no member of the service may, at any time, engage in any activity which would impair his usefulness as a member of the service and further that a member of the service shall be responsible to ensure that his spouse or dependants do not in any way behave or engage in any activity that would embarrass Government or tend to impair his usefulness as a member of the service; and failed to observe Rule 17(i) of the IFS (Conduct & Discipline) Rules, 1961 which stipulates that any failure by a member of the service to return official documents where their retention is not permissible under orders of the Government is an offence which may render the official liable to disciplinary proceedings.
3. Shri H.K. Dogra is hereby directed to reply to the above charges against him within 15 days of receipt of this communication and explain why disciplinary action should not be initiated against him for his above acts.
Receipt of this Memorandum should be acknowledged.
( L.D. Ralte) Joint Secretary (CNV) & Chief Vigilance Officer.
16. At Annexure-B 2, the applicant had filed an extract from the counter reply dated 10.10.2006 filed by the respondents in his previous OA No.1736/2006, in which in Para-11 it had been stated as follows:-
11. That the Applicant, completely ignoring the fact that he had refused to receive the show cause notice when three officials of the High Commission of India in New Zealand had gone to deliver it to him in June, 2006, sent a reply based on a copy of the show cause notice sent to his lawyer in May, 2006. The reply was received in the Ministry after a decision had already been taken by the disciplinary authority to initiate disciplinary proceedings against the Applicant.
17. At Annexure C-1/Colly (pages 126 to 165) the applicant had submitted photocopies of the numerous representations given by him to the Disciplinary Authority and the Appellate Authority on 24.10.2006, 15.12.2006, 26.02.2007, 03.05.2007, 19.08.2007, 11.09.2007, 12.09.2007, 12.10.2007 and 13.11.2007 (Annexures C-1, C-3 and C-6 to C-12).
18. The replies to his representations as issued by the respondents on 13.11.2006, 05.01.2007, 21.03.2007 and 14.12.2007 were marked as Annexures C-2, C-4, C-13, C-14). The judgment of this Tribunal in the applicants earlier OA No.2467/2006 was enclosed as Annexure C-5 (pages 171 to 173). The Daily Order Sheets of the Disciplinary Inquiry were enclosed as Annexure D-1 to D-34 (pages 174 to 276). Photocopies of Examination-in-Chief and Cross-Examination of prosecution witnesses were marked as Annexures E-I to E-II (Pages 277 to 384), and photocopies of the objections raised by the applicant to the Inaccuracies in the Daily Order Sheets of Annexures F-1 to F-5 (pages 385 to 402).
19. Thereafter the applicant had filed Compilation-II (Volume-II) in which through Annexures G-1 to G-6 he had filed photocopies of the list of defence documents to which he had requested access to, and lists of defence witnesses cited by him for being summoned at pages 403 to 413. At Annexure H-1, the Memorandum dated 21.07.2006 has been filed, through which the applicant was informed that the President proposed to hold an Enquiry against him under Rule 14 of the CCS (CCA) Rules, 1965, and the substance of the imputations of misconduct or misbehaviour in respect of which the Enquiry was proposed to be held was set out in the enclosed statement of Articles of Charge (Annexure-I), and the statement of imputations of misconduct or misbehaviour in support of each Article of Charge was enclosed as Annexure-II of that Memorandum. The lists of documents by which the Articles of Charges were proposed to be sustained were also enclosed at Annexure III and IV. The applicant was directed to submit his written statement of defence within 15 days, and to state whether he desires to be heard in person, and informed that an Inquiry will be held only in respect of those Articles of Charges as are not admitted, and he had, therefore, specifically denied each Article of Charge. While it is not necessary to discuss in detail the statement of imputations of misconduct or misbehaviour in support of the Articles of Charges levied against the applicant, it would be appropriate here to reproduce the Statement of Articles of Charge framed against the applicant, which stated as follows:-
ARTICLE I Shri Harish Kumar Dogra, IFS:1972 formerly High Commissioner of India to New Zealand, defied the Government order recalling him to Headquarters by failing to adhere to the date of his return to India set by the said Shri Harish Kumar Dogra himself and by failing to hand over charge of High Commissioner to return to India.
2. By his above acts, Shri Harish Kumar Dogra has exhibited lack of devotion to duty and conduct unbecoming of a Government Servant thereby violating Rules 3(1) (ii) and (iii) of the CCS (Conduct) Rules, 1964.
ARTICLE II
3. Following the withdrawal of his accreditation as High Commissioner of India to New Zealand on 18 April 2006, the said Shri Harish Kumar Dogra remained on unauthorized absence from duty from 19.4.06 to 17.6.06.
4. By his above act, Shri Harish Kumar Dogra has exhibited lack of devotion to duty and conduct unbecoming of a Government Servant thereby violating Rules 3(1)(ii)(iii) of the CCS (Conduct) Rules, 1964.
ARTICLE III
5. The said Shri Harish Kumar Dogra levelled unsubstantiated and completely baseless charges against a senior officer, viz. the Foreign Secretary, in his communication No.WEL/586/2/2004 (Pt.) dated 10.4.06, addressed to the Foreign Secretary. This communication, which contained highly intemperate language and information on service matters pertaining to the said Shri Dogra and the Mission under his charge, was e-mailed by Shri Dogra to all HOMs/HOPs in other Indian Missions/Posts abroad.
6. By his above act, Shri Harish Kumar Dogra has exhibited conduct unbecoming of a Government Servant thereby violating Rule 3(1) (iii) of the CCS (Conduct) Rules, 1964. He has also violated Rule 11 of the CCS (Conduct) Rules, 1964 which lays down that no Government servant shall, except in accordance with any general or special order of the Government or in the performance in good faith of the duties assigned to him, communicate, directly or indirectly, any official document or any part thereof or information to any Government servant or any other person to whom he is not authorized to communicate such document or information.
ARTICLE IV
7. The said Shri Harish Dogra and his wife, Smt. Neeta Dogra, aired their grievances in a service matter in the media.
8. By the above act, Shri Harish Kumar Dogra has violated Rule 9 of the CCS (Conduct) Rules, 1964 which stipulates that no Government Servant shall in any communication to the Press or in any public utterance, make any statement of fact or opinion which has the effect of an adverse criticism of any current or recent policy or action of the Central Government or which is capable of embarrassing the relations between the Central Government and the Government of any foreign country. Further, by the above act, Shri Harish Kumar Dogra has also violated Rules 7 (1) and (2) of the IFS (Conduct and Discipline) Rules, 1961 which stipulate that no member of the Service may, at any time, engage in any activity which would in any way tend to impair his usefulness as a member of the Service and that a member of the Service shall be responsible to ensure that his spouse and dependents do not in any way behave or engage in any activity that would embarrass the Government or tend to impair his usefulness as a member of the Service.
ARTICLE V
9. The said Shri Hasish Kumar Dogra committed a serious breach of Service discipline by seeking to obtain a stay visa for himself and his wife Smt. Neeta Dogra from the Government of New Zealand following the withdrawal of his accreditation as High Commissioner of India to New Zealand and the consequent termination of his diplomatic status in New Zealand.
10. By his above act, Shri Harish Kumar Dogra has exhibited conduct unbecoming of a Government Servant thereby violating Rule 3(1) (iii) of the CCS (Conduct) Rules, 1964. By his above act, Shri Harish Kumar Dogra has also violated Rules 7 (1) and (2) of the IFS (Conduct and Discipline) Rules, 1961 as well as Rules 12(2) and (3) of the same Rules which provide that no member of the Service shall apply for foreign nationality or an immigrant visa of a foreign country or otherwise seek emigration and further that no member of the Service shall permit his spouse or dependents to apply for foreign nationality or an immigrant visa of a foreign country or otherwise seek emigration without the prior permission of the Government.
ARTICLE VI
11. The said Shri Harish Kumar Dogra caused embarrassment to the Government of India in a foreign country by refusing to leave New Zealand even after his accreditation as High Commissioner of India to that country was withdrawn and as a result of statements by Shri Harish Kumar Dogra and his wife, Smt. Neeta Dogra, to the effect that their lives would be danger in the event of their return to India.
12. By the above act, Shri Harish Kumar Dogra has exhibited conduct unbecoming of a Government Servant thereby violating Rule 3(1) (iii) of the CCS (Conduct) Rules, 1964. By the above act, Shri Harish Kumar Dogra has also violated Rules 7(1) and (2) of the IFS (Conduct and Discipline) Rules, 1961.
ARTICLE VII
13. The said Shri Harish Kumar Dogra used casteist words Tuchcha and Chamar for a fellow officer in the Mission.
14. By his above act, Shri Harish Kumar Dogra has exhibited conduct unbecoming of a Government Servant thereby violating Rule 3(1) (iii) of the CCS (Conduct) Rules, 1964.
ARTICLE VIII
15. Following withdrawal of his accreditation as High Commissioner of India to New Zealand, the said Shri Harish Kumar Dogra remained in unauthorized occupation of the High Commissioners official residence w.e.f. 19.4.06 to 25.4.06.
16. By his above act, Shri Harish Kumar Dogra has violated Rule 15-A (2) of the CCS (Conduct) Rules, 1964 which required that a Government Servant shall, after the cancellation of his allotment of the Government accommodation, vacate the same within the time limit prescribed by the allotting authority.
ARTICLE IX
17. The said Shri Harish Kumar Dogra continued to retain his Personal file and Representational Grant file with himself even after withdrawal of his accreditation as High Commissioner on 18.4.06 and returned these official files to the Counsellor (HOC) in the Mission only on 6.6.06.
18. As a result of the above act, Shri Harish Kumar Dogra violated Rule 17 (i) of the IFS (Conduct & Discipline) Rules, 1961 which stipulates that any failure by a member of the Service to return official documents, where their retention is not permissible under orders of the Government is an offence which may render the official liable to disciplinary proceedings.
(Emphasis supplied).
20. In respect of Article-IV in particular, Para-8 of the Statement of imputations of misconduct against the applicant stated as follows:-
8. Shri Biren Nanda, JS (South), who met Shri Dogra at his residence on April 17, 2006 has reported that while he was in conversation with Shri Dogra, his wife Smt. Neeta Dogra, was constantly reading out excerpts from Shri Dogras letter of 10.4.06 to the Foreign Secretary to media persons on phone. In a report in the Dominion Post on 17.4.06, Smt. Dogra was quoted as saying that the matter concerning Shri Dogras recall had gone into the legal courts and people were taking it up in India because it had come out in the newspapers and was on television. She was further quoted as saying that they (Dogras) were not going back to India because they still had not been told the reasons for their recall. An earlier report dated 13.4.06 in the Dominion Post quoted from Shri Dogras letter dated 10.4.06 to the Foreign Secretary. The report stated, inter alia, In an extra-ordinary outburst in a 10-page letter, a copy of which was received by the Dominion Post this week, he (Shri Dogra) also calls for Indian Foreign Secretary Shyam Saran to resign. The above letter was also mentioned in a report dated 20.4.06 in The Australian. This report quoted Smt. Dogra as having told Indias PTI News Agency that the family was considering seeking protection from the New Zealand Government because of threats received from their homeland. Shri Harish Kumar Dogra also appeared in a Star News programme in which he, inter alia, aired his allegations against Shri Sanjeev Prasad, Assistant. Thus, it is clear that Shri Harish Kumar Dogra and his wife, Smt. Neeta Dogra, aired their grievances in a service matter in a media.
(Emphasis supplied).
21. Thereafter, the applicant had produced copies of the Exhibits filed on behalf of the respondents, and the Defence Exhibits produced on his behalf at Annexure J-1 to J-63 (pages 428 to 550).
22. At Annexure J-1 (page-551) the applicant had produced his statement in terms of Rule-14 (16) of the CCS (CCA) Rules, 1965, and at Annexure K-1, the applicant has produced a copy of the General Examination of him, as a Charged Officer, by the Enquiry Officer (pages 552 & 553).
23. The applicant had on 05.10.1999 filed Compilation-II Vol-III (pages 554 to 799) containing copies of the defence brief as submitted by him before the Enquiry Officer. Thereafter, on the same date, i.e., on 05.10.1999, he had filed Compilation-II Vol-IV running from pages 800 to 1013 containing copies of the Enquiry report, his representation against the findings of the Enquiry Officer, the result of the proceedings instituted by him before the RTI authorities, and at pages 1012 & 1013, a photocopy of the Honble Delhi High Court judgment in CWP No.8442/2008 and CM No.16254/2008 dated 26.03.2009 (Annexure U-I), which we may beneficially reproduce here:-
The petitioner has been proceeded against in the departmental enquiry and in this behalf charge-sheet dated 21.07.2006 has been served upon him. The disciplinary authority appointed Mr. K.K.S.Rana, respondent no.2 as the inquiry officer. Alleging bias on the part of the respondent no.2, the petitioner filed OA No. 2467/2006. The Tribunal has dismissed the said OA vide orders dated 05.03.2007. Challenging that order, the petitioner filed the WP(C) No. 2393/2008 in this Court. That writ petition was also dismissed vide orders dated 15.01.2009 inter alia observing as under:
Thus the proceedings are prolonged due to inaction on the part of the petitioner. We are informed that in the meantime the Inquiry Officer proceeded with the inquiry and even has submitted its report which has been sent to UPSC for its comments. In these circumstances, there is no reason to entertain this petition at this stage. Leaving the question open, which can be agitated by the Petitioner at the appropriate stage, the writ petition is dismissed.?
It is clear from the above that the petitioner has been given opportunity to raise the issue of bias against the respondent no.2 at the appropriate stage. On the same ground and some additional grounds, the petitioner filed another OA bearing No. 1147/2008. The only difference is that this OA was filed at the stage when the inquiry was completed and the inquiry officer had submitted his reported dated 02.04.2008. The petitioner alleged in the said OA that even the inquiry was conducted by respondent No.2 with pre-meditated and pre-determined mind having ?Biased? and flouted the procedure as laid down in CCS(CCA) Rules and that enquiry was conducted against all the principles of natural justice.
The petitioner also submitted that even the findings of the Inquiry officer in the said inquiry are recorded in biased manner without taking into consideration the defence of the petitioner. Various other grounds were raised by the petitioner and on that basis the petitioner wanted quashing of the said enquiry. The Tribunal has however, dismissed the said OA as premature.
Reading of the order of the Tribunal reveals that in para-3 of the said order various contentions were raised by the petitioner, gist of which is given above. The Tribunal however, has opined that decision on this inquiry report is yet to be taken by the disciplinary authority that too after ascertaining the views of the Central Vigilance Commissioner and the UPSC and further stated that the petitioner will have an opportunity to file petition for review/revision etc. as well under CCS (CCA) Rules, 1965. The discretion exercised by the Tribunal in not entertaining the OA, at this stage on the ground that the same is premature, is without any blemish and does not call for any interference at the same time. We are of the opinion that the grounds raised by the petitioner need due and appropriate consideration at the hands of disciplinary authority. We hope and expect that while passing the order, the disciplinary authority shall look into the aforesaid submissions which have already been made by the petitioner in the form of representation to the Inquiry Officer and consider the same objectively, dispassionately and would pass speaking order thereupon while passing the order on the inquiry order.
Subject to the above, the writ petition is otherwise dismissed.
Copy of the order be given Dasti to learned counsel for the parties.
(Emphasis supplied).
24. The reply of the respondents had been filed on 12.03.2010, running into pages 1014 to 1083, and verified by Shri N. Ramprasad, Under Secretary (Vigilance) MEA. Along with this, the respondents had filed some more documents, namely, Memorandum dated 21.07.2006 proposing to hold the Disciplinary Enquiry against the applicant under Rule-14 of the CCS (CCA) Rules, 1965, the Statement of Articles of Charge framed against the applicant, all IX of which Articles have already been reproduced by us above, the Statement of imputations, misconduct or misbehaviour in support of the Articles of Charge, which have also been mentioned above, and Para-8 of which has already been reproduced above, a copy of the written reply to the Articles of Charge filed by the applicant on 23.08.2006 as Annexure R-2 (pages 1098 to 1112), and the Enquiry report submitted by the Enquiry Officer, dated 11.03.2008, was filed by the respondents as Annexure A-3 from pages 1113 to 1153.
25. The sum and substance of the applicants case is that the Enquiry Officer paid no heed to the pleadings of the applicant, and on occasion even of his Defence Assistant, and had conducted the inquiry according to his own whims and fancies, as he saw himself not as someone conducting a quasi-judicial proceeding, but as being on a fact finding mission. In doing so, the Enquiry Officer had acted both as a Prosecutor and a Judge, and had directed himself to collecting evidence against the applicant, and also directing the Presenting Officer to do so, even when the Presenting Officer had made no such request to bring on record any additional/new evidence, to fill up the gaps in the prosecutions evidence, which additional/new evidence so collected was allowed to be relied upon by the Presenting Officer in the examination in Chief of the State Witness S-2 just 2 days later, and later relied on by the Enquiry Officer in arriving at his finding on Charge I, which was in violation of the provisions of Rule 14 (15) of the CCS (CCA) Rules, 1965, and was also in violation of the settled case law regarding the procedure for all new/additional documents/evidence to be taken on record. The applicant has further submitted that this new/additional evidence was not only relied upon by the Presenting Officer on behalf of the prosecution as mentioned above, but also by the Enquiry Officer in arriving at his findings in respect of Article VII, and, therefore, it was submitted that in line with the settled case law that if the Inquiry Officer relies on a document not included in the original or amended list of documents by which each article of charge is proposed to be sustained, the inquiry is liable to be quashed on the grounds of non-compliance with Rule 14 (4), as was held in H.L. Sethi v. Municipal Corpn. Simla, 1995 Lab. IC (H.P.) 73, and, therefore, ipso facto, the enquiry against the applicant was also liable to be quashed on the grounds of non-compliance with Rule 14 (4) of the CCS (CCA) Rules, 1965, and, consequently, the impugned order, based on the finding of such a disciplinary enquiry, is also liable to be quashed.
26. The applicant has further submitted that the charge-sheet itself was drafted in a positive language, which shows the pre-determined, biased, and closed mind of the disciplinary authorities, where the applicant could have hardly hoped for fair treatment. It has also been submitted that the charges contained in the charge-sheet were vague and infirm, without giving full particulars in respect to the dates, time, places, persons etc. The applicant has also pointed out that he was deprived of the services of a Defence Assistant at important stages of the enquiry, and substantially for a major portion of the enquiry, because of the unaccommodating stance of the Enquiry Officer, before whom the applicant made repeated pleas for being allowed to retain his legal counsel as his Defence Assistant, but the same was repeatedly turned down both by the respondents, as well as the by the Enquiry Officer, despite there being a number of mitigating factors and relevant case-laws, in terms of which a Legal Practitioner should have been allowed, on account of the applicants apprehension that the enquiry was the result of a pre-conceived plan and concerted action on the part of the respondent department. In this regard, the applicant has relied on the decision of the Honble Andhra Pradesh High Court in Dr. K. Subba Rao v. State, AIR 1957 AP 414. The applicant has further submitted that he was not allowed to bring on record many documents, nor allowed to confront the State Witnesses with those documents during their deposition, even though those documents were directly relevant to what the State Witnesses were deposing with regard to the State Exhibits or documents, and which would have established the grudge, prejudice and bias of the State witnesses in deposing falsely, thereby reflecting directly on their credibility.
27. It has been further submitted that the law, as laid down by the Honble Supreme Court, is absolutely clear that tape-recorded evidence is admissible in departmental inquiries (A.B. Bukhari v. B.R. Mehra, AIR 1975 SC 1788), but the Enquiry Officer refused to allow a tape recording to be brought on record as defence evidence, to enable him to confront SW2, despite the subject matter of the recorded evidence being directly relevant. Similarly, not a single Defence Witness, official or non-official, in India or abroad, out of the list of 34 witnesses which had been requested by the applicant, was summoned by the Enquiry Officer, even though he had himself admitted the relevance of a large number of these DWs named by him at serial Nos.23, 27, 28, 29, 30, and despite the well settled case law that the Enquiry Officer is duty bound to summon the defence witnesses. (Shiv Dutt v. State, AIR 1962 Pnb. 355).
28. The applicant has further submitted that at every possible opportunity, the Enquiry Officer had manipulated the contents of the Daily Order Sheets (DOS, in short), and he had refused to record in the DOS a correct and faithful record of the days developments, especially on occasions when an outsider independent person like the Defence Assistant was not present. The applicant has submitted that he was left with no other option but to file separately his Objections to and Inaccuracies in the DOSs with the Enquiry Officer, and the Enquiry Officer had also refused to allow the applicant to sign the DOS along with his reservations/objections to the manipulations in the purported contents. When the applicant had represented to the respondents on the above issues, the latter had, without any application of mind, and without any independent inquiry, relied on the same manipulated DOSs to reject the representations of the applicant, thus establishing their continuing collusion.
29. The applicant has alleged that the Enquiry Officer had allowed the presence of unauthorized persons at the hearing on day-5 (DOS Day-5 dated 26th Feb 2007, para 4 at Annexure D-5) which was objected to by the applicant, but the Enquiry Officer had allowed these persons, viz. US (Vig.), Shri V.K. Khanduja, and Mr. Bhattacharjee, Assistant, Vigilance Unit, representing the respondents, to continue to be present, and had even allowed them to lead him by hand in disallowing the proposed Defence Assistant Shri Malhotra brought to the hearing on that day, which had itself vitiated the inquiry proceedings to the detriment of the applicant, and that these facts were also mentioned by the applicant in his representation dated 26.02.2007.
30. It has been further submitted that the Enquiry Officer took on record most of the State Exhibits in the form of photocopies, some unsigned, despite the protestations of the defence side that they were disputed and fabricated, and were in violation of the settled law as laid down by the Honble Supreme Court in Makhan Singh v. Narainpura Cooperative Agril Service Society Ltd., AIR 1987 SC 1892, but the Enquiry Officer had refused to deal with the issue as to why the originals were not or could not be produced. The applicant has submitted that some of these disputed documents were later relied on by the Enquiry Officer in reaching his erroneous and legally untenable and unsustainable findings, though they were just photocopies of typewritten, unsigned, unauthenticated and unsubstantiated plain sheets of paper, and the contents thereof were never verified by the Enquiry Officer in reaching his erroneous and legally untenable and unsustainable findings, which were even agreed to by the respondents by passing the impugned order.
31. The applicant has further submitted that during the general examination of the applicant in terms of Rule 14 (18) of the CCS (CCA) Rules, 1965, the Enquiry Officer did not draw the attention of the applicant to any circumstances appearing against him in the evidence, with regard to any Articles of Charge, to enable him to explain any circumstances appearing in the evidence against him, which he was duty bound to do, and it is indicative of the fact that his intentions were mala fide, and in not doing so, he had provided corroboration of his well-entrenched bias to take the inquiry proceedings in a pre-determined direction, and that the defence of the applicant was gravely prejudiced by this action of the Enquiry Officer. The applicant has alleged that the entire enquiry proceedings have been conducted by the Enquiry Officer totally at his whims and fancies, keeping his personal convenience in view, and that the erratic, whimsical, and arbitrary behaviour of the Enquiry Officer to deny even the legitimate and reasonable requests of the applicant, and his DA, for short adjournments, were in total violation of the well-settled case law that adjournments should not be refused on important aspects, especially where sufficient time is available, as has been held in K. Kannan v. Union of India, 1988 (2) ATR 73, and in State of U.P. v. C.S. Sharma, AIR 1963 All. 94 especially when the IO himself took over 9 weeks (more than 2 months and 7 days) to write his Report, suitable adjournments ought to have been allowed for personal reasons.
32. It has been further submitted by the applicant that the Enquiry Officer gave directions for a novel procedure for the charge-wise Examination in Chief of Prosecution Witnesses, although the settled case law on the subject explicitly lays down that witnesses cannot be examined charge-wise. (Union of India v. Inder Nath, 1977 Lab. IC (Cal.) 1408). It has been further submitted that during the Examination in Chief of SW-2, contrary to the practice for examination of witnesses, the Enquiry Officer allowed SW-2 to constantly refer to and read from a Ministry noting sheet containing sentences, dates etc. According to the applicant, this novel procedure, as well as the leeway given to SW-2 to consult, refer to, and to read from a recorded and prepared statement influenced the process of deposition of the witness concerned to depose in favour of, and in corroboration of the charges, and thus caused grave and irreparable damage and prejudice to the defence of the applicant, which could not be un-done.
33. The applicant has also alleged that the fact that the entire inquiry proceedings were being run and controlled by the Respondent Ministry in collusion with the Enquiry Officer is evident from the manner in which PWs 1, 2 and 3, who were all Government servants, and had been summoned in their official capacities, attended the inquiry proceedings not in response to the notices served upon them by the Enquiry Officer through their controlling authorities, as is the normal procedure to be followed in departmental inquiries, but, as has been clearly brought out in the cross-examination of all the 3 PWs at pages 2 & 3 of Annexure E-4, page 2 of Annexure E-5 & pages 1 of Annexure E-10, they had attended the inquiry not on the advice or permission and instructions of their controlling authorities, but on the direct instructions of the Presenting Officer, or his superior, the JS (CNV), establishing once again the lack of impartiality of the PWs, and the entire inquiry proceedings itself. The applicant has alleged that in fact the whole inquiry had been conducted in violation of all principles of natural justice, and the applicant had been denied reasonable opportunity to defend himself, as brought out by him in the Defence Brief, and the relevant paras of the representations against the findings of the Enquiry Officer in the Inquiry Report. It has also been submitted by the applicant that the Enquiry Officer had taken on himself the role of a Prosecutor/Investigating Officer also, thereby acting both as Judge and Prosecutor, to bring on record at his own initiative some additional/new evidence, in order to fill up the gaps in the prosecution evidence, upon which he had subsequently relied on while arriving at his findings. The applicant has further alleged that while arriving at his erroneous findings, the Enquiry Officer had in effect put the burden of proof on the applicant to prove his innocence, particularly in respect of Articles of Charges I, IV, VI etc., in violation of the well settled principle of law that the burden of proof in a disciplinary enquiry is on the department/ prosecution (Central Bank of India v. Karunamoy Banerjee, AIR 1968 SC 266, Sulhendra Chandra Das v. U.T. of Tripura, AIR 1962 Tripura 15 and State of Bombay v. Gajnan Mahadev, AIR 1954 Bombay 351.
34. The applicant further submitted that in the report of the Enquiry Officer, in the paragraphs referred to as Analysis of Evidence in respect of all the Articles of Charge, there is no fair and correct analysis or appreciation of the evidence, no analysis of the evidentiary value of the Exhibits or of the depositions of witnesses etc., no reasoning as to why he considers that the States case is more credible, and as to why he considers the disputed State Exhibits as credible evidence, having evidentiary value, which can be relied upon, despite the gaping holes in their authenticity and genuineness pointed out to him by the applicant in the defence brief, or as to why the contentions/arguments etc. of the delinquent in his defence regarding the fabricated nature of the exhibits can or cannot be accepted. The applicant has further submitted that nowhere in the report of the Enquiry Officer any reason has been recorded as to why the delinquents defence evidence is not reliable/acceptable/credible, and as to why the defence contentions/arguments put forward by the delinquent are not tenable, or sustainable, nor is there any evidence which would show how with a judicious mind he has reached at a conclusion, or as to how the mind of the Enquiry Officer had been applied in giving more weightage to one or the other of the opposing arguments and contentions, or what documents and/or depositions he had relied on, and their evidentiary value, in his reaching a conclusion.
35. According to the applicant, in such a situation the whole exercise and findings arrived at by the Enquiry Officer with regard to the Articles of Charges become non judicious, and can be termed to have been arrived at non-judiciously, but they have led to erroneous and legally untenable and unsustainable surmises and findings, which have formed the basis of the impugned order passed by the applicants disciplinary authorities. The applicant has submitted that the failure of the Enquiry Officer to write a reasoned report renders the whole departmental enquiry proceedings null and void, as per the settled case law on the subject, and the Enquiry Officer must write a reasoned report, as held by the Honble Supreme Court in A.L. Kalara v. P&E Corporation, 1984 (3) SCR 646 and Anil Kumar v. Presiding Officer, AIR 1985 SC 1121.
36. It has been submitted by the applicant that the Enquiry Officer has merely reproduced the Articles of Charges and the Imputations from the soft copies of the same supplied to him by the Presenting Officer after the completion of the hearing on 04.01.2008, and then, without recording his independent findings on each and every Article of Charge, which he was duty bound to do under the Rules, the Enquiry Officer has in the Analysis of Evidence merely picked and chosen words, phrases and sentences from the prosecution brief, at his whims and fancy, according to what suited him as evidence to prove the Articles of Charges against the applicant. But, according to the applicant, the Enquiry Officer has gone wrong even in this exercise, as the Articles of Charges are required to be proved by reliable and cogent evidence, which falls within the legal definition of evidence, which the Enquiry Officer has failed to do in his report.
37. The applicant has also made some allegations that the Enquiry Officer derived pecuniary gain/benefit /interest from the respondent authorities during the period of inquiry, which is a clear violation of the settled case law in the case of R.L. Sharma v. Managing Committee, 1993 AIR SCW 2400, in terms of which the pecuniary interest, even if very small, vitiates an enquiry. If a person has a pecuniary interest, such interest, even if very small, disqualifies such person. However, since the aspect of bias on the part of the Enquiry Officer already stands put to rest by the orders of this Tribunal in the applicants earlier O.A No.2467/2006, we do not intend to take a cognizance of these submissions of the applicant also in arriving at our conclusions.
38. The applicant has submitted that on merits also, despite the erroneous, legally untenable and unsustainable findings of the Enquiry Officer, it is abundantly clear that none of the charges in the Articles of Charge levelled against him have been proved. In this connection, the applicant referred to pages 62 to 203 of the Defence Brief at Annexure P-1 of OA, and pages 11 to 60 of his representation against the findings in the report of the Enquiry Officer at Annexure R-1 of OA, dealing with the Articles of Charge. He has further submitted that this is a case of no evidence, followed by perverse findings being recorded based on surmises and conjectures, in violation of the principles of natural justice, and denial to him of reasonable opportunity of defence, as well as flouting of CCS (CCA) Rules for conduct of Enquiries, violations of the provisions of Article 14 of the Constitution of India etc., the erroneous findings of the biased and inexperienced Enquiry Officer, and the reliance placed on the same by the Disciplinary Authority also.
39. The applicant and has prayed that the impugned order deserves to be quashed and set aside. He has placed reliance on State of Uttar Pradesh v. Mohammed Nooh, 1958 SCR 595, Manak Lal v. Dr. Singhvi, 1957 SCR 575, State of Bombay v. Gajnan Mahadev, AIR 1954 Bombay 351, D.V. Kapoor v. Union of India, 1990 (3) SCR 697, judgment dated 20.04.2009 passed by the CAT in OA NO.1201/2008 in Harish Kumar, IPS (Retd.) v. Union of India & Anr., Union of India and others v. T.P. Venugopal, 2008 (3) SLJ 381 (Delhi).
40. The applicant has further submitted it has been held that if an inquiry has been held by an Enquiry Officer who is biased, or who has adopted a procedure contrary to principles of natural justice, the ultimate decision based on his report of inquiry is liable to be quashed (State of Uttar Pradesh v. Mohammed Nooh) (supra).
41. It has been further submitted by the applicant that with mala fide and vindictive intentions the Disciplinary Authority has imposed multiple penalties upon him through the order dated 20.05.2009 (Annexure A-1), and the consequential order dated 25.05.2009 (Annexure A-2), passed by the respondents just two months before the due date of his retirement on 31.07.2009, namely (a) premature compulsory retirement, (b) one third cut in pension on permanent basis, and (c) one third cut in gratuity on a permanent basis and (d) denying encashment of 10 months earned leave salary, standing to the credit of the applicant, amounting to approximately Rs.10 lakhs. It was submitted that cut in pension and gratuity can only be imposed on a charge of grave misconduct, being proven, which has been defined under Rule 8 (5), explanation (b) of the Rules, 1972.
42. The applicant has also referred to the decision of the Honble Apex Court in D.V. Kapoor v. Union of India, 1990 (3) SCR 697, in which the Honble Supreme Court had held that under Rule 9, CCS (Pension) Rules, 1972 Withholding or withdrawing of pension, and recovery therefrom, is hedged with the condition precedent that a grave misconduct was committed, and the exercise of the power in this regard by the President is hedged with a condition precedent that a finding should be recorded, either in a departmental or judicial proceedings, that the pensioner had committed great misconduct or negligence, which was the subject of the charge against him. The applicant has also submitted that the ratio of the Tribunals judgment in OA No.1201/2008 in Harish Kumar, IPS (Retd.) v. Union of India (supra) is also relevant.
43. He had further submitted that the Honble Supreme Court has held that Pension is not a bounty to be granted on the sweet will and pleasure of the Government Pensioner has a right of property in it. [Deokinandan Prasad v. State of Bihar, AIR 1971 SC 1409, State of Punjab v. K.R. Erry, AIR 1973 SC 834, State of Punjab v. Iqbal Singh, AIR 1976 SC 667, D.S. Nakra v. Union of India, AIR 1983 SC 130 and A.P. Srivastava v. Union of India, (1995) 6 SCC 227 and that It is earned for rendering a long service and is often described as deferred portion of payment for past services. It is in fact in the nature of social security plan providing for a superannuated government servant. [A.P. Srivastava v. Union of India, (1995) 6 SCC 227 and finally that The employees right to pension is a statutory right. The measure of deprivation therefore, must be correlative to or commensurate with the gravity of the grave misconduct or irregularity, as it offends the right to assistance at the evening of his life as assured under Article 14 of the Constitution. (D.V. Kapoor v. Union of India).
44. It was submitted that in State of Punjab v. Iqbal Singh, AIR 1976 SC 667 the Honble Supreme Court has held that Any order adversely affecting a pensioner in regard to his pensionary benefits cannot be made without following the principles of natural justice. In other words, before any order is made to the prejudice of the pensioner in regard to his pensionary benefits it will be necessary to afford him a reasonable opportunity to defend himself against the proposed action, and no such opportunity to represent against the proposed cut in pension was given to the applicant before the order was passed. On the basis of the above case-laws, the applicant had submitted that the impugned orders deserve to be quashed and set aside.
45. Finally the applicant in person had submitted that by passing of the order of compulsory retirement just two months prior to the normal date of his retirement on 31.07.2009, and consequentially by passing the consequential order dated 25.05.2009 at Annexure A-1, the respondents have denied the applicant even the encashment of his leave salary, standing to his credit, amounting to Rs.10 lakhs, which shows their mala fide and vindictive intentions. Accordingly the applicant had filed the present OA, seeking the aforesaid reliefs.
46. The applicant has challenged the impugned orders on the following grounds:
i) Because the entire Inquiry and departmental proceedings were vindictive, and meant to harass, persecute and humiliate the applicant, which is proved by the impugned orders. The inquiry proceedings for major penalty were started without even considering the reply of the applicant to the show cause notice, and the inquiry was meant to deflect attention from the financial corrupt practices brought to light by the applicant.
ii) Because the Enquiry Officer was totally inexperienced, of the same rank as the applicant, and was antagonistic, hostile and arrogant throughout the Enquiry proceedings, having personal malice and bias against the applicant, stemming from their post inter-actions.
iii) Because the enquiry in major penalty proceedings against the gazetted officers are required to be entrusted to Commissioners for Departmental Enquiries, and this was not done, despite representations to this effect made by the applicant to the Disciplinary Authority, and the enquiry was pre-meditated as far back as on 20th April, 2006, without even issuing a Show Cause Notice to the applicant, and despite representing on more than one occasion of the apprehension of bias, and biased actions of the Enquiry Officer during the inquiry, with its pre-medicated intentions, the Disciplinary Authority had rejected the representations of bias of the Enquiry Officer, who had then conducted the enquiry according to his own whims and fancies.
iv) Because the Enquiry Officer took on record additional/new evidence to fill up the gaps in the enquiry, in violation of the procedure under Rule 14 (15) of the CCS (CCA) Rules, 1965, and then allowed the same to be relied upon by the PO in the Examination-in-Chief of the State Witness No.2, just two days later, and which was later relied upon by the Enquiry Officer himself in reaching his findings, which were concurred in by the Disciplinary Authority, and formed the basis for the impugned order, and the charge-sheet was drafted in a positive language, which contained vague charges, and infirm and non-existent Rules were quoted which shows the biased and closed mind of the respondents.
v) Because the applicant was deprived of the services of a Defence Assistant at important and vital stages of the enquiry, and had the services of the Defence Assistant for only 15 days out of the total of 31 hearings of the enquiry, and the Enquiry Officer conducted the enquiry in collusion with the Disciplinary Authority/Presenting Officer, in violation of and against all principles of natural justice, and denial of reasonable opportunity of defence.
vi) Because the Enquiry Officer flouted practically every rule and procedure, as well as the settled case law for conduct of departmental enquiries, and even refused to stay the proceedings when representation/appeal in respect of bias was pending consideration with the Disciplinary/ Appellate Authorities, and allowed unauthorized persons to be present on day-5 of the hearing, and allowed them to lead him by hand in disallowing the proposed Defence Assistant.
vii) Because the Enquiry Officer took on record Exhibits different then those as per the list attached to the charge-sheet, and relied on them in reaching his erroneous and legally untenable and unsustainable findings, which were concurred in by the Disciplinary Authority, and formed the basis of the impugned orders.
viii) Because the IO took on record documents which had originated outside India, and which could not have been taken cognizance of in the Departmental Enquiry, which has to be limited to the Territorial Jurisdiction of India as per the Departmental Inquiries Act, 1972.
ix) Because during the General Examination of the applicant in terms of Rule 14 (18) of the CCS (CCA) Rules, 1965, the Enquiry Officer did not draw his attention to any circumstances appearing against him in the evidence, with regard to any Article of Charge, to enable him to explain any circumstances appearing in the evidence against him, which he was duty bound to do.
x) Because the Enquiry Officer gave directions for a novel procedure for the Examination-in-Chief of PWs, and insisted on having the State Witnesses examined charge-wise. He allowed the PO to read out the charge in full to the State Witness, before the PO asked a related question. This amounted to permitting leading question being put in the Examination-in-Chief of the State Witnesses.
xi) Because the PW Shri Arindim Bagchi was first allowed to function as PO, and was then sought to be brought back as a Prosecution Witness. The decisions of the Enquiry Officer and the Disciplinary Authority against this legitimate objection of the applicant show the closed minds of both of them, and their bias against the applicant and their obvious collusion.
xii) Because in the paras referred to as Analysis of Evidence in respect of all the Articles of Charges there is no fair and correct analysis or appreciation of the evidence, or of the evidentiary value of the Exhibits, or of the depositions of witnesses etc. It was submitted that nowhere in the Enquiry Officers report is there any reasonable appreciation of the evidence available, which would show how a judicious mind has reached at a conclusion, or how the mind of the Enquiry Officer has functioned. It was also submitted that the Prosecution Brief is only a document which contains inferences, conjectures and surmises drawn by the PO, and it cannot be termed as evidence to prove any fact, and that the Articles of charges are required to be proved by reliable, cogent evidence which falls within the definition of the term evidence, and the Enquiry Officer has failed to prove the basic facts by legally admissible evidence, and his findings are based on surmises and conjectures.
xiii) Because instead of allowing the witnesses to answer the questions, the Enquiry Officer interceded and started justifying the authenticity of the documents about which the witness was being cross-examined, and he did not allow the applicant to counter the testimony of State Witnesses who were attributing various statements to the applicant or his wife, which were never made, and later gave no opportunity to the applicant to set the record right.
xiv) Because in reaching his findings in respect of Article-I, the Enquiry Officer has taken into account material and evidence not included with the charge-sheet, or led in evidence during the inquiry, and has gone beyond the specifics of the charge, on the basis of his personal presumptions in the form of a set format for handing over charge, when nowhere has such a contention been made in the charge-sheet or any evidence led in this regard, and the Enquiry Officer allowed new allegations, which had never formed part of the original charge-sheet, nor which did not find any mention in the statement of imputations also.
xv) Because none of the charges in the Articles of Charges have been proved on merits, and the 1st and 2nd stage advice of the Central Vigilance Commission (CVC) were not given to the applicant before passing the impugned order of punishment by the Disciplinary Authority, which has caused him grave prejudice in the matter of his defence.
xvi) Because the Disciplinary Authority had denied him equality before law, and equality of treatment, in violation of the provisions of Article 14 of the Constitution, and that the Disciplinary Authority has not passed speaking order on all the points contended by the applicant, despite the clear directions of the Honble High Court of Delhi in CWP No.8442/2008.
xvii) Because the DA has imposed multiple penalties on the applicant by the impugned orders dated 20.05.2009 and 25.05.2009, and cut in pension and gratuity on permanent basis has been imposed by the impugned orders, even though the words grave misconduct do not appear anywhere in the chare-sheet, and the applicant was not at all charged for any grave misconduct, and that the cut in pension, gratuity etc. has been imposed without giving an opportunity to the applicant to represent against the action, prejudicially affecting his pensionary benefits, in violation of the law of the land, as decided by the Honble Supreme Court.
xviii) Because the actions of the respondents in passing of the orders of his compulsory retirement just two months prior to the normal date of his superannuation on 31.07.2009, and consequently thereby denying him even the encashment of his leave salary, standing to his credit, amounting to almost Rs.10 lakhs, are mala fide and vindictive.
47. The respondents filed their counter-reply, wherein they had explained the circumstances under which disciplinary proceedings under Rule 14 of CCS (CCA) Rules, 1965, were initiated against the applicant vide charge memorandum dated 21.07.2006 (Annexure R-1) on account of nine Articles of Charges contained therein, and since in his statement of defence dated 23.08.2006 (Annexure R-2) the applicant did not accept the charges, an enquiry into the charges framed against him was ordered by the Disciplinary Authority. The Enquiry Officer had in his reported dated 11.03.2008 (Annexure R-3) held the charges contained under Articles I, II, III, IV, VI and VIII as proved, and the charges under Articles V, VII and IX were held as not proved. The Disciplinary Authority had, however, tentatively differed with the findings of the Enquiry Officer in respect of charge as framed under Article IX, and reasons for the same were conveyed to the applicant vide memorandum dated 02.04.2008 (Annexure R-4), along with which a copy of the Enquiry Report was also forwarded to the applicant to enable him to make his representation, which he filed on 15.04.2008 (Annexure R-5).
48. After his representation was considered by the Disciplinary Authority, it was tentatively decided to impose upon the applicant the penalty of compulsory retirement, coupled with one third cut in pension and gratuity on permanent basis. The case records were then forwarded to the UPSC for its advice, vide letter dated 18.06.2008 (Annexure R-6). The UPSC also, vide its letter dated 11.02.2009 (Annexure R-7), advised that the ends of justice would be met if the proposed penalty of compulsory retirement coupled with one third cut in pension and gratuity on a permanent basis is imposed on the applicant, which advice of the UPSC was accepted by the respondents, and the proposed penalty was imposed on the applicant vide impugned order dated 20.05.2009 in terms of Rule 11 of CCS (CCA) Rules, 1965, read with Rule 40 of CCS (Pension) Rules, 1972 (Annexure R-8).
49. The respondents have submitted that the present OA filed by the applicant is misconceived and baseless and the same is liable to be dismissed. They submitted that the conduct of the applicant as High Commissioner of India in New Zealand was most unbecoming of Indias representative abroad, by not adhering to recall order issued by the respondent-Ministry, necessitating the withdrawal of his accreditation, and his airing his grievances in public in a foreign country, which was perhaps unprecedented, and had caused tremendous embarrassment to the Government of India. It was, therefore, submitted that the penalty imposed on the applicant vide impugned order dated 20.05.2009 was fully justified.
50. Entering into the realm of facts, it was further submitted that the applicant was rightly recalled from Wellington in terms of Rule 8(2)(i) of IFS (PLCA) Rules, because the respondents were satisfied that the conduct of the applicant while posted in New Zealand had caused extreme embarrassment to the Govt. of India. It was pointed out that the Honble Delhi High Court had also in its judgment dated 11.04.2008 (Annexure R-9) in CWP No.3063/2007 filed by the applicant had also observed regarding his performance as follows:-
We find, on perusal of the record, that sufficient material exists on record in terms of complaints, grievances, press record and reports of the Inspection Teams as also the evaluation by the Secretary (East) for the Government to have reached the conclusion that the High Commissioner, i.e., the applicant, was not functioning the way he ought to function and the required level of contacts, rapport with the host Government as well as with the local population was missing Further, the applicant has not been able to handle administrative problems and redress the grievances with regard to issuance of passport, visas etc. We find that there has been careful deliberation and evaluation based on the material available and the conclusion reached and opinion formed does not appear to be vitiated by mala fides or consideration of extraneous or irrelevant factors. Rather, it is the result of an objective evaluation. We are of the view that the Competent Authority has taken a decision after careful consideration and assessing the facts and circumstances and then arrived at the decision to recall the petitioner.
51. The respondents had denied the contention of the applicant that no Show Cause Notice was given to him before ordering his recall to the Headquarters, as there is no provision for issuance of such a Show Cause Notice to an officer before he is recalled to the Headquarters on account of any misconduct committed by him at the station of his posting. It was further submitted that the alleged protests of NRIs, PIOs etc. are of no importance, as the action taken by the Ministry of External Affairs in recalling the applicant from Wellington was justified, and the judgment of the Honble High Court in CWP No.3063/2007 cited above fortifies the proposition. It was submitted that the applicant has not furnished any evidence to prove that the Ministry of External Affairs was involved in publication of what the applicant terms to be gossips, innuendo and slander in the Indian and foreign media. It was submitted that the Ministry of External Affairs did not create any hurdles to prevent the applicant from returning to India. On the contrary, vide communications dated 16.03.2006, 28.03.2006, 29.03.2006, 07.04.2006, 10.04.2006, 13.04.2006 and 18.04.2006, the concerned authorities in the Ministry repeatedly directed the applicant to report for duty at Headquarters, but the applicant had simply refused to abide by the lawful directions of the Ministry.
52. It was submitted that the copies of the Show Cause Notice dated 17.05.2006 were sent to the his lawyer, the High Commission of India in Wellington, and to his son in Auckland, New Zealand, since his whereabouts were not known, as he had moved out of the residence of the High Commissioner in Wellington without providing a forwarding address. It was submitted that the officials of the High Commission of India, Wellington, had tried to deliver the Show Cause Notice to the applicant in New Zealand, but he had refused to accept it, and hence the applicant was rightly placed under suspension till the date of his compulsory retirement, because (a) his continuance in office would have seriously subverted discipline in the office where he was working, (b) his continuance in office was against public interest, (c) he deliberately refused to carry out written orders of Ministry of External Affairs. The suspension was further sought to be justified because out of nine Articles of charges framed by the Disciplinary Authority, seven were proved, leading to imposition of punishment of compulsory retirement, coupled with one third cut in pension and gratuity in terms of Rule 40 of CCS (Pension) Rules, 1972. It was pointed out that the Ministrys decision to suspend the applicant was also upheld by this Tribunal vide its judgment dated 05.03.2007 in the applicants OA No.118/2007.
53. It was further submitted that time and again the applicant had filed frivolous and baseless applications and petitions before this Tribunal, and before the Honble High Court of Delhi, with the sole intention of stalling the departmental proceedings initiated against him, but his applications and petitions were dismissed both by the Honble High Court and by this Tribunal. It was pointed out that the applicant was a Secretary of 1972 Batch of IFS in the Ministry of External Affairs, and an officer can hold no rank higher than a Secretary in the Ministry. Therefore, it was not possible to appoint an Enquiry Officer, senior in rank to the applicant from amongst the then serving Secretaries (excluding the Foreign Secretary) in the Ministry, and as the Foreign Secretary could not have been expected to perform the task of the IO in view of his/her pressing official commitments, Shri K.K.S. Rana, a retired Secretary level officer of this Ministry (and senior in batch to the applicant), was appointed as the Enquiry Officer, as he met the conditions that a retired officer is required to fulfill to be appointed as Enquiry Officer in a departmental proceeding. Further, most of the charges against the applicant related to violations of service rules of the Ministry of External Affairs, diplomacy etc., with which the Enquiry Officer was well conversant.
54. It was pointed out that the applicant raised the issue of bias and undue influence before this Tribunal in OA No.2467/2007, but the respondents had denied that the Disciplinary Authority and the Presenting Officer had exercised undue influence on the Enquiry Officer in drafting the enquiry report, and that the allegation is not substantiated and devoid of evidence. It was also submitted that the representation of the applicant for change of Enquiry Officer was duly examined in consultation with DoP&T, who had vide its note dated 06.12.2006 confirmed that the Enquiry Officer is not required to be changed merely on the suspicion of the charged officer that he will not get justice from him due to extraneous considerations. DoP&T had further clarified that there is no provision for an appeal under the CCS (CCA) Rules, 1965 for reviewing the decision of the competent authority for change of Enquiry Officer. In view of this the request of the applicant for change of Enquiry Officer was rejected.
55. It was further submitted that the Commissioners for Departmental Enquiries working in the office of the CVC are appointed for conducting inquiries only in the cases involving corruption, and that too when CVC recommends to the concerned Ministry/Department to make such an appointment, and as the applicant had not been charged with any act of corruption, and the departmental proceedings were not initiated against him on the advice of the CVC, the question of appointing a CDI was not justified.
56. The respondents had further denied that the Enquiry Officer had violated provisions of Rule 14 (15) of CCS (CCA) Rules, 1965, by taking into record the additional evidence marked as Exhibit S-4, and as per Rule 14 (15) of CCS (CCA) Rules, 1965, as, before the close of the case on behalf of the Disciplinary Authority, the Enquiry Officer may, in his discretion, allow the PO to produce evidence not included in the list already given to the delinquent Government servant, and, in such a case, the delinquent Government servant shall be entitled to have, if he demands it, a copy of the further evidence proposed to be produced, and an adjournment of the enquiry for three clear days before the production of such new evidence.
57. The respondents denied the allegation of the applicant that the charges framed under Articles I, II, IV, V and VIII were infirm. It was submitted that the charges were framed on the basis of prosecution documents taken on record during the course of the enquiry. The charges under Articles I, II, IV and VIII were held as proved during the enquiry. The Ex-S-24 (prosecution document in support of Article IV), which is an Audio Visual CD exposes the misdeed of the applicant, of airing his grievance about service matters in the media, so the allegation of the applicant that the document is fabricated is not surprising. This objection was raised by the applicant during the enquiry. However, in his statement of defence dated 23.08.2006, the applicant had conceded that he did speak to the press, when he mentioned about defending the honour when approached with questions. It was submitted that the same admission is implicit in the assertion that Ambassadors and High Commissioners are not debarred from speaking to the media, and that is not by itself a violation of rules. It was submitted that it is correct that envoys are often required to speak to the press in the course of their official work, but they cannot criticize their own Government, or refer to issues that are internal to the Government, including the matters relating to postings and transfers of officials.
58. It is seen that the Enquiry Report submitted by the Enquiry Officer contained 99 paragraphs, in which the Enquiry Officer had given his findings separately on each Articles of Charge. In respect of Articles of Charges- I,II,III,IV,VI & VIII he had come to the conclusion that the charges had been fully proven. In respect of Articles of Charges-V & VII, the charges had been held to have not been sufficiently proven, and it was held that though the charge has been largely proven, but it does not seem to be of sufficient importance to feature in this Enquiry. It was recommended by the Enquiry Officer that the Disciplinary Authority may consider this point in deciding further action. In respect of Article of Charge-IX, it was held that it was not sufficiently proven as a significant violation of regulations by the Charged Officer. Thereafter the Enquiry Officer had added nine more Paragraphs (from 91 to 99 of his report dated 11.03.2008), para 91 to 93 and 94 (a) to 94 (E) of which related to the allegations made by the applicant as Charged Officer against the Enquiry Officer himself. Para-95 noted some of the issues that arose during the Enquiry, and Paragraphs 96 to 99 related to the confidentiality adopted by the Enquiry Officer in respect of the papers submitted by the Charged Officer along with his defence brief.
59. The Memorandum served upon the applicant by the Vigilance Unit of the MEA dated 02.04.2008 was filed through Annexure R-4, in which one Shri Debnath Shaw, Joint Secretary (CNV) & Chief Vigilance Officer, had noted that the Disciplinary Authority has decided to agree with the findings of the Enquiry Officer in respect of Articles of Charge-I to VIII, and differ with the findings of the Enquiry Officer only in respect of Article of Charge-IX. It is important here to note the difference in the wordings used by the Enquiry officer and by the Joint Secretary (CNV) & Chief Vigilance Officer while issuing the Memorandum dated 02.04.2008, and the disagreement had been stated as follows:-
Article IX The charge is that Shri Harish Kumar Dogra continued to retain his personal file and representational grant file with himself even after withdrawal of his accreditation as High Commission on 18.4.2006 and returned these official files to the Counsellor (HOC) in the Mission only on 6.6.06/ Findings of the Inquiry Officer :
That the charge is not sufficiently proven as a significant violation of regulations by the CO. The IO in his analysis of evidence has opined that since the concerned files were returned by the CO before his departure from New Zealand after retaining them for a short period and since they neither contained classified papers nor documents of importance, the charge besides being of a subsidiary nature, is relatively minor.
Reasons for disagreement The finding of the IO is based on the importance and classification of the papers retained by the CO rather than the specific issues contained in the charge, i.e. failure to return official documents, where their retention is not permissible under Rule 17(i) of the IFS (Conduct & Discipline) Rules, 1961. The fact that Shri Harish Dogra retained his personal and RG file well after the date of withdrawal of accreditation on 18.04.06 and returned these filed to Counsellor (HOC) only on 06.06.06 has been admitted by the CO in his written statement of defence dated 23.8.06 to the charge memorandum. Also, the IO has not cited any evidence to the contrary. Whether routine and unclassified or classified in nature, the relevant conduct rule does not make a distinction, and hence retention of these papers by the CO beyond 18.04.06 was in contravention of the rules, which is the essence of this article of charge.
(Emphasis supplied).
60. Thereafter, the applicant Charged Officer, had been directed to submit his representation in regard to the findings of the Enquiry Officer as regards the Articles of Charges-I to IV, VI to VIII which had been held to be proved, and as regards reasons for disagreement of the Disciplinary Authority with the findings of the Enquiry Officer in respect of Article-IX, within 15 days. The representation given by the applicant Charged officer dated 15.04.2008 was produced at pages 1156 to 1242 as Annexure R-5. At Annexure R-6 (pages 1243 to 1246) was the reference made by the Joint Secretary (CNV) & Chief Vigilance Officer to the Secretary, UPSC, in which in Para-8, it was submitted that after taking into consideration the documentary evidence in support of his misconduct, and the enquiry report in respect of the Charged Officer, the Disciplinary Authority had come to the conclusion that the applicant had committed grave misconduct of maligning the Government of India and its policy before the world community, and that the Disciplinary Authority had tentatively decided to impose the penalty of compulsory retirement, coupled with one third cut in pension and gratuity on a permanent basis, upon him, and pointed out that in the normal course the applicant would be retiring from Government service on 31.07.2009.
61. The reply dated 11.02.2009 received from UPSC was placed at Annexure R-7 (pages 1247 to 1255), agreeing with the Ministrys suggestion that the Articles-I,II,III,IV,VI,VIII & IX were proved against the applicant, and concurring with the proposed penalty as already mentioned above. The penalty order dated 20.05.2009 then issued by the Vigilance Unit of MEA was produced at Annexure R-8 (pages 1256 to 1268), which is the order impugned in this OA. At Annexure R-9, the respondents had placed a copy of the judgment dated 11.04.2008 of the Honble Delhi High Court in WP (C) No.3063/2007, in which the Honble High Court had stated as follows:-
1. Petitioner by this writ petition seeks a writ of certiorari for quashing the order dated 16.11.2006, passed by the Central Administrative Tribunal, Principal Bench, dismissing OA No. 738/2006 filed by him. Petitioner in the above OA had challenged the order of recall dated 1.3.2006, passed by the respondents recalling the petitioner compulsorily from his posting at New Zealand as High Commissioner of India. The Tribunal after considering the factual version as presented by the petitioner and the respondents, reached the conclusion that the order of recall passed by the respondents was in accordance with para 8(2)(1) of Annexure 12 to the Indian Foreign Service (Pay, Leave and Compulsory Allowances) Rules (hereinafter referred to as 'the IFS(PLCA) Rules'). The Tribunal reached the conclusion that the conditions and circumstances for invocation of the Rule were in existence and that there was no ground for interference with the orders passed in exigencies of service.
2. Learned Counsel for the petitioner prays that all consequential orders emanating from recall order dated 1.3.2006 be held as illegal, arbitrary, malafide ultra vires and violative of the Articles 14, 16, 21 and 3.11 of the Constitution of India. He further prays that the suspension orders dated 6.7.2006 and 16.7.2006 be also set aside.
3. Before dealing with the grounds sought to be urged in the present writ petitions, the facts relevant for disposal of this writ petition may be briefly noted.
(i) Petitioner was posted as High Commissioner of India in New Zealand on 4.6.2004 and assumed charge with effect from 19.9.2004. On 1.3.2006, Respondents passed an order under Rule 8(2)(i) of Annexure 12 to the Indian Foreign Service (Pay, Leave and Compulsory Allowances) Rules recalling the Petitioner from his post as High Commissioner from New Zealand. On 3.3.2006, Petitioner sent a representation by classified telegram against his recall to Respondent No. 3 followed by a detailed representation along with supporting documents by diplomatic bag on 4.3.2006.
(ii) Petitioner was hospitalized on 11.3.2006 for surgery and was on bed rest until 22.3.2006. On 27.3.2006, Petitioner received message from Respondent No. 3 confirming its decision of recall and refusing any review of the decision which was stated to be taken after careful consideration. On 13.4.2006, Petitioner preferred an OA No. 738/2006 assailing the order passed by the Respondents authorities recalling from post as High Commissioner, New Zealand.
(iii) Petitioner received a Ministry of External Affairs (Vigilance Unit) memorandum dated 17.5.2006 directing petitioner to submit his reply to the various charges leveled against him in the memorandum. On 15.7.2006, petitioner submitted his reply to the said memorandum. On 10.7.2006, petitioner received a suspension order dated 6.7.2006 which was revoked on completion of 90 days on 27.10.2006. Petitioner filed O.A. No. 2466/2006 against the suspension order. It was rejected by the Tribunal. On 16.11.2006, 2nd suspension order was issued against the petitioner. His O.A. No. 118/2007 against the 2nd suspension order was also rejected. The O.A. 738/2006 filed by the petitioner on 13.4.2006 was rejected vide order dated 16.11.2006.
4. We may notice, at the outset, that in this writ petition, we are considering the petitioner's challenge to the order of recall dated 1.3.2006. Petitioner had separately challenged in the OAs the suspension orders dated 6.7.2006 and 16.11.2006 which have been dismissed by the Tribunal. There is no challenge to the orders passed in those OAs which could, of course, be the subject matter of separate challenges had the petitioner been so advised to pursue. It would not be permissible for the petitioner while challenging the order passed in the OA dismissing his challenge to the recall order to include therein the challenge to the suspension orders which have been the subject matter of separate OAs for which judicial orders have been passed by the Tribunal. We are, therefore, confining ourselves in this petition to the challenge made to the order dated 16.11.2006 dismissing OA No. 738/2006.
5. Counsel for petitioner urges that petitioner has been harassed, humiliated, victimized and persecuted by the respondents in every possible way. Petitioner submitted that while he was serving as High Commissioner of India, a number of wrong doings and corrupt practices came to his attention, which he brought to the notice of Ministry of External Affairs causing animosity, malice and attitude of personal vendetta on the part of respondents against the petitioner/Petitioner submitted that Respondent No. 3, angered by Petitioners report to the ministry regarding Sh. Sanjeev Prasad, who claims to be the nephew of former Foreign Secretary, initiated the process of recalling of the petitioner. Petitioner further alleges that sources in the Ministry of External Affairs, headed by Respondent No. 3 put out a continuous leak of negative stories and indulged in character assassination of petitioner in the Indian Media with a view to destroy the credibility, prestige and honour of the petitioner.
6. Petitioner further alleged that respondent No. 3 in collusion with respondent No. 4 got the passport of the petitioner revoked on 11/12.5.2006 without issuing him a show cause notice. He submitted that on 18.5.2006, immigration department of New Zealand informed the petitioner of revocation of his passport as per information received through the foreign office of New Zealand and that he would either have to get another valid passport or leave within 42 days. He submitted that his application for issuance of an ordinary passport was refused by HC of India. Petitioner also urged that that an internal audit team headed by Principal Controller of Accounts had carried out a full audit from 19.9.2004 to 26.5.2006, relating to the period of petitioner at HCI, Wellington. Audit records were found clean.
7. Petitioner submitted that on 22.6.2006, when he went to the office after returning from New Zealand to complete joining formalities, he was prevented from doing so. Petitioner submitted that he has not been allowed to join duty at New Delhi or anywhere else till date. Petitioner further urged that he has been given unequal treatment. He submitted that no disciplinary proceedings were initiated against numerous other officers who stayed on at UN assignments in defiance of government instructions to report back for duty.
8. We have heard counsels of both parties and perused documents on record. We had called for the records of the case from the ministry on 9.5.2007. Records of the case were produced and the same have been perused.
9. We may notice that the averments in relation to the alleged shabby and maltreatment meted out to the petitioner following the recall order particularly in relation to the vacation of the residential premises, revocation of passport and withdrawal of facilities for return to India may, at best, be urged as manifestation of the alleged prejudice against the petitioner. However, these are events, which are post recall order and do not affect the legality or validity of the said order by themselves.
10. Coming to the validity and sustainability of recall order, petitioner claims that he has had an unblemished record and a brilliant career enabling him to reach the rank of Secretary in the Ministry of External Affairs. Petitioner claims to have been a victim of the terror unleashed on him following his expose of certain wrong doings of an Officer posted in the High Commission, having great clout and influence in the Ministry of External Affairs. In short, petitioner claims that he has been made a scapegoat for acting as a whistle blower. He further alleges that recall order was vitiated by malafides at the behest of Respondent No. 3. We may notice that the initiation of process of passing recall order was well before Respondent No. 3 left Wellington. It may be noted that the exercise of power under para 8(2)(i) does not provide for or envisage issuance of a show cause notice prior to invoking the same. However, the communication sent from the Foreign Secretary intimating the recall order, contains the reasons therefor. It runs as follows:
It has been decided to recall you to Headquarters in terms of Para 8(2)(i) of Annexure XII of IFS (PLCA) Rules. Administration is issuing formal orders separately.
2. The decision is necessitated by the absence of effective interaction and rapport between the host Government and you. This has resulted, inter alia, in the Ministry not receiving meaningful inputs from you even on issues of crucial interest to us. The New Zealand Government has also expressed their dissatisfaction regarding the functioning of the mission under your leadership. Consequently, it is felt that your continuation as High Commissioner is likely to prejudice the maintenance of friendly relations between India and New Zealand.
3. Please hand over charge and report to Headquarters within 15 days.
11. Learned Counsel for the petitioner had urged that the reasons as noted above and as contained in the affidavit filed before the Tribunal on the same lines required an inquiry to be held prior to the said conclusion being reached and a decision being taken affecting the petitioner. We are unable to accept this submission. The decision to recall under para 8(2)(i) of the IFS(PLCA) Rules is a power vested in the Government to be exercised on the Government forming an opinion regarding the existence of the said circumstances. The said opinion or conclusion reached by the Government is not justiciable as the exercise for power therein is akin to a posting and does not involve any discontinuance or termination of service.
12. In view of the submissions made by learned Counsel for the petitioner, who claimed that following the 'good' and 'outstanding' reports, petitioner had been promoted as a Secretary and the present action of the respondent was on account of extraneous factors and vitiated by malafides. We had called for the original records of the decision making process and perused the same to satisfy our judicial conscience. We find, on perusal of the record, that sufficient material exists on record in terms of complaints, grievances, press reports and reports of the Inspection Teams as also the evaluation by the Secretary (East) for the Government to have reached the conclusion that the High Commissioner was not functioning the way he ought to function and the required level of contacts, rapport with the host Government as well as the local population was missing. Further, the petitioner had not been able to handle the administrative problems and redress the grievances with regard to issuance of passport, visas etc. We find that there has been careful deliberation and evaluation based on the material available and the conclusion reached and opinion formed does not appear to be vitiated by malafides or consideration of extraneous or irrelevant factors. Rather, it is the result of an objective evaluation.
13. We are of the view that the Competent Authority has taken a decision after careful consideration and assessing the facts and circumstances and then arrived at the decision to recall the petitioner. The said decision has been taken with a view to maintain good friendly relations, in pursuance of its foreign policy and in national interest/Evaluation, as to what would subserve maintenance of good foreign relations and further the foreign policy, is best left to the Executive and Foreign Policy experts. The decision to recall the petitioner cannot be substituted and replaced by any other plausible view especially in the absence of decision being vitiated by malafides, extraneous or irrelevant factors.
14. We may note that separate proceedings by way of departmental inquiry have been initiated against the petitioner for alleged misconduct inter alia in retaining the residence beyond permissible time, unauthorized absence and for conduct, causing embarrassment to the Union. As noted, petitioner had separately challenged these proceedings in Central Administrative Tribunal, but we are not concerned with the same in this petition.
15. In view of the foregoing discussion, we do not find any error or infirmity in the order of the Tribunal warranting our interference in the exercise of writ jurisdiction under Article 226 of the Constitution of India.
Petition is dismissed being devoid of merit.
(Emphasis supplied).
62. Even after the Charge-Sheet dated 21.07.2006 had been served upon the applicant alleging bias, the applicant had filed OA No.2467/2006, which was also dismissed by this Tribunal vide orders dated 05.03.2007. The applicant had then challenged that order of this Tribunal also by filing Writ Petition No.2393/2008, which was also dismissed by the Honble High Court on 15.01.2009 by observing as follows:-
Thus the proceedings are prolonged due to inaction on the part of the petitioner. We are informed that in the meantime the Inquiry Officer proceeded with the inquiry and even has submitted its report which has been sent to UPSC for its comments. In these circumstances, there is no reason to entertain this petition at this stage. Leaving the question open, which can be agitated by the Petitioner at the appropriate stage, the writ petition is dismissed.
(Emphasis supplied).
63. Thereafter by way of Annexure R-10, the respondents had produced a copy of an extract of the Para-8 at Annexure-XII of IFS (PLCA) Rules. Paragraph-8 containing relevant Para (2) (i), which states as follows:-
8. Journey on recall : (1) A journey on recall means a journey from a place abroad, at which an officer is posted to India, performed by an officer and entitled members of his family and Indian servants, when :-
an officer has been dismissed or removed from the Service while posted abroad; or
(ii) the officer is a temporary Government servant and his services have been terminated while serving in a post abroad; or
(iii) the officer was employed under the Government under a contract which has expired while he was serving in a post abroad; or the officer has been permitted to resign from service under the Government or has voluntarily terminated his contract with the Government; or
(v) the officer has been permitted to return to India at his own request; or
(vi) the officer has been recalled to India under the provisions of sub-para (2) or sub-para (3) below.
(2) 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:-
(i) has prejudiced or is like to prejudice the maintenance of friendly relations between India and a foreign country; or
(ii) has brought or is likely to bring India into disrepute; or
(iii) has caused or is likely to cause embarrassment to the Government of India; or
(iv) has occasioned or is likely to occasion a breach of the security regulations of the Government of India or a danger to security; or
(v) has occasioned or is likely to occasion the commission of an act which may constitute an offence under the Indian Penal Code; or
(vi) involves moral turpitude; or
(vii) involves a serious breach of the Conduct Rules of his Service.
the Ministry may compulsorily recall the officer to India.
(3) If the Ministry is satisfied that an officer serving abroad or a member of his family is suffering from a serious or chromic illness or disease as a result of which:-
(a) the officer has been or may become unable to perform his duties efficiently or fully; or
(b) the expenditure that has been or may be incurred on his or his 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.
64. At Annexures R-11 to R-86, the respondents had filed numerous documents from pages 1275 to 1516. These included repetitions of numerous documents filed by the applicant, as well as copies of judgments of this Tribunal dated 05.03.2007 in the applicants OA No.118/2007, and dated 05.03.2007 itself in the applicants OA No.2467/2007.
65. The applicant filed a rejoinder on 04.07.2010 to the reply filed by the respondents on 12.03.2010 (pages 1555 to 1818). The rejoinder itself ran into 236 pages. In this, the applicant had enclosed a copy of the representation given by him on 16.08.2007 to the Enquiry Officer as Annexure C-15 (pages 1794 to 1797). E-mail correspondence with the Enquiry Officer regarding his hospitalization and medical certificates was enclosed as Annexure-C-16/Colly at pages 1798 to 1800, and stated on 14.08.2007 regarding the decision of the Enquiry Officer to allow Shri Arindam Bagchi to depose as Prosecution Witness at Annexure C-17 (pages 1801 to 1809). The reply through Memorandum dated 28.08.2007 sent by the Joint Secretary (CNV) & Chief Vigilance Officer to the applicant was filed as Annexure C-18 (pages 1810 to 1815) and certain photocopies from Swamys compilation regarding CCS (CCA) Rules, 1965, had been filed thereafter as Annexures V-1 & V-2.
66. MA No.2116/2010 (pages 1819 to 1825) had been filed by the applicant pleading for Shri K.K.S. Rana, Enquiry officer to be allowed to be impleaded as party respondent in this O.A., on the ground that personal malafides had been alleged against him, and praying that unless he is impleaded as a party respondent, this Tribunal may not be able to hear the contentions on behalf of the applicant with regard to the personal malafides alleged by him against Shri K.K.S. Rana, Enquiry Officer.
67. The respondents had filed a reply to the said MA on 15.12.2010 (pages 1826 to 1838), primarily stating that if such type of practice is adopted, then nobody would like to act as an Enquiry Officer. However, the Bench considered and allowed the MA on 27.05.2011, and thus allowed the applicant to implead Shri K.K.S. Rana, the Enquiry Officer, as a party respondent, and notices were ordered to be issued to the newly impleaded respondent after considering the fact that once allegations of malafide had been raised against him, it is necessary for the applicant to implead him as a party respondent, but if malafides are not substantiated, the Enquiry Officer may well be compensated. The notice apparently could not be served on Respondent No.2 Shri K.K.S. Rana, newly impleaded respondent.
68. The applicant then moved an MA No.3288/2010 on 22.12.2010, praying for being permitted for substitution service upon Respondent No.2, Shri K.K.S. Rana, by way of newspaper publication. This MA No.3288/2010 was neither mentioned in the order dated 19.01.2012 when the present OA was earlier dismissed in default, nor mentioned in the order dated 14.03.2012, through which the MA No.441/2012 for restoration of the present OA to its original position was allowed, and was lost sight of in the subsequent proceedings. As a result, the case thereafter progressed, and was heard and reserved for orders. It had to be listed For Being Spoken To, and was then again reserved for orders, without any mention of the MA No.3288/2010. However, a counter reply was filed on behalf of Respondent No.2 Shri K.K.S. Rana, who was a private respondent mentioned in MA No.2116/2010, and, therefore, the MA No.3288/2010 can be deemed to have been disposed of. In this reply, the private respondent/R-2 had denied the allegation that he had any personal grudge, and was biased in conducting the Departmental Enquiry, and had submitted that he had acted only as a Quasi-Judicial Authority while conducting the Departmental Enquiry, and after signing the enquiry report, he had become functus officio, and, therefore, he had submitted that he does not have to offer any comments or clarifications. He had further submitted that the applicant has filed misleading Original Applications and Miscellaneous Applications, with the sole intention of causing undue harassment to the private respondent, for his having performed the duties of the Enquiry Officer, which were assigned to him by the Disciplinary Authority, a copy of which order had been annexed by him as Annexure R-1 to his affidavit (page-1848 of the paper book).
69. The applicant chose to file a rejoinder to this reply filed on behalf of private respondent/R-2 on 04.04.2011, along with an affidavit at pages 1849 to 1868 of the paper book. This prompted the private respondent/R-2 to file another counter reply, this time in person, without the assistance of the senior Central Government counsel, on 08.08.2011, which is at pages 1869 to 1875 of the paper book. The applicant again chose to file a rejoinder to the second counter reply filed by private respondent/R-2 on 14.09.2010, which appears at pages 1879 to 1893 of the paper book.
70. The applicant thereafter filed numerous additional documents also at pages 1894 to 1935 on 12.01.2010, and once again on 26.04.2012, running from pages 1936 to 1946, along with a CD. He thereafter filed a synopsis of the oral arguments running into 27 pages from pages 1947 to 1974, upon which he relied during his oral arguments made by him individually, without the assistance of any counsel.
71. The case was heard by a Special Bench and reserved for orders on 01.08.2013. Thereafter when while dictating the judgment, certain clarifications regarding Rules was found to be necessary to be sought, the case was listed For Being Spoken To on 13.03.2014, and once the copies of the Ministry of External Affairs Circulars dated 31.05.2000 and 09.02.2005 had been filed, the case was again heard and reserved for orders on 04.04.2014. Written submissions have been filed by the applicant after conclusion of the oral arguments running into 8 pages. Thereafter the applicant chose to file additional written submissions running into 10 pages dated 14.04.2014, which were submitted through the Court Officer, and the respondents also filed their replies to those additional points dated 26.05.2014 submitted through the Court Officer, which was received on 01.07.2014.
72. During the course of the arguments, the applicant, arguing his case in person, had taken us through the numerous documents filed by him in Compilation-II (Volume-I). He had pointed out that the impugned order Annexure-1 dated 20.05.2009 had imposed multiple penalties upon him, by imposing the penalty of compulsory retirement, coupled with one third cut in pension and gratuity on a permanent basis. He had pointed out that both compulsory retirement, and cut in pension and gratuity, are two separate punishments, and two such separate penalties could not have been imposed upon him by the Disciplinary Authority. He had further questioned the impugned order being signed not by the Disciplinary Authority, but on behalf of the Disciplinary Authority, by the incumbent officer working as the Joint Secretary (CNV) and Chief Vigilance Officer, though the order was stated to have been passed by order and in the name of the President.
73. The consequential orders imposing cut in his pension and gratuity on permanent basis had been passed on 25.05.2009, which also the applicant had assailed. This impugned order dated 25.05.2009 had stated as follows, and had been signed by Shri N. Ramprasad, Under Secretary of the Vigilance Unit of MEA, and had been issued only with the approval of the Joint Secretary (CNV), the authority who had signed the first impugned order dated 25.05.2009:-
Pension Section may please refer to its note bearing No.Q/Pen/585/11/07 dated 30 April 2009, regarding Shri Harish Kumar Dogra, formerly Grade I of IFS.
2. A penalty of compulsory retirement coupled with one third cut in pension and gratuity on a permanent basis has been imposed on Shri Dogra, vide order of even number dated 20 May, 2009, a copy of which has also been endorsed to Pension Section.
3. As per Government of Indias Decision No 3 below Rule 39-C of CCS (Leave) Rules read with Government of Indias Decision No 5-A below Rule 39 of the same rules (copies enclosed), where a Government servant is compulsorily retired as a measure of penalty and in whose case the cut in pension is ordered, he would not be allowed encashment of earned leave at the time of such compulsory retirement.
4. In view of the foregoing, leave encashment will not be payable to Shri Harish Kumar Dogra, formerly Grade I of IFS.
5. This issues with the approval of Joint Secretary (CNV). (Emphasis supplied).
74. The applicant had submitted his very detailed written submissions and synopsis of the oral arguments in advance. Since, as has been mentioned above, the synopsis of oral arguments filed by him on 21.12.2012 itself ran into 27 pages (pages from 1947 to 1974 of the OA), we do intend to discuss each and every legal point, which was actually advanced by the applicant in his oral arguments spread over a few days of detailed hearings specially fixed in this case in the afternoon. We can actually divide the arguments advanced by him in two categories and cite and then discuss them as clubbed together.
75. The first category of arguments of the applicant related to double jeopardy. His argument was that the penalties imposed by the respondents on him were that of compulsory retirement, and 1/3rd cut in pension, clubbed with 1/3rd cut in gratuity, as well as denial of encashment of 10 months Earned Leave salary through the impugned order. He had also clubbed the denial of pay and allowances due to him for the period of two months from 15.04.2006 to 21.06.2006, and the denial of an official or even a personal Passport to him at the relevant point of time also as penalties imposed, but which cannot be clubbed here for the purpose of consideration of penalties imposed upon the applicant through the impugned order. In regard to his claim of double jeopardy, he has relied upon the case of A.L. Kalra vs. P.& E Corporation (1984) 3 SCR 646. The second set of arguments raised by the applicant related to the whole conduct of the departmental enquiry proceedings, and the impugned order having been passed in a colourable exercise of power amounting to mala fide.
76. The applicant had pointed out numerous incidents which had happened during the conduct of the departmental enquiry proceedings, which, according to him, had vitiated the disciplinary enquiry proceedings:-
(a) One of the Prosecution Witness Officers Shri Arindim Bagchi was first appointed as a Presenting Officer, and later an order was passed by both the Enquiry Officer, as well as by the respondents of the present OA, for bringing him into the enquiry proceedings again as a Prosecution Witness. He has alleged bias and collusion on the part of both the Enquiry Officer and the Disciplinary Authority, and sought shelter behind the Punjab & Haryana High Court judgment in the case of Randhir Singh vs. Union of India C.W.P. No.180-D of 1962 in which it was held that a Prosecution Witness cannot function as Presenting Officer, which, the applicant claimed, had happened in the initial stages of the disciplinary enquiry against him. The next set of documents filed by the applicant related to the allegations of bias and personal malice against the Inquiry Officer. But this issue already having been decided and rejected by this Tribunal earlier while deciding one of his earlier OAs need not be dwelt upon, and after arguing for some time the applicant had himself dropped this argument during the hearing before us. However, since the departmental enquiry has now been completed, and penalty imposed, the applicant stuck of his arguments that the Charge Sheet against him itself was drafted in a positive language, especially in respect of Articles of Charge No. V and VI, which shows the bias and closed mind of the then incumbent Foreign Secretary, whom he has wrongly mentioned and assumed to have been his Disciplinary Authority. In fact since the applicant was arguing the case in person before us, without the assistance of an Advocate, he could not bring up the legal point in his arguments that his Disciplinary Authority is actually the President of India, and under the delegated powers, in actual terms, it is the Minister for External Affairs, and that the Foreign Secretary, Ministry of External Affairs, was never his Disciplinary Authority, although the applicant has actually wrongly called him as such throughout, in all of his pleadings, and even during his oral arguments.
(b) The applicants submission was that the Articles of Charge No. V & VI having been drafted in a positive language, showed a bias and closed mind, and a categorical opinion arrived at in advance, which can and did raise a fear or apprehension in his mind that he had no hope or chance of a fair departmental enquiry. In saying so, he had relied upon the judgments of the Honble Andhra Pradesh High Court and Calcutta High Court in the cases of P. Sreeramulu v. State of A.P. AIR 1970 A.P. 114, and B.K. Mukherjee vs. State of West Bengal (1980) 2 CWN 35. He had further relied upon the judgment of Honble Calcutta High Court in Surendra Chandra Das v. State of West Bengal, 1982 Lab. IC (Cal) 574 to submit that if from the attending circumstances, and also from the language of the charge-sheet, it appears that even before the inquiry has commenced, the Disciplinary Authority has already drawn a positive conclusion against the delinquent officer, and has thereafter started the disciplinary proceedings by issuing a charge-sheet only to afford him an opportunity to dispel the conclusion already drawn against him, then such disciplinary proceedings must be held to be bad, being vitiated by bias and a closed mind, and having been started merely to complete the formality in law.
(c) The applicant had further assailed the report submitted by the Enquiry Officer by taking shelter behind the Honble Apex Courts judgment in Rao Rallapalli Suryanarayanan vs. State of A.P. 1968 SLR 77 to submit that if the Enquiry Officer does not write his report with an open mind, and has already pre-judged the issues, the disciplinary enquiry will be nothing more than a mere farce, which he emphasized has happened in his case.
(d) The applicant had actually assailed the very initiation of the enquiry in the major penalty proceedings against him, inasmuch as the Show Cause Memorandum was not properly served upon him by the respondents, since they had sent it to wrong and incomplete addresses, and, thereafter, when he could lay his hand upon it, and then reply to the said memorandum, his reply was not considered before starting the enquiry proceedings, because of which, according to the applicant, the entire enquiry proceedings were vitiated. He further submitted that when the very initiation of the disciplinary enquiry proceedings was bad in law, all subsequent steps and stages would have to be held as bad in law. In order to support his contention that when disciplinary proceedings are intended to be initiated, the actual service of Show Cause Notice is essential, the applicant had sought shelter behind the Honble Apex Courts judgment in Union of India vs. Dinanath Shantaram Karekar, AIR 1998 SC 2722.
(e) The next set of the arguments of the applicant related to the conduct of the disciplinary proceedings by the Inquiry officer, denial to him of all reasonable opportunity to defend himself, denial for quite a large number of hearings of a defence assistant to be present on his behalf, and the presence of unauthorized persons and junior officers of the Vigilance Division of the Ministry of External Affairs during the proceedings of the disciplinary enquiry, who were allowed by the Enquiry Officer to remain present in spite of his objections to their presence during the proceedings. He had, therefore, assailed the enquiry itself as having been held against the principles of natural justice, and as per the prescribed procedure in this regard.
(f) The applicant had thereafter sought shelter behind the Tripura High Courts judgment in Union of India vs. Kula Chandra Sinha AIR 1963 Tripura 20, to submit that it has been held that if the charges themselves are vague and indefinite, and thereafter, there was a negation of reasonable opportunity of defence, and hence a violation of principles of natural justice, the enquiry has to be held to have been vitiated on that ground. The applicant had further assailed that he had not been allowed to produce his Defence Witnesses, and also the documents sought to be produced by him in his defence, and he had sought shelter behind the Honble Apex Courts judgment in Surath Chandra vs. State of West Bengal AIR 1971 SC 752, in which it was held that when full particulars and details have not been supplied to the delinquent Government servant, and he cannot properly defend himself, such particulars and details cannot be a matter of evidence to be used against the delinquent.
(g) The applicant had also assailed the charge-sheet, inasmuch as, according to him, it did not contain full particulars of the dates, the time and the places of his alleged misconduct, because of which he was denied a proper opportunity of defending himself, which had vitiated the disciplinary enquiry, and in saying so, he had sought shelter behind the Honble Apex Courts judgment in the State of U.P. v. Mohd. Shariff 1982 (2) SLR 265; AIR 1982 SC 937; 1982 (2) SLJ 259; 1982 (2) SCC 376.
(h) The applicant had submitted that when the charge itself is vague and indefinite, and the statement of imputations and allegations containing all necessary particulars in support of the charge is not furnished, the order of imposing penalties is liable to be quashed, and in saying so, he had sought shelter behind the Honble Apex Courts judgment in R. Ravinderan Nair v. State of Kerala 1983 (2) SLJ 124.
(i) Stressing upon the point that the charge must be clear, specific and definite, and any vagueness in the charge per se amounts to denial of reasonable opportunity to the delinquent, the applicant had sought shelter behind the Honble Apex Courts judgment in the case of S.R. Farishta vs. Union of India 1989 (b) SLR Del 18.
(j) The applicant had further emphasized that the Honble Apex Court had held that if the charges are vague, and are of a nature that it is very difficult for the delinquent to meet the charges fairly and evidence adduced in support of the charges is perfunctory, and does not at all bring home the guilt of the delinquent, he is entitled to be exonerated of the offence charged with. In saying so, he had relied upon the Honble Apex Courts judgment in the case of Sawai Singh vs. State of Rajasthan, AIR 1986 SC 995; (1986) 3 SCC 454.
(k) Assailing further the Articles of Charges as raised against him, the applicant had submitted that since misconduct, when and where proved, entails penal consequences, it is obligatory upon the employer to specify the misconduct, and, if necessary, define it with precision and accuracy, so that any ex post facto interpretation cannot be camouflaged as a misconduct, and relying upon the case of A.L. Kalra vs. Project and Equipment Corporation of India (supra), he had submitted that the Honble Apex Court has held that a perception of what is unbecoming of a public servant may vary with individuals, and inaccurate description of the misconduct may expose employees to the vagaries of subjective evaluation. In support of his contention that the disciplinary enquiry had been conducted without absolute adherence to principles of natural justice, the applicant had further relied upon the judgment of the Honble Andhra Pradesh High Court in the case of Dr. K. Subba Rao vs. State, AIR 1957 A.P. 414.
(l) During the course of the enquiry, the applicant had at one stage of the disciplinary enquiry sought the assistance of his legal counsel to be permitted to be his defence assistant, which request had been denied by the Enquiry Officer. In support of his contention that this request in this regard was wrongly denied, the applicant had cited the authority of the following judgments, to state that where the charge concerned involves questions of law, which could be tackled only by a legal practitioner, and the manner in which the enquiry was to be conducted, and the intricacies concerned involved an interpretation of Article 311 of the Constitution, they were certainly the matters on which the delinquent should have had the guidance of a legally trained person. In saying so, the applicant had sought shelter behind the following judgments:-
i) James Bushi v. Collector of H. Ganjam, AIR 1959 Orissa 152;
ii) J.J. Modi v. State, AIR 1962 Gujarat 197;
iii) Rao Rallapalli Suryanarayan v. State (supra);
(m) The applicant had further relied upon the Calcutta High Courts judgment in the case of A.J. Vaswani v. Union of India, SLR 1982 (3) Cal. 172, to submit that when senior officers of the department were prime witnesses, and hence nobody from the Department was volunteering to function as his Defence Assistant, the delinquent himself was perturbed, and in a bad state of health, and in an unbalanced state of mind. Since legal and factual complexities were involved, and the representation of the accused against the bias of the Enquiry Officer has been rejected, and the Presenting Officer was an experienced Police Inspector of the CBI, the defence of the accused had certainly been compromised, and he had submitted that his case is exactly on all fours with this case, and non-availability of Defence Assistant to him for major portions of the conduct of the disciplinary enquiry amounted to denial of reasonable opportunity of defence to him. It was submitted that the facility of a Defence Assistant forms a part of the reasonable opportunity available to a civil servant, enshrined in Article 311 of the Constitution.
(n) The applicant had further pointed out that a number of disputed documents were taken on record by the Enquiry Officer directly, without their being exhibited through any witnesses, which had resulted in a denial of opportunity to him to cross-examine such witnesses at the time of bringing the disputed documents on record. He had particularly listed that more than 27 such documents from Exhibits S-13 to S-40 etc. belong to the category of disputed documents used against him. He further submitted that most of the documents produced as State exhibits were not official documents at all, had no official receipt number, no official diary number, and no official dispatch number, and at best they were disputed personal papers, the contents of which were never authenticated by any witnesses. Yet, they were taken on record by the Enquiry Officer as authenticated official documents. He had further assailed the Enquiry Officer having relied upon Newspaper clippings, by submitting that it has been held that Newspaper clippings have no evidentiary value in law, and that it has been held by the Honble Apex Court in State of Madras v. A.R. Srinivasan, AIR 1966 SC 1827 that basic facts must be proved only by legally admissible evidence, which the applicant assailed had not been done in the case of the disciplinary enquiry against him.
(o) The applicant had further submitted that not a single document out of the list of 24 documents requested by him to be summoned for his defence were allowed to be summoned, even though through his detailed representation he had established their relevance to the disciplinary enquiry against him, and even access to official records had been denied to him. The applicant, therefore, submitted that the enquiry had been vitiated, because in the State of M.P. vs. Chintaman Waishampayan, AIR 1961 SC 1623, it had been held by the Honble Apex Court that refusal of access to relevant documents is violative of both principles of natural justice, and of the requirements of Article 311 (2) of the Constitution of India. He had submitted that it has been held that the charged delinquent officer has an unquestioned right of access to those documents which had formed the basis for drafting of the charges, and also those documents which are relevant for his defence.
(p) The applicant had further submitted that the Honble Apex Court has held in Kashinath Dikshita v. Union of India AIR 1986 SC 2118 that while deciding upon the relevancy of the documents, the matter should be decided by the Enquiry Officer by adopting the attitude of what is the harm in allowing it rather than adopting the posture why should I allow.
(q) The applicant had further assailed that not a single Defence Witness out of the list of 34 possible Defence Witnesses, submitted by him, having been allowed to be summoned, even though some of them being admitted even by the Enquiry Officer as having been relevant to the enquiry while submitting his report. He had, therefore, assailed the actions of the Enquiry Officer, and submitted that it has been held in Shiv Dutt v. State, AIR 1962 Punjab 355 that the Enquiry Officer is duty bound to summon the Defence Witnesses, which had not taken place in the conduct of the enquiry against him, and had resulted in reasonable facility not having been provided to him for the purpose of leading his defence. He had sought further shelter behind the observations of the Honble Bombay High Court in the case of Province of Bombay v. S. Madhukar AIR 1952 Bom. 37, to submit that as a delinquent official he was not obliged to declare or disclose in advance as to why he wanted to examine certain persons as his witnesses, and had submitted that the Honble Apex Court has held in Union of India vs. T.R. Varma, AIR 1957 SC 882 as well as in State of U.P. v. C.S. Sharma, AIR 1968 SC 158 that the Charged Employee must be given full opportunity to produce evidence on his behalf.
(r) It was further submitted by the applicant that Tape-recorded evidence is admissible in the departmental enquiries so long as the voice of the speaker is identified, accuracy of the actual recording ascertained, and the relevancy of the subject matter established, as has been held in Z.B. Bukhari v. B.R. Mehra, AIR 1975 SC 1788; (1976) 2 SCC 17. The applicant further submitted that the Honble Bombay High Court has held that if the complaint is that reasonably opportunity of defence was not given, it is for the State to satisfy the Court that such reasonable opportunity was in fact given, as had been held in the case of State of Bombay vs. Gajnan Mahadev, AIR 1954 Bombay 351, and submitted that the respondents had failed to prove as to how proper opportunity of defence was given to him.
(s) Emphasizing upon his point that numerous State exhibits were disputed Photostat copies, the applicant had pointed out that the Honble Apex Court has held in Makhan Singh v. Narainpura Cooperative Agril Service Society Ltd., (supra) that when no explanation is given for not producing the originals, mere Photostat copies of documents cannot be accepted as evidence. The applicant had assailed the Enquiry Officer having suo motu taken supplementary new/additional documents and evidence on record on numerous dates of holding the enquiry, and assailed it as the Enquiry Officer having acted as both prosecutor and Judge. He had assailed and submitted that the Enquiry Officer has actually flouted the ratio of the judgment of the Honble Himachal Pradesh High Court in S.D. Bhardwaj v. Union of India (1983) 1 SLR (HP) 32 that the Enquiry Officer has to apply his mind, and record an order in that behalf, before he allows additional evidence to be produced during the enquiry, submitting that no such reasons were recorded by the Enquiry Officer while suo motu taking additional documents on record.
(t) The applicant has alleged that new/additional documents were actually created afresh during the period of the enquiry, more than 12 months after the issuance of the charge sheet to him. It was submitted that even if any additional or new evidence has to be adduced, the procedural requirements must be complied with, as had been held by the Honble Calcutta High Court in Union of India vs. Inder Nath, 1977 Lab. IC 1408, and that it has been held by the Honble Himachal Pradesh High Court in H.L. Sethi v. Municipal Corpn., Simla, 1985 Lab IC (H.P.) 73 that even in ex-parte departmental proceedings, if the Enquiry Officer wants to rely on some additional evidence, beyond the documents enclosed to the charge sheet, notice to the charged employee in terms of Rule-14 (15) is mandatory, and if the Enquiry Officer relies on a document, which is not included in the list of documents initially listed, by which each Article of Charge was proposed to the sustained, the enquiry is liable to be quashed on the grounds of non-compliance with Rule-14 (4). The applicant had pointed out that the originators/authors of many of the Disputed State Exhibits were not led as Prosecution Witnesses to substantiate and verify the truth or otherwise of the contents of the disputed State Exhibits which remained unauthenticated, and that when he wanted to summon them as Defence Witnesses at least, even that was not allowed by the Enquiry Officer.
(u) Assailing the attitude of the Enquiry Officer in the conduct of the disciplinary enquiry, the applicant had pointed out that even his reasonable requests for adjournment had been denied, which has been held to be illegal in the following judgments:-
1) K. Kannan vs. Union of India (1988) 2 ATR 73
2) State of U.P. v. C.S. Sharma, AIR 1963 All 94;
3) Manorama v. Mani Shanker, AIR 1967 M.P. 131
4) Pillani v. Supdtg. Engineer, Vellore, 1968 Lab. IC 74.
(v) The applicant had further submitted that a novel procedure was adopted by the Enquiry Officer for Examination in Chief of Prosecution Witnesses, their having been examined charge-wise, and allowing leading questions to be put by the Presenting Officer in the Examination in Chief itself, which he stated was in violation of the Honble Calcutta High Courts judgment in the case of Union of India v. Inder Nath (supra), in which it was held that witnesses cannot be examined charge-wise.
(w) Assailing the enquiry report submitted by the Enquiry Officer, the applicant had submitted that it was as if the Enquiry officer had shifted the burden of proof on the applicant to prove his innocence, while, as per the law as laid down in the following cases, the burden of proof is on the Prosecution, once the allegations have been denied by the delinquent:-
i) Central Bank of India Ltd. v. Karunamoy Banerjee, AIR 1968 SC 266
ii) Sulhendra Chandra Das v. U.T. of Tripura, AIR 1962 Tripura 15
iii) Radhakanta v. State, AIR 1962 Orissa 125
iv) State of Bombay v. Gajnan Mahadev, AIR 1954 Bombay 351
(x) The applicant had further assailed the opportunity of cross-examination of Prosecution Witnesses having been denied to him, stating that this was in gross violation of the law as laid down by the Honble Apex Court in State of M.P. v. Chintaman Waishampayan (supra), in which it has been held that the charged employee must be afforded every opportunity to cross-examine witnesses, which is a very valuable right available to him. It was further submitted that the Enquiry Officer had first accepted and admitted the prejudice of SW-2 one Shri Jatav, but had then gone on to rely on the testimony of the same biased and prejudiced witness, which was impermissible in law. He further submitted that the Enquiry Officer had allowed new allegations to be brought on record in connection with Articles of Charges No. III & IV, which never formed part of the original charge sheet, and nor was there any mention of them in the Statement of Imputations, and could not have been brought on record through the deposition of biased State Witnesses, which was against the settled case law. Relying upon the case law of A.L. Kalra v. P&E. Corporation (supra), the applicant had submitted that the Enquiry Officer must write a reasoned report, and the conclusions reached by him must be supported by reasons based upon evidence, and the report should permit a peep into his mind as to why the evidence produced by the respondents appealed to him in preference to the evidence produced by the delinquent, which had not happened in his case, and the Enquiry Officer had failed to give his ruling on two very important issues vital to the enquiry proceedings, namely;
i) Admissibility of preparation time, and
ii) Jurisdiction of the Inquiry and related documents and witnesses, when under the Departmental Inquiries Act 1972, the jurisdiction is limited to the territorial jurisdiction of India.
(y) The applicant had thereafter submitted that the respondents had violated the law as laid down by the Honble Apex Court in State of Madras vs. A.R. Srinivasan (supra) that the charge framed against the delinquent public servant must be held to be proved by legally admissible evidence before any punishment can be imposed upon him, which had not happened in his case.
(z) The applicant had thereafter assailed the Note of Disagreement in respect of one finding of the Enquiry Officer on one Article of Charge, which was categorical and not tentative, and showed biased and closed mind of the Respondent No.1, whom he had again mistakenly addressed and called as his Disciplinary Authority, which is not true. In support of his contention, the applicant had cited the judgment dated 20.04.2009 of this Tribunal in OA No.1201/2008 Harish Kumar, IPS (Retd.) v. Union of India and Anr. in which it was held that disagreement note has to be tentative first, and a final decision on the disagreement can be arrived at only after the delinquent employee has been given a chance to make representation against the reasons for disagreement recorded by the Disciplinary Authority.
(aa) The applicant had thereafter assailed the opinion of the UPSC also, which he alleged to have been obtained by the respondents by sharing additional information with the UPSC behind the back of the applicant. This he submitted was against the ratio laid down by the Honble Apex Court in Union of India vs. Mohd. Ramzan Khan, JT (1990) 4 SC 456 in which it was held that if the delinquent is being deprived of knowledge of material against him, though the same is made available to the punishing authority in the matter of reaching his conclusion, the Rules of natural justice to be followed in a quasi-judicial matter would be affected.
(ab) The further contention of the applicant during his oral arguments and in his written submission was that without the applicant having been charged with grave misconduct, or the same having been established, final penalties in the form of one third cut in pension and gratuity, as well as denial of encashment of Earned Leave imposed on the applicant in violation of settled case law, was improper and illegal. In stating this, the applicant had relied upon the ratio in the case of D.V. Kapoor vs. Union of India (1990) 3 SCR 697: AIR 1990 SC 1923 and Rule-9 of the CCS (Pension) Rules, 1972, which had been followed by this Tribunal also in its judgment dated 20.04.2009 in OA No.1201/2008 Harish Kumar, IPS (Retd.) vs. Union of India and Another (supra). It was further submitted that in Union of India and others v. T.P. Venugopal 2008 (3) SLJ 381 (Delhi), it has been held by the Honble Apex Court that from a reading of the Memorandum of Charges and the Enquiry report, it is clear that the respondent before the Honble Apex Court had nowhere been charged categorically with grave misconduct or grave negligence, but only with violation of provisions of Rule 3 (1) and Rule 3 (2) of CCS (Conduct) Rules, 1964, which the applicant before us claimed was the case in the present case also. He further submitted that the respondents were totally at fault in ordering a cut in pension, because pension is not to be treated as a bounty payable on their sweet will, and a pensioner has a right of property in it, which is akin to his Fundamental Rights guaranteed under the Constitution of India. In making this submissions, the applicant had relied upon the following judgments:-
1) Deokinandan Prasad v. State of Bihar, AIR 1971 SC 1409
2) State of Punjab v. K.R. Erry, AIR 1973 SC 834: (1973) 1 LLJ 33
3) State of Punjab v. Iqbal Singh, AIR 1976 SC 667: (1976) SCC 1
4) D.S. Nakra v. Union of India, AIR 1983 SC 130: (1983) 2 SCR 165
5) A.P. Srivastava v. Union of India, (1995) 6 SCC 227
6) A.P. Srivastava v. Union of India, (1995) 6 SCC 227 (ac) It was further submitted that in the case of D.V. Kapoor (supra) itself, the Honble Apex Court has held that the right to gratuity is also a statutory right. Similarly on the strength of the above cited six cases, the applicant had submitted that any cut in his pension and gratuity could not have been imposed upon him without any separate Show Cause Notice having been given to him in this regard.
77. The applicant had submitted further written submissions on 12.08.2013, after the orders had been first reserved after hearing the case on 01.08.2013. Along with this, he had given a list of some cases of IFS Officers, who had overstayed abroad in their posts, and deputation abroad, in defiance of the Governments orders, but in all those cases, the respondents had not resorted to any disciplinary action as taken in his case, even though, in the case of a few of them, the DoP&T had recommended disciplinary action with break in service, by giving the details as follows:-
1) Ms. Lakshmi M Puri, IFS 1974- continued to be on deputation beyond normal maximum deputation term of 3 years.
2) Shri Amitav Banerjee IFS 1975- allowed to resign from the IFS without any disciplinary action for disobeying Government instructions.
3) Shri Jaimini Bhagwati IFS 1976- DoP&T recommended disciplinary action with break in service, but MEA took no action and he was allowed to rejoin.
4) Ms. Bhaswati Mukherjee, IFS 1976- DoP&T recommended disciplinary action with break in service, but MEA took no action against her, and she was allowed to rejoin.
5) Shri Ramu Damodaran, IFS 1978- still continuing to be in deputation beyond normal term.
6) Ms. Chitra Narayanan, IFS 1978- refused to relinquish charge as Indian Ambassador to Switzerland even after attaining the age of superannuation, no action taken by MEA.
7) Shri Nikhil Seth, IFS 1980- refused to come back after normal maximum deputation term and finally allowed to resign without any disciplinary action for disobeying Government instructions.
8) Shri A.K. Bhattacharjee, IFS 1980- continued on deputation beyond normal maximum deputation term.
9) Shri Atul Khare, IFS 1984- continued to be on deputation beyond normal maximum deputation term.
10) Shri Syed Asbaruddin, IFA 1985- continued to be on deputation beyond normal deputation terms and returned thereafter when allowed to join.
11) Shri Ajay Bisaria, IFS 1987- continued to be on deputation beyond normal deputation term.
78. The applicant had further submitted that it is settled law that if a Government servant comes to the Court, and complaints that his dismissal or removal from service are wrongful, and that reasonable opportunity of putting forth his defence was not given to him, as required by the statute, then it is for the State to satisfy the Court that in fact reasonable opportunity was indeed given to him, which he submitted the State has failed to prove in the instant case.
79. The applicant had also submitted that the Video CD recording by Star News TV Channel had been taken as an evidence and relied upon and mentioned by the Enquiry Officer in his report, after having denied the applicants prayer to call the anchor of the TV News Channel to the witness box. He submitted that in similar circumstances, a Division Bench of the Bombay High Court had in the matter of State of Bombay vs. Gajnan Mahadev Badali AIR 1954 Bombay 315, quashed the decision taken by the Government on the ground of denial of reasonable opportunity to the delinquent to defend his case. He had further submitted that the Enquiry Officer had allowed the disputed prosecution documents S-24 & S-25 to be taken on record on the pretext that Shri Arindim Bagchi will confirm the documents at a later date, but the same was never authenticated by the said Mr. Bagchi in the proceedings dated 09.07.2007. He had, therefore, reiterated his submission that he was denied proper opportunity to defend his case.
80. The applicant had also on 12.08.2013 filed a copy of the order dated 06.07.2006 signed by Shri Shyam Saran, the then Foreign Secretary, by which he had been placed under suspension. The order reads as follows:-
No.Q/Vig/842/10/06.Pt Government of India Ministry of External Affairs Dated 6 July 2006 New Delhi ORDER Whereas a disciplinary proceeding against Shri Harish Kumar Dogra, an officer of Grade I of Indian Foreign Service is contemplated.
2. Now, therefore, the President, in exercise of the powers conferred by sub-rule (1) of Rule-10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, hereby places the said Shri Harish Kumar Dogra under suspension with immediate effect.
3. It is further ordered that during the period that those Order shall remain in force, the Headquarters of Shri Harish Kumar Dogra shall be New Delhi and the said Shri Harish Kumar Dogra shall not leave the Headquarters without obtaining the previous permission of the undersigned.
By Order and in the name of the President.
(Shyam Saran) Foreign Secretary Shri Harish Kumar Dogra, House No.71, Sector 15-A NOIDA-201 301 U.P.
81. It is quite surprising that while this order mentions that it had been issued by order and in the name of the President, it has nowhere mentioned in this order that the approval of the Honble Minister for External Affairs, who had the delegated authority of the President of India as the Disciplinary Authority of the applicant, had ever been obtained, to place the applicant under suspension with immediate effect. The applicant had also enclosed a copy of the OM dated 13.02.2006 issued by DoP&T, by which it had been decided that where the Government servants are compulsorily retired as a measure of punishment, and in whose cases even if a cut in pension (including gratuity) has been ordered, the benefit of encashment of earned leave at the time of such retirement shall be allowed, which had not been allowed to him till 2013.
82. While dictating the order after going through the voluminous pleadings of both the sides, a need arose for the Bench to have the benefit of the Ministry of External Affairs instructions regarding the procedure to be followed for recall of the Officers posted abroad, in order to ascertain as to which of the allegations of the applicant against the procedure adopted by the respondents for his recall was defective, if any. Therefore, the case had to be listed For Being Spoken To. In response to the query in this regard when the case was listed For Being Spoken To, the respondents filed on 04.04.2014 copies of two Circulars No. S-536/AS (AD)/2000 dated 31.05.2000, and No. 49S/JS(AD)/2005 dated 09.02.2005. Learned counsel for the respondents pointed out to Paragraph-2 (c) & (d) out of the Paragraphs-2 (a to g) of the Circular dated 31.05.2000, stating that the procedure as laid down had been followed in the case of the applicant as follows:-
In view of the growing incidence of unauthorized absence and desertion of officials posted abroad, especially in North America, the Ministry of has carried out a review of existing procedure in this regard.
2. All present and future cases of unauthorized absence in our Missions and Posts abroad shall be dealt with in the following manner:-
(a & b)xxxxxxxxxx (Not reproduced here)
(c) If an official posted abroad overstays without the Ministrys approval, no consular services whatsoever should be rendered to such an official, which implies that the official or diplomatic passport should not be extended, nor an ordinary passport provided in its place.
(d) In all cases of unauthorized absence or overstay, the Ministry of would impound the passport for violation of government orders under Section 10(3) (a) of the Passport Act and provide the official an Emergency Certificate to return to India under Section 106(2) (a) of the Passport Act.
(e to g) xxxxxxxx (Not Reproduced here)
3. xxxxxxxxxx(Not Reproduced here).
(Emphasis supplied).
83. In the Circular dated 09.02.2005, the similar instructions in Para-3 (iii) had been reiterated as below:-
In view of the growing incidence of unauthorized absence and desertion of Officials posted especially in North America, the Ministry had issued detailed instructions to all Missions/Posts vide its circular No. S-536/AS(AD)/2000 dated May 31, 2000 to deal with such cases. However, it was noticed that these instructions were not implemented vigorously and consequently the unhealthy trend of unauthorized absence and desertions could not be curbed to the Ministrys expectations.
2. Accordingly, the Ministry after carrying out a review of existing instructions /procedures, have formulated instructions for the Missions/ Posts to deal with unauthorized absence /desertion cases.
3. Therefore, in supersession of all previous orders/ instructions on the subject it has been decided that all present and future cases of unauthorized absence /desertions in our Missions and Posts shall be dealt with in accordance with the following instructions:-
(i & ii)xxxxxxxxxxx(Not Reproduced here)
iii) If an official posted abroad overstays without the Ministrys approval, no consular services whatsoever should be rendered to such an official which implies that the official or diplomatic passport would not be extended nor an ordinary passport provided in its place. Action may be initiated to impound the passport under Section 10(3)(a) of the Passport Act for violation of Governments order. Emergency Certificate maybe provided for return of official to India under Section 4 (2) (a) of the Passport Act. All PIAs may be informed of the action taken. Local authorities may be notified of the action t ensure that the errant officer/official finds it difficult to extend his stay in the country concerned.
(iv) xxxxxxxxxxxxxxx(Not reproduced here) (Emphasis supplied).
84. Learned counsel for the respondents had also filed a copy of a letter dated 29.08.2013 (after the case had been reserved for orders the first time) received by him from Deputy Secretary (Vigilance), MEA Shri Vijay Khanduja, which had stated as follows:-
This is regarding the direction of the Honble Central Administrative Tribunal, Principal Bench, New Delhi , regarding admissibility of preparation time to Shri Harish K. Dogra, formerly Grade I of IFS, who was recalled from New Zealand, where he was posted as High Commissioner, under Para 8(2)(i) of IFS (PLCA) Rules Annexure A). The recall order has been enclosed as Annexure R-74 to the counter affidavit of the OA filed by Shri Dogra in the Honble Tribunal.
2. As per Chapter 8 of IFS (PLCA) Rules for journeys on recall to India, only the actual travel time by the authorized route up-to the port of disembarkation in India maybe reckoned as duty and no preparation time shall be admissible (Annexure B).
3. Further Para 1(4) (iii) (b) of Annexure XX to IFS (PLCA) Rules (Annexure C), states that for a journey on recall to India an officer shall be entitled to joining time as follows:-
If the proceedings have been or are drawn up, joining time, not including preparation time shall be admissible to the place of entry into India, unless he is placed under suspension prior to his entry into India.
4. Vide letter No.1145/AS (AD)/2006 dated April 18, 2006 it was conveyed to Shri Dogra, that his accreditation as High Commissioner to New Zealand stand withdrawn with effect from Tuesday, April 18,2006 and his continued stay in New Zealand was unauthorized (Annexure D). The aforesaid letter has been enclosed as Annexure R-17 to the counter affidavit of the OA filed by Shri Dogra in the Honble Tribunal. Shri T.R. Jatav, the then, Acting High Commissioner in High Commission of India, New Zealand, vide his letter No. WEL/586/3/2004 dated 22.4.2006(Annexure E) conveyed to Shri Dogra that since preparation time was not admissible, his stay in New Zealand beyond the date on which his accreditation as High Commissioner in that country was withdrawn i.e. 18.04.2006, was authorized. In view of this the continued stay of Shri Dgora at his official residence in New Zealand 18.04.2006 was unauthorized. The letter of Shri Jatav has been enclosed as Annexure E-73 of the counter affidavit filed by Shri Dogra in the Honble Tribunal.
5. We shall be grateful, if the rule position is brought to the notice of the Honble Judges.
(Emphasis supplied).
85. Enclosed to this, as an Annexure, was another copy of the letter dated 01.03.2006 regarding recall of the applicant, which had been addressed to the Head of Chancery of the High Commissioner of India, and had stated as follows:-
No.Q/PA-16610/4/2006 Government of India, Ministry of External Affairs (PA I Section) New Delhi, the 1st March, 2006 The Head of Chancery High Commission of India Wellington.
Subject: Recall of Shri Harish Dogra, High Commissioner to Headquarters in terms of para 8(2)(i) of Annexure XII to IFS(PLCA) Rules.
Sir, The competent authority is satisfied that reasons and circumstances, as stipulated vide para 8(2)(i) of Annexure XII to IFS (PLCA) Rules, exist to justify the recall of Shri Harish Dogra, High Commissioner in your Mission, to Headquarters, and has been taken a decision to this effect. I am, therefore, directed to convey the sanction of the President to the recall of Shri Harish Dogra under the above mentioned Rules.
2. The move of Shri Harish Dogra, the entitled members of his family and entitled number of servants, if any, will be regulated as under:-
Travelling Allowances:- The passages of the officer, entitled members of his family and entitled number of servants, if any by entitled class and approved route as well as transportation of officers personal effects from Wellington to India will be regulated in terms of provisions contained in para 15(2) of Annexure XII to IFS(PLCA) Rules.
Joining Time:- The joining time of the officer will be regulated in terms of the provisions contained in para 1 (4) of Annexure XX to IFS(PLCA) Rules.
3. The expenditure on the recall of the officer, the entitled members of his family and entitled number of servants, if any, would be debitable to the sanctioned budget grant of your Mission, under Head 2061-00.`101- Embasssies & Missions-00.00.12-Foreign Travel Expenses.
Yours faithfully
Sd/ (S.Nangia) Administrative Officer (PA-I)
86. The applicant had also submitted another abridged version of the synopsis of his oral arguments dated 14.04.2014, in the form of bullet points, nearly all of which have already covered in the above discussion. The same had been received by the Respondents counsel on 21.04.2014, after the matter had been reserved for orders the second time, after Being Spoken To, on 04.04.2014. The applicant filed certain additional written submissions on the clarifications sought by the Bench when the OA was listed For Being Spoken To. In this he had made the following points:-
1. Procedure for Recall of Ambassadors As per the findings and conclusions reached by the Inquiry officer, no written rules exist on the procedure for the recall of a High Commissioner (Ambassador).
2. Procedure for Cancellation of Diplomatic Passports Important Note: Circulars No. S-536/AS(AD)/2000 dated 31-5-2000 and No.49S/JS(AD)/2005 dated 09-02-2005 submitted by the Respondents, are Administrative instructions issued by the AS (AD) and JS (AD) and cannot supercede the Statutory Rules and Regulations.
3. Moreover, revocation or impounding of a passport in terms of Section 10(3)(a) of the Passport Act is permissible only if the passport authority is satisfied that the holder of the passport or travel document is in wrongful possession thereof;
4. So far as the Applicant is concerned, as a Secretary level Officer, the Applicant was/is entitled to a Diplomatic Passport for life, even after retirement. A Diplomatic Passport, for a Secretary level IFS Officer, is like of the Fundamental Right of an ordinary citizen for an ordinary passport as per the Passport Manual Chapter XII, Para 6(ii)(a) read with Appendix 30, Category E. In these circumstances the Applicant was not in wrongful possession of his passport to attract the provisions of Section 10(3)(a) of the Passport Act.
5. Even in case of IFS Officers, other than those of Secretary rank of the MEA, who overstay abroad, they are to be issued ordinary passports on surrender of their diplomatic/official passports.
6. The Applicant was denied even an ordinary passport as broughtout during the cross-examination of SW-2.
7. Moreover, as per law laid down by the Supreme Court, no person can be deprived of his passport without being given an opportunity of being heard.
8. till 18.06.06, the Applicant had in his possession no valid travel document and could not have travelled outside New Zealand The Applicant was handed over in Emergency Certificate only on 18.06.2006 and travelled from New Zealand to India the same day.
9. Even during the Inquiry proceedings, when the Applicant sought the Correspondence and notings pertaining to cancellation of valid Diplomatic passport of Shri Harish K. Dogra and denial of even an ordinary passport to him as a defence document, even this was denied to him as not being relevant to the Inquiry even though they were directly relevant to Articles of Charge II, V, VI, VIII.
10. According to the DoPT Rules in case of ordinate delay in release of legitimate dues, Penal interest is payable to the affected party. For example, for delay in payment of Gratuity, the penal interest payable is the GPF rate of interest of 8.75% +2% = 10.75%.
(Emphasis supplied).
87. Thereafter, on 26.05.2014, the learned counsel for the respondents filed a further reply to the additional submissions, signed by the counsel and a deponent. While the name and designation of the deponent concerned was not mentioned anywhere in that affidavit, verified by the deponent on 26.05.2014, the following further points had been made in this reply to the applicants additional submissions:-
1) Even though the applicant was occupying the post of High Commissioner, he was bound to follow the rules and regulations laid down in the Indian Foreign Service (PLCA) Rules, 1961 plus amendments carried on such rules from time to time. His recall from High Commission of India, Wellington, is governed by Para 8 (2) (i) of Annexure XII of IFS (PLCA) Rules, which has been annexed as Annexure R-10 to the counter affidavit of the OA (page 255).
2) The applicant challenged the order recalling him from Wellington, in the Honble High Court. Honble Justice Shri Manmohan Sareen endorsed the decision of Ministry of External Affairs, by dismissing the writ petition filed by the applicant. A copy of the order dated 11.04.2008, passed by the Honble High Court has been annexed as Annexure R-9 of the counter affidavit to the OA (page 250 to 254).
3. One of the articles of charge framed against the applicant was that following withdrawal of his accreditation as High Commissioner of India to New Zealand on 18.04.2006, the applicant remained on unauthorized absence from duty from 19.04.2006 to 17.06.2006. The article of charge was held as proved during inquiry.
4. The respondents cannot be faulted for impounding the applicants diplomatic passport and issuing him an emergency certificate for returning to India in terms of Para 2 (c) and (d) of Ministry of External Affairs Circular No. S-536/AS(AD)/2000 dated 31.05.2000.
5. It is within the full rights of the Administrative authorities to issue circulars/guidelines, to curb growing incidence of unauthorized absence and desertion of officers/officials in developed countries.
6. Payment of encashment of earned leave to the applicant, is already authorized in terms of DOPT OM No. 14028/1/2004-Estt (I) dated 13.02.2006.
7. It is reiterated that the rules in force during 2006 specifically state that for journeys on recall on India, only the actual travel time by the authorized route up to the port of disembarkation in India may be reckoned as duty and no preparation time shall be admissible. The applicants stay in New Zealand, beyond 18.04.2006, following withdrawal of his accreditation as High Commissioner was unauthorized.
FINDINGS
88. The applicant of this case has built up his case as if he was a whistle blower, and had acted proactively in controlling the corrupt and exploitative practices of travel agents and tour agents in New Zealand, which were being operated in connivance with some lower level officials in the HCI in New Zealand. It is a given tenet of Administrative Law that the departmental authorities are best judges of the facts, and Courts and Tribunals cannot normally enter into the realm of the facts, and take upon themselves the task of re-appreciating the evidence, and deciding otherwise than the decision arrived at by the departmental authorities. This restriction on the powers of judicial review of Courts and Tribunals has been reiterated by the Honble Apex Court again and again, in numerous cases. The Courts and Tribunals cannot also re-appreciate the evidence brought on record in a D.E. in respect of Articles of Charges, and substitute their own findings in regard to them, in place of the findings of the Enquiry Officer, and the Disciplinary and Appellate Authorities. However, in Tata Cellular v. Union of India (1994) 6 SCC 651: AIR 1996 SC 2111, while reiterating this general concept, the Honble Apex Court had gone ahead to lay down the ratio that if the authority takes a decision on the basis of some materials, which a reasonable person could have taken in that case, judicial review is not permissible, but, on the other hand, if the decision is based on no legitimate reasons, and/or is actuated by bad faith, then judicial interference would be the proper remedy to undo the wrong. Therefore, Courts and Tribunals cannot be blind to the wrong doings committed, only because they have been prohibited from re-appreciating the evidence in the normal course in judicial review.
89. According to the Wednesbury Principles laid down in the case of Associated Provincial Picture Houses Ltd. vs. Wednesbury Corporation (1948) 1 KB 223, while it is expected from the administrative authorities that they would act fairly, and shall not be guided by extraneous or irrelevant considerations, but if a decision of the administrative authorities is so outrageous in its defiance of logic that no sensible person, who has applied his mind, could have arrived at that conclusion, judicial review of such an action is permissible. The noted Author Sir William Wade has also in his book on Administrative Law opined that within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. But if it passes those bounds, it acts ultra vires. In his Book, Sir William Wade had also commented on Partial Invalidity of administrative action, and Severance of good from bad, since an Administrative Act may be partially good and partially bad, as appears to have been the situation in the instant case of the applicant before us. It was opined by the learned Author that if the bad can be cleanly severed from the good, the Court will quash the bad part only, and leave the good standing. But where an order is not divisible into component parts, but is a single whole, the Court may decline to sever the bad from the good, as, according to the learned Author, the Court had done in the case of R. v. Secretary of State for Transport ex. P. Greater London Council (1986) QB 556. But since there is no blue pencil rule, requiring the bad part of the order to be identified in the order itself, the learned Author has opined that the judgment of the Court in these case would depend not upon rigid rules, but upon the balance of advantage as perceived by the Court. Finally, the learned Author had relied upon the case of Royal Bank of Canada v. IRC (1972) Ch. 665 to state as follows:-
But it may well be that if the excess is so entwined with the valid as to be separable from it only with difficulty then the whole the requirement will be bad: the subject ought not to be required to perform delicate surgery upon what is in substance a single requirement.
(Emphasis supplied).
90. In the instant case, when the issue was limited to the recall of the applicant from his posting as HCI at New Zealand, the case of the respondent-authorities was strong enough for them to decide to take such an action, and issue an order of recall dated 01.03.2006, and later on, as was noted by the Honble Delhi High Court also, that they could produce the file before the Honble High Court, and the Honble High Court felt convinced/satisfied about the desirability of the recall order of the applicant having been passed, and could decide against the applicant in his WP (C) No.3063/2007, as already reproduced above.
91. If the applicant was at fault, and his claim regarding being a whistle blower and trying to act proactively in controlling the corrupt and exploitative practices of travel agents and tour agents in New Zealand is inherently wrong, the respondents were fully within their rights to proceed against the applicant, and recall him from his posting, and then post him elsewhere, and even initiate the Disciplinary Enquiry to punish him. But, all this they could have done only as per the Rule and Law, and by a proper application of mind at every stage at the level of the Disciplinary Authority of the applicant, i.e., the President of India, or in his delegated authority, by the Honble Minister for External Affairs. Unfortunately, the respondents have failed to show any proof whatsoever for all of their actions right from February-March 2006 onwards to have been taken after obtaining the approval on file of the Honble Minister for External Affairs as the Disciplinary Authority of the applicant, who should have approved on file on each occasion when any such decision had to be taken. The papers as produced before us rather reveal that it was a proactive Vigilance Division of the MEA under the acting the directions of the then Foreign Secretary Shri Shyam Saran, which ran the whole show, took all the decisions, implemented them, suspended the applicant, drafted the Articles of Charges, issued those Articles of Charges for instituting the inquiry, appointed the Enquiry Officer, considered the report of the Enquiry Officer, and decided about the applicant being compulsory retired, but without disclosing before this Tribunal as to at how many of these stages, approval had been obtained from the only Competent Authority available to take any of these decisions, which was the Honble Minister for External Affairs, acting under the authority of the President of India delegated to him under Article-72 of the Constitution of India.
92. We are unable to fathom the functioning of the MEA from these documents. Even the applicant, who has been suffering at the hands of the respondent No.1 Foreign Secretary, MEA, for last more than 8 years, has in all of his pleadings, every where, addressed the Foreign Secretary to have been the Disciplinary Authority, which is not true. The Foreign Secretary being senior to the HCI at New Zealand may have been an authority to write his ACRs, but that does not make him his Disciplinary Authority. The terms Disciplinary Authority, Appellate Authority and Revision/Revisional Authority cannot be demeaned and degraded from the status assigned to these terms under the CCS (CCA) Rules, 1965, which have been framed as a delegated legislation under the powers available to the Executive under Articles 309 to 311 of the Constitution of India.
93. It has been held that a Disciplinary Enquiry can be instituted against a delinquent Government official only by his appointing authority, which, certainly, in the case of the applicant, was the President of India, and under the delegation of powers under Article-72 of the Constitution, the Honble Minister for External Affairs. The Memorandum of Articles of Charges to be issued to the delinquent had also to be issued under the authority and signatures of the Disciplinary Authority only, which does not appear to have happened in the instant case, as almost every single document produced before us, apart from the order of suspension has been signed by the Joint Secretary (CNV) and Chief Vigilance Officer, and not by the Disciplinary Authority the Honble Minister for External Affairs.
94. In the case of Paresh Chandra Dutta v. Collector of Calcutta and Ors., 1979(1) SLR 44 (Calcutta) while discussing the powers of appointment of the Disciplinary Authority under CCS (CCA) Rules, 1965, the Honble Calcutta High Court had held that even an officer acting as a stop gap arrangement in place of the Appointing Authority was not competent to perform the statutory functions flowing from the CCS (CCA) Rules, 1965. It was held by the Honble High Court that the charge-sheet issued by an incumbent, who was having the authority by virtue of his holding current charge, by way of stop-gap arrangement, was illegal, and the Disciplinary Enquiry against the delinquent Government official was, therefore, held to have been vitiated.
95. In the instant case before us, at what level the decision to recall the applicant from his posting as HCI, New Zealand was taken has not been disclosed, nor are we concerned with that. At what level the decision to impound his Diplomatic Passport without even issuing to him a temporary slip by way of travel document to travel back to India was taken, by whom and under whose approval and authority, has also not been disclosed, but we are not concerned with that also. This issue has been raked up by the applicant in his previous OA, and had travelled up to the Honble High Court, which had been decided.
96. In the present proceedings, we are concerned only with the process of the institution of Departmental Enquiry against the applicant, the process of framing and approval of charges, Articles of Charges, Statement of Imputations of misconduct and misbehaviour in support of the Articles of Charges, and the List of Witnesses and the List of Documents through which the Articles of Charges were proposed to be proved, to which necessarily, as per Law, the Disciplinary Authority of the delinquent official has to apply his mind, and approve, and issue under his signature, as was reiterated by the Honble Calcutta High Court in the above cited judgment.
97. The respondents have failed to disclose as to at what stages the approval on file of the Honble Minister for External Affairs was obtained, and as to when did he apply his mind in respect of the Articles of Charges, and other documents. The Law is clear in this regard that the Disciplinary Authority himself may not sit down and draft the Articles of Charges and other associated documents. He can get them drafted by the officials below him, but the application of mind by the Disciplinary Authority for approval of the draft so prepared by the official below him is a sine qua non, and the Disciplinary Enquiry against the applicant could not have been even initiated under a Statement of Articles of Charge and Memorandum of Articles of Charge being signed and issued by the Foreign Secretary, who was his equivalent in rank, though senior, and certainly not his Disciplinary Authority. As opposed to that, in this case, everything appears to have been done at the level of Joint Secretary (CNV) & Chief Vigilance Officer only, who was not only junior in rank to the applicant, but also had no business to be signing any of the documents concerned.
98. The separation of vigilance functions from the functions of Disciplinary and Appellate Authorities under CCS (CCA) Rules, 1965, had been examined in great detail by a Coordinate Bench of this Tribunal in OA No. 89/2009 Prem Prakash vs. Union of India at Jodhpur Bench of this Tribunal, in which one of us was a Member of the Bench [Member (A)] and it was examined and clarified that there has to be a steel wall like separation between the two functions, and the Vigilance Wing of any Ministry or Department cannot perform any of the functions under the CCS (CCA) Rules, 1965. Exactly the opposite has happened in the instant case.
99. The journey of the applicants case before the Honble Delhi High Court thrice earlier has already been noted above, and the Honble Delhi High Courts, observations have also already been reproduced above. However, this is the first time in these numerous proceedings that this Tribunal is looking at the entire facts of the case, after the orders of the Disciplinary Authority had been passed, after obtaining the opinion of the UPSC on the enquiry report, as submitted by the Enquiry Officer, private respondent/R-2. In all the previous OAs, the applicant had not had an occasion to challenge the charges as levelled against him, some of which have been held to be proved and some of which, have been held to be not proved, and in respect of one of which the Disciplinary Authority had disagreed with the findings of the Enquiry Officer, and held it to have been proved, as already discussed above.
100. Before recording our conclusions in this case on the basis of a detailed reading of the voluminous pleadings in this case, and consideration of the extremely lengthy arguments from both the sides, it may be pointed out here that the officers of the Indian Foreign Service, since they hold posts and positions outside India also, they are governed by two sets of Conduct and Discipline and Appeal Rules. The Indian Foreign Service (Conduct & Discipline) Rules, 1961, notified vide Notification No.780-GA/61/ dated 15.12.1961 prescribe as to what aspects of the Central Civil Services (Conduct) Rules, 1964, apply to the officials of the Indian Foreign Service and with what modifications. The CCS (Conduct & Appeal) Rules, 1965, apply to them in their entirety.
101. It may be noted here that before issuing the Charge Memorandum to the applicant initiating the Departmental Enquiry, a Memorandum dated 17.05.2006 by way of Show Cause Notice had been issued to the applicant, which has already been reproduced above. Paragraph 2 (i,ii & iii) related to misconduct and misdemeanor alleged against the applicant under CCS (Conduct) Rules, 1964, Paragraph-2 (iv & v) concerns contravention of Rule 7(1) and (2) of IFS (Conduct & Discipline) Rules, 1961 and Rule 17(i) of the IFS (Conduct & Discipline) Rules, 1961.
102. Memorandum dated 21.07.2006 issued by the Vigilance Unit of the Ministry of External Affairs had enclosed Articles of Charges and proposed to hold an enquiry against him only under Rule-14 of the CCS (CCA) Rules, 1965, as mentioned in paragraphs-1 & 4 (page 414 of the paper book). However, the Statement of Articles of Charge framed against him, which was enclosed as Annexure I, and the IX Articles of Charges framed against the applicant, made a mention of both the CCS (Conduct) Rules, 1964, in respect of Articles of Charges I,II & III, both Rule-9 of the CCS (Conduct) Rules, 1964, and Rule-7 (1) and (2) of the IFS (Conduct and Discipline) Rules, 1961, in respect of Articles of Charge-IV, and both the Rules 3(1) (iii) of the CCS (Conduct) Rules, 1964 as well as Rule-7(1) & (2) and Rule-12 (2) & (3) of the IFS (Conduct and Discipline) Rules, 1961, in respect of Articles of Charge-V, and Rule 3 (1) (iii) of the CCS (Conduct) Rules, 1964, as well as 7 (1) and (2) of the IFS (Conduct and Discipline) Rules, 1961, in respect of Articles of Charge-VI, only Rule 3 (1) (iii) of the CCS (Conduct) Rules, 1964, in respect of Articles of Charge No. VII, only Rule-15-A(2) of the CCS (Conduct) Rules, 1964, in respect of Article of Charge No. VIII, and only Rule-17 (i) of the IFS (Conduct & Discipline) Rules, 1961, in respect of Article of Charge No. IX.
103. Therefore, before we proceed ahead with the examination of the applicants case, and our findings on the submissions and counter submissions, we have to first make a note regarding the inter play of the two sets of Rules, the CCS (Conduct) Rules, 1964 and the IFS (Conduct & Discipline) Rules, 1961, to the extent they overlap each other.
104. Both the CCS (Conduct) Rules, 1964, and the IFS (Conduct and Discipline) Rules, 1961, as mentioned above, have been framed in exercise of the powers conferred upon the executive by the proviso to Article 309 of the Constitution, and are in the nature of Subordinate Legislation. The same is true in respect of the CCS (CCA) Rules, 1965, also. However, while there is innumerable case law on the CCS (Conduct) Rules, 1964, and the CCS (CCA) Rules, 1965, we could not search any case law in which the vires of the IFS (Conduct and Discipline) Rules, 1961, have been examined by any High Court, or by the Honble Apex Court. Even in the commentary on the said IFS (Conduct and Discipline) Rules, 1961, available in the Library, the only case law cited is regarding the aggrieved Government servant having an opportunity and recourse to the Courts for redress of any breach of the statutory Rules framed under Article 309, and the transitional provisions contained under Article 313 of the Constitution of India. Rule-2 (h) of these Rules defines that they apply to a person, who is a Government servant, and Rule-2(m) defines that Service means a civil service of the Union. The Rule-3 (b & c) of the IFS (Conduct and Discipline) Rules, 1961, prescribe as follows:-
(b) member of the Service means any officer holding a post borne on the cadre of the service and includes a non-career Head of Mission or post;
(c) Service means the Indian Foreign Service Branch A and Branch B.
105. Rule-4 of the IFS (Conduct and Discipline) Rules, 1961, provides that the provisions of CCS (Conduct) Rules, 1964, shall apply mutatis mutandis to the members of the Service. Chapter II of the IFS (Conduct and Discipline) Rules, 1961, deals with some additional Conduct Rules. Rule-4 (2) (b) of the said Rules prescribes that the provisions of the CCS (Conduct) Rules, 1964, shall apply as if:
(i) for the words the Government or the prescribed authority occurring in that rule, the words the Government or of the Head of Mission or post were substituted;
(ii) the following note was inserted at the end, namely :
Note:- The Head of Mission or Post, as the case may be, shall report all cases arising under this Rule to the Government for such action as the Government may deem fit.
106. Rule-13 of the CCS (Conduct) Rules, 1964 concerning Gifts applies under the 1991 Rules subject to certain qualifications as provided for under Rule-4(2), with which we are not concerned here. Rule-4(2) (d) of the 1991 Rules prescribes that Rule-14 of the CCS (Conduct) Rules, 1964 concerning Public demonstrations in honour of Government servants shall not apply to entertainments given and complimentary or valedictory addresses presented to the members of the IFS in the country in which they are stationed. Rule-4 (2) (e) of the IFS (Conduct and Discipline) Rules, 1961, further prescribes that Rule-18 of the CCS (Conduct) Rules, 1964, regarding movable, immovable and valuable property, shall apply as provided for in the said Rules.
107. Rules 5 & 6 of the IFS (Conduct and Discipline) Rules, 1961, do not have any linkage with the CCS (Conduct) Rules, 1964. In a similar manner Rule-7 of the IFS (Conduct and Discipline) Rules, 1961, also does not have any relationship whatsoever with any Rule in the CCS (Conduct) Rules, 1964, but lays down as follows:-
7. Restriction on certain activity-(1) No member of the Service may at any time, engage in any activity which would in any way tend to impair his usefulness as a member of Service. In any case of doubt, the orders of the Government shall be obtained.
(2) A member of the Service shall be responsible to ensure that his spouse and dependants do not in any way behave or engage in any activity that would embarrass Government or tend to impair his usefulness as a member of the Service.
(Emphasis supplied).
108. Rule-8 of the IFS (Conduct and Discipline) Rules, 1961, deals with Restriction on marriage with Foreigner, Rule-9 deals with Divorce, Rule-10 deals with Employment after retirement, prohibiting acceptance of employment under a foreign Government, Rule-11 deals with the Employment of wife and other dependants while being posted abroad in an Indian Mission or post, Rule-12 deals with immediate dismissal or removal from service on acquisition of foreign nationality by a member of the Service, and Rule-13 is regarding compliance with instructions, Rules and Regulations that may have been or may be issued by the Government from time to time.
109. Chapter-III Rules 14 & 15 of these Rules, 1961, deal with Discipline and Control, and according to the commentary available, it appears that Rule-14 of the said Rules still makes a reference to the erstwhile CCS (CCA) Rules, 1957, though we can assume that the commentary available is old, and Rule-14 would now be providing for mention of the CCS (CCA) Rules, 1965. Rule-15 of the said 1961 Rules lays down the Rule regarding service abroad, and prescribes as follows:-
15 Service abroad-(1) A member of the Service shall be liable, at the discretion of the Government to serve at any place in the world (2) It shall entirely be within the directions of the Government to decide whether any member of the Service shall serve abroad or in India and no member of the Service shall be entitled as of right to a post abroad or in India, as the case may be.
110. Chapter-IV of the IFS (Conduct and Discipline) Rules, 1961, deals with Official Secrets and Custody of Official Documents, Rule-16 deals with Official Secrets, Rule-17 deals with Return of official documents, Rule-18 deals with Improper use of experience of members of Service, Rule-19 deals with Ex-members of the Service, and the last Rule-20 deals with Intimation regarding papers in possession on ceasing to be a member of the Service.
111. Rule-7 of the IFS (Conduct and Discipline) Rules, 1961, in particular, is a Rule which apparently extends its applicability beyond the applicability of the rules as defined in Rule 2 (h), i.e. to the Government servant member of the Service itself, and goes ahead to state in Rule-7(2) that a member of the Service shall be responsible further to ensure that his spouse and dependants (including domestic servants ?!!) also do not in any way behave or engage in any activity that would embarrass Government or tend to impair his usefulness as a member of the Service, which Rule has been used against the applicant before us while framing the Articles of Charge.
112. This Rule is peculiar because it is, prima-facie, entirely and directly in contravention of the Rule 2(h) of the same Rules, 1961. While each and every of the CCS (Conduct) Rules extends its applicability mainly to the Government servant concerned, and defines the members of family in relation to a Government servant under Rule-2(c) of the CCS (Conduct) Rules, 1964, in respect of the following:-
(c) Members of family in relation to a Government servant includes-
(i) the wife or husband, as the case may be, of the Government servant, whether residing with the Government servant or not but does not include a wife or husband, as the case may be, separated from the Government servant by a decree or order of a competent Court;
(ii) son or daughter or stepson or stepdaughter of the Government servant and wholly dependent on him, but does not include a child or stepchild who is no longer in any way dependent on the Government servant or of whose custody the Government servant has been deprived by or under any law;
(iii) any other person related, whether by blood or marriage, or the Government servant or to the Government servants wife or husband and wholly dependent on the Government servant.
113. But Rule-7 (2), of the 1961 Rules, which has been used to frame Articles of Charge against the applicant the provisions of the IFS (Conduct and Discipline) Rules, 1961, appear to be much more onerous than that prescribed under the CCS (Conduct) Rules, 1964, in respect of the members of the family of the Government servant as discussed above. Rule-7(2) of the said 1961 Rules puts the onus and responsibility upon the member of the IFS service to ensure that his spouse and dependants (and even the servants taken along by them from India) do not in any way behave or engage in any activity that would embarrass Government of India, no parallel of which provision has to be found in the CCS (Conduct) Rules, 1964. It is also apparent that this Rule has been drafted so loosely, that it leaves a discretion very wide, and only recently we saw that a Lady IFS Officer, whose maid servant taken along by her from India had indulged in questionable behaviour in the U.S.A., but rather than punishing that Officer under this Rule 7(2) of the 1961 Rules, she was provided the cover and protection of the immunity available to a U.N. Employee, and was post-haste brought back to India. Distinction is anathema to any subordinate legislation, Rule, or Legislation.
114. The issue as to whether the Government servants Conduct Rules violate their personal Fundamental Rights guaranteed under the Constitution had been raised soon after independence, and promulgation of the Constitution itself. This issue was examined and led to the Govt. of India, Ministry of Home Affairs Letter No.141/51-Ests., dated 11.08.1952 stating as follows:-
(3) Provisions in the Government Servants Conduct Rules do not violate fundamental rights guaranteed under the Constitution- A question was raised on the subject and the Government of India have been advised as follows:
It is necessary to emphasize that the relationship between the Government and a civil servant rests on contractual basis. In some cases the contract is evidenced by a formal document, but even where there is no formal document executed, there is nonetheless a contract implied by the conduct of the parties. The provision of the Constitution, and the various Rules (as residuary power of the Government to alter those rules) together comprise the terms and conditions of that contract of service, and define the rights, duties and obligations of the Government on the one hand and the civil servant on the other. A person who voluntarily enters Government service, therefore, accepts these rules and conditions voluntarily in his own interest. The Government Servants Conduct Rules, moreover, have reference exclusively to the duration of this contract. Any breach of these rules is punishable at worst by his own removal from service. The restrictions imposed by the rules are not in truth and substance imposed upon him externally, but he accepts and abides by them voluntarily in his own interest. The operation of these rules therefore cannot be said to be an invasion of any Fundamental Rights. If the civil servant does not exercise his Fundamental Rights to the fullest, he does so merely because he considers it in his interest not to do so. But it is open to him at any time to exercise his Fundamental Rights to insist that he should be Government service and that he should have the benefit of all the rights and privilege of the contract of service, if, on his own part, he does not abide by his own obligations and duties arising from that very contract.
In the contrary view, every contract of service would necessarily involve the invasion of the Fundamental Rights of the civil servant and other employees in many ways. For instance, the contract of service of a civil servant (as indeed of any other employees) requires him to devote his time and energy to the discharge of his official functions, and so precludes him from engaging himself in the any other trade of profession, it likewise requires his presence at his place of duty for specified periods and so precludes him from going to other places during those periods and by analogy of the arguments advanced by the Government of Assam and Orissa every such contract of service would involve invasion of the Fundamental Rights of the employee under sub-clauses (g) and (d) of Clause (I) of Article 19. The view suggested by these Governments would lead to the conclusion that Article 19 would have effect to invalidate every contract of employment under Government, or public authority, etc. A view leading to such absurd results, cannot be sustained.
2. The Government of India are further advised that this position is not affected by the presence, in Part-III of Article 33 which expressly authorized Parliament by law to restrict or abrogate any of the armed forces, etc. The inclusion of that Article was necessary because maintenance of discipline among members of these services necessarily and frequently required action in contravention of certain provisions of Part-III of the Constitution for instance, detention otherwise than in accordance with Article 21, and the liability to be tried and punished by Court martial as well as by ordinary Courts.
3. The Government of India are accordingly of the opinion that the provisions in the Conduct Rules which place any restrictions on the freedom of speech and expression of Government servants and on their right to form associations are not inconsistent with the provisions of the Constitution. It may also be stated in this connection that even in the USA, civil servants are prohibited from taking part in politics and it has never been suggested that this prohibition involves any encroachment on any Fundamental Rights.
115. Thus, it is seen that as long back as in 1952, the provisions in the Conduct Rules which place any restrictions on the freedom of speech and expression of a Government servants were not found to be inconsistent with the provisions of the Constitution. However, this opinion does not state anything about the spouse and the dependants of the Government servants, and their servants !!
116. Among the constitutional experts in India, and from the innumerable judgments of the Honble High Courts in the country, and of the Honble Apex Court, it is clear that the freedom of speech enshrined in the Constitution of India is in its operability, scope, reach, and practice much more wide than even that available to the American citizens under the 4th amendment of the Constitution of the United States of America, and even to the Soap-Box orators of the Hyde Park in London, under the unwritten Constitution but common law practice of the United Kingdom. Within India, in respect of any of the civil services, or any Government servant of Centre or States, while restrictions and fetters have been put by the All India Services (Conduct) Rules and the CCS (Conduct) Rules upon the Government servants themselves, as has been mentioned above, very few shackles bind the spouse and the dependants (and the servants!!) of the Government servants of the Union and the States under the relevant Conduct Rules. Also, no portion of the CCS (CCA) Rules, 1965, or the All India Services CCS (CCA) Rules, 1965, or any of the parallel Rules of any State Government, can ever be applied to punish the spouse and the family members of the Government servant, for any act done by them on their own accord, or any statements made or Articles or Books written by them on their own accord!!
117. If we borrow the concepts of the criminal proceedings here, Section-124A of the Indian Penal Code (IPC, in short) defines Sedition as doing of certain acts, which would bring the Government established by Law in India into hatred or contempt, or create disaffection against it, as has been held by the Honble Apex Court in Bilal Ahmed Kaloo vs. State of Andhra Pradesh (1997) Supreme Today 127. The Section concerned provides for as follows:-
[124A. Sedition.Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, 102 [***] the Government estab-lished by law in 103 [India], [***] shall be punished with 104 [im-prisonment for life], to which fine may be added, or with impris-onment which may extend to three years, to which fine may be added, or with fine.
Explanation 1.The expression disaffection includes disloyalty and all feelings of enmity.
Explanation 2.Comments expressing disapprobation of the meas-ures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3.Comments expressing disapprobation of the admin-istrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.]
118. But, at the same time, Sections 3 & 4 of the IPC, 1860 prescribe as follows:-
3. Punishment of offences committed beyond, but which by law may be tried within India-Any person liable, by any [Indian law] to be tried for an offence committed beyond India shall be dealt with according to the provisions of this code for any act committed beyond India in the same manner as if such act had been committed within [India].
[ 4 Extension of Code to extra-territorial offences. The provisions of this Code apply also to any offence committed by [(1) any citizen of India in any place without and beyond India;
(2) any person on any ship or aircraft registered in India wher-ever it may be;] [(3) any person in any place without and beyond India committing offence targeting a computer resource located in India.] [Explanation:- In this section-
(a) the word offence includes every act committed outside India which if committed in India, would be punishable under this Code;
(b) the expression computer resource shall have the meaning assigned to it in clause (k) of sub-section (1) of section 2 of the Information Technology Act, 2000] (Emphasis supplied).
119. Therefore, it is clear that something would become an offence under the IPC when committed outside India, which, if committed in India, shall be punishable under this Code. To the best of our understanding, criticism of the Govt. of India by the spouse of a Government servant cannot be an offence, whether committed in India or abroad. This is a part of the freedom of speech of the spouse, which still remains unfettered by the Government Rules.
120. Some very prominent cases come to our mind. When one Admiral, who was the Chief of the Naval Staff, was summarily removed from service by the Govt. of India of the day, his wife, who is a practicing eminent lawyer, filed numerous plaints and affidavits in various Courts up to the Honble Apex Court, chastising and criticizing the Government of the day in choicest of words. She was not behaving or engaging in any activity that did or did not embarrass the Government of the day, or was she within her rights as an individual to rake up the concerned issues, and speak under the Fundamental Rights guaranteed to her by the Constitution of India, has to be considered.
121. There have also been numerous cases of spouses of the Government servants, who were not members of the Indian Foreign Service, having made numerous allegations in affidavits filed in foreign Courts, particularly in the Courts in the United States, which come to ones mind. In a few specific cases, in which allegations of physical abuse and torture on the soil of the foreign country had been alleged against the Government servant concerned, but the protection provided to the Government servant concerned by his superiors and by the Government had been criticized by the spouse in affidavit filed in a U.S. Court. In that case, the Government of India did not feel embarrassed, in order to bring it under a case parallel to that may be covered under Rule-7(2) of the IFS (Conduct and Discipline) Rules, 1961, and even when the concerned U.S. Court had accepted those submissions of the spouse of the concerned Government servant, and had granted her a divorce in the U.S.A., but no action could lie, and was not taken against the concerned Government servant, and he ultimately returned to India to serve in the Government of India at Delhi after his divorce granted in USA. In that case, after obtaining divorce from the officer concerned from USA Courts, his erstwhile wife had applied for a local residency permit, and had stayed back in the United States. The officer concerned was not prosecuted, and no disciplinary action had been taken against the officer concerned in respect of any statements on oath or an affidavit made by his wife before the U.S. Courts, or for the reason that he had obtained the divorce from her, or for her acquisition of permanent stay in the USA, and he rose to become the Finance Secretary of the Govt. of India without any blemish on his service record.
122. Further, the spouse of senior lady IFS Officer is a renowned Academician, thinker and expert on National Security and International relations, and has been a career correspondent and author of numerous articles and books in various Newspapers, and Magazines, criticizing the current policies of the Union of India in regard to security, defence and foreign relation matters. Even though her spouse, who is a very respected member of the Fourth Estate, and a respected expert of a think-tank, and most often criticizes the Government, could that IFS Officer be proceeded against under Rule-7(2) of the IFS (Conduct and Discipline) Rules, 1961, in respect of the constructive but critical articles and books penned by her spouse, by stating that she was responsible to ensure that her spouse should not behave or engage in any activity that would embarrass the Government? Numerous such cases can be cited.
123. In the instant case, charges had been framed against the applicant not only in respect of the utterances of the applicant himself, but also the statements and utterances of his anguished wife, which had appeared in the New Zealand Press, under Rule-7(2) of the IFS (Conduct and Discipline) Rules, 1961. Even after a careful perusal of all those utterances and statements of the wife of the applicant, as have been brought on record by the Respondents, we are not convinced that they can come within the definition of Section 124A read with Sections 3 & 4 of the IPC as reproduced above. If she had made the same statements against the same Govt. of India of the day within India, at best Civil and Criminal proceedings could have been initiated against her for defamation by those individual persons, who had been individually named by her in such utterances and statements, but she certainly could not have been prosecuted on the charge of sedition against the Govt. of India of the day, under Section 124A of IPC, and would have been protected by the freedom of speech enshrined in the Constitution.
124. Such being the case, when her statements and utterances could not have constituted an offence, if made within India, by virtue of Sections 3&4 of the IPC 1960, they certainly cannot constitute an offence of sedition against the Govt. of India, even if made in New Zealand, and if she was at liberty to criticize the actions of certain officers of the Govt. of India, as any Indian citizen can do, either within India or abroad, the respondents were totally at fault in including her utterances and statements while framing the Articles of Charge No.IV against the applicant, by taking recourse to Rule-7 (2) of the IFS (Conduct and Discipline) Rules, 1961.
125. In the instant case, the applicant has not challenged the vires of the IFS (Conduct and Discipline) Rules, 1961, as we have already mentioned above. However, it is clear to our mind, which we may state, not as a ratio emanating from the case, since the issue has not been raised by the applicant against it, but by way of an obiter dicta, that prima-facie the said Rule-7(2) is illegal and unconstitutional, and against the freedom of speech enshrined in the Constitution, which ought to be made available to the spouse and the dependants (and servants?!!) of the members of the Indian Foreign Service, even though they themselves are deprived of such freedom under CCS (Conduct) Rules, 1964, and the Govt. of India letter dated 11.08.1952 reproduced by us above.
126. Though Courts and Tribunals are not expected or required to enter into a re-appreciation of the evidence brought on record in a disciplinary enquiry, in exceptional cases like the present one we cannot but look into some facts. Article of Charge-I as raised against the applicant cannot be faulted. The officers concerned are expected to adhere to the date of their return to India after their posting abroad is over, and if a date has been set by the applicant himself, and intimated to the Hqrs at Delhi, he ought to have handed over the charge of HCI to New Zealand on that date properly, and adhered to the date of his return. However, the applicant has very zealously pointed out that he could not return on the date as set by him because the only travel document available to him, his Diplomatic Passport, had been revoked, and Govt. of India had failed to supply any alternative personal Passport to him. But, we find no mention of such lack of travel documents having played a part in the delay in the return of the applicant to India in either the Charges as framed against him, or the Enquiry Officers Report, or in the impugned orders.
127. Article of Charge-II had been framed against the applicant on the ground that following the withdrawal of his accreditation as HCI to New Zealand on 18.04.2006, from the very next day on 19.04.2006, for the period of two months till 17.04.2006, he remained on unauthorized absence with his whereabouts not known. However, from the Statement of imputations of misconduct or misbehaviour in respect of the Article of Charge No.II, as annexed in Para-4 it has been mentioned that one Shri Titus Dayaker, PA, had in the forenoon of 19.04.2006 carried the communication dated 18.04.2006 to the residence of the applicant, and the applicant had read the letter but refused to sign on the same. If he was very much available, and present in the residence of the HCI to New Zealand on 19.04.2006, and upto 25.04.2006, as per the Article of Charge No.VIII, stating that he was unauthorizedly absent with whereabouts not being known from 19.04.2006 onwards falls flat, as he was very much available and accessible to the officials of the Embassy, and was living in the designated residence of HCI at least for one week, till 25.04.2006..
128. Para-5 of the same communication further states that on 22.04.2006, the Acting HCI had further informed the applicant that International Air tickets in respect pf him, his wife and his domestic assistant had already been provided by the Mission, were in his possession, and he was further informed that he, his wife and his domestic assistant were also in possession of valid passports, and he was advised to return to India immediately, along with his wife and domestic assistant. The paragraph says that this communication dated 22.04.2006 was also taken to the residence of the High Commissioner by the same person Shri Titus Dayaker in the forenoon of 19.04.2006, and the applicant read the communication but refused to sign. We fail to understand as to how a communication dated 22.04.2006 could have been carried to the applicant in the forenoon of 19.04.2006, even before it was issued!!! Secondly it establishes further that the applicant was not absconding, or unauthorizedly absent, and was very much available in the residence of the HCI to New Zealand at Wellington itself even till 22.04.2006 at least. Therefore, the charge as levied under Article-II that the applicant had remained unauthorizedly absent with his whereabouts not known from 19.04.2006 to 17.06.2006 could not have been levelled against the applicant, as after his accreditation as HCI to New Zealand was withdrawn on 18.04.2006, he obviously could not have packed up and wrapped up in advance, or travelled the very next day, without being provided reasonable period of time to pack up his belongings, and wrap up his stay as HCI there. Therefore, Article of Charge No.II was itself faulty and defective.
129. Article of Charge No.III had stated that the applicant had levelled unsubstantiated and completely baseless charges against an officer senior to him, though in the same and equivalent rank as Secretary to Govt. of India, and he had unnecessarily e-mailed the same to all Heads of Missions or Heads of Posts or Indian Missions/Posts abroad, which certainly was an unwarranted act on behalf of the applicant, and, by this act, the applicant had violated Rule 3(1) (iii) of the CCS (Conduct) Rules, 1964, by doing an act unbecoming of a Government servant, and Rule-11 of the CCS (Conduct) Rules, 1964, which, with effect from 22.10.2005, stands amended to state as follows:-
[11. Communication of Official Information.-
Every Government servant shall, in performance of his duties in good faith, communicate information to a person in accordance with the Right to Information Act, 2005 (22 of 2005) and the rules made thereunder :
Provided that no Government servant shall, except in accordance with any general or special order of the Government or in performance in good faith of the duties assigned to him, communicate, directly or indirectly, any official document or any part thereof or classified information to any Government servant or any other person to whom he is not authorized to communicate such document or classified information]."
130. But for HCI at New Zealand, whose Disciplinary Authority is only the President of India, and under the delegated powers of the President, the Honble Minister for External Affairs, under entry-12 of Part-I of the Central Civil Services Group A of the Schedule to the CCS (CCA) Rules, 1965, the incumbent Officer posted as the Foreign Secretary certainly was at no stage his Disciplinary Authority as per Rule-12 (2) of the CCS (CCA) Rules, 1965, which states as follows:-
12. Disciplinary Authorities (1) The President may impose any of the penalties specified in Rule 11 on any Government servant.
(2) Without prejudice to the provisions of sub-rule (1), but subject to the provisions of sub-rule (4), any of the penalties specified in Rule 11 may be imposed on-
(a) a member of a Central Civil Service other than the General Central Service, by the Appointing Authority or the authority specified in the schedule in this behalf or by any other authority empowered in this behalf by a general or special order of the President;
(b) a person appointed to a Central Civil Post included in the General Central Service, by the authority specified in this behalf by a general or special order of the President or, where no such order has been made, by the Appointing Authority or the authority specified in the Schedule in his behalf.
(3 & 4) xxxxxxx (Not reproduced here).
131. The respondents have nowhere produced any documentary evidence to show that these Articles of Charges, and the Statement of imputations of misconduct or misbehaviour in support of those Articles of Charges against the applicant, sent to him through the Memorandum dated 21.07.2006, signed by Shri L.D. Ralte, Joint Secretary (CNV) & Chief Vigilance Officer, had ever been approved by the Honble Minister for External Affairs, acting as his Disciplinary Authority for and on behalf of the President of India, under the delegated powers of the President in this behalf. The Vigilance Unit of the Ministry, or the Joint Secretary (CNV) & Chief Vigilance Officer was certainly not at all competent either to frame any of the Articles of the Charge, or even sign such a communication levelling Charges against the applicant, and more particularly Article of Charge No.III, in which the applicant was stated to have levelled unsubstantiated and completely baseless charges against the incumbent Officer then posted as the Foreign Secretary, who was his Senior Officer, but in the equivalent grade. The application of mind on the part of the Honble Minister for External Affairs, acting for and on behalf of the President of India, was even more essential when the mutual conduct and behaviour towards each other of the two senior officers of equivalent seniority was involved. The respondents have nowhere brought on record that the then Honble Minister for External Affairs had ever weighed the accusations levelled by the two officers against each other.
132. In respect of Articles of Charge No. IV, the statement of imputations of misconduct or misbehaviour states in Para-8 as already reproduced earlier. As we have discussed above, and have expressed our reservations and doubts about the very constitutionality of Rule-7 (2) of the IFS (Conduct & Discipline) Rules, 1961, it does not appear logical and legally tenable that the applicant could have been charged and held guilty for the actions of his wife, as has been done in respect of the Article of Charge No. IV, which has been held by the Enquiry Officer to be proved against him. The lady has been proved guilty without there having been an opportunity for her to even explain as to what she had said.
133. The respondents had in this case acted very harshly against the applicant. It has not been denied by the respondents that his Diplomatic Passport was revoked, and the Visa granted by the Government of New Zealand thus revoked, before whom he had earlier presented his credentials and accreditation as the official representative of the Union of India, and the President of India, which suddenly stood cancelled. But even the respondents have no where denied that while cancelling his Diplomatic Passport, they had not simultaneously provided him with an alternative travel document, or document of identification or nationality. Thus, undeniably, a person, who till a day back was the accredited High Commissioner of India, and represented the President of India and the Union of India, was suddenly left to become a homeless and stateless person, without any travel documents of his motherland. The Honble Apex Court had in the case of Maneka Gandhi vs. Union of India 1978 AIR 597, 1978 SCR (2) 621, held that the right to hold a Passport is one of the Fundamental Rights of a citizen of India. When once the Diplomatic Passport of the applicant had been revoked, an alternative Private Passport ought to have been necessarily supplied to him, or even any other documents having the same legal effect as a Personal Passport, so that he could not be suddenly reduced to the status of a stateless person, or an alien in New Zealand, because of which the concerned agency of the New Zealand Government had to inform in writing that he should obtain appropriate travel and identification documents within 42 days, failing which he will be evicted forcefully from the territory of the New Zealand. This only shows the ham handedness and cussedness of the Officers who dealt with his case at Delhi.
134. After having reduced an accredited High Commissioner to a stateless person, without any passport or travel documents in his hand, it does not lie for the Union of India and the respondents to have framed an Article of Charge when the applicant sought to obtain a stay visa for himself and his wife from the Government of New Zealand, at least to come out of the clutches of the Show Cause Notice issued to him by the New Zealand authorities, for obtaining relevant travel documents within 42 days, or be evicted forcefully from New Zealand. Strangely Article-V of the Articles of Charges framed against the applicant states that by seeking to obtain and attain a legality of his stay within New Zealand, by his trying to obtain a stay visa for himself and his wife, the applicant had not only violated Rule-3 (1) (iii) of CCS (Conduct) Rules, 1964, but that he had also violated Rule 7(1) and 7(2) of the IFS (Conduct & Discipline) Rules, 1961, as well as Rules 12(2) and (3) of the same Rules, which provide that no member of the Service shall apply for foreign nationality or an immigrant visa of a foreign country or otherwise seek emigration and further that no member of Service shall permit his spouse or dependents to apply for foreign nationality or an immigrant visa of a foreign country or otherwise seek emigration without the prior permission of the Government. The IFS (Conduct & Discipline) Rules, 1961, on which we have been able to lay our hands, does not have any Sub-Rule (2) & Sub-Rule (3) of Rule-12, and only states as follows:-
12. Acquisition of foreign nationality- The acquisition of foreign nationality by a member of the Service shall render him or her liable to immediate dismissal or removal from service.
135. Even the respondents also failed to file a copy of any amendment of these Rules, through which Sub-Rule-(2) & Sub-Rule-(3) may have been added below Rule-12 of the said Rules, as cited above.
136. Article of Charge No. VI again relies on the Rule-7 (1) and 7 (2) of the IFS (Conduct & Discipline) Rules, 1961, along with Rule-3 (1) (iii) of the CCS (Conduct) Rules, 1964, but once again includes statements made by the applicants wife, but the statement of imputations of misconduct or misbehaviour in support of Articles of Charge states in Para-10 as follows:-
ARTICLE VI
10. Shri Harish Kumar Dogra caused embarrassment to the Government of India in a foreign country by refusing to leave New Zealand after his accreditation as High Commissioner of India to that country was withdrawn as also as a result of statements by Shri Dogra and Smt. Dogra to the effect that their lives would be in danger in the event of their return to India. In her comments to the media on the issue, the New Zealand Prime Minister clearly stated that Shri Dogras diplomatic status having been revoked, he was expected to make arrangements to leave New Zealand. However, Shri Dogra failed to pay heed even to this advice from the Prime Minister of the country where he had been High Commissioner. The Dogras also continued to stay in New Zealand despite their stay having become unlawful w.e.f. May 6, 2006. Press reports quoted Smt. Dogra as saying that their (the Dogras) lives would be in danger if they returned to India. In a meeting on 24.4.06, Mr. Nigel Moore, Director of the South and Southeast Asia Division of the New Zealand Foreign Office informed Shri Biren Nanda, JS (South) that when Shri and Smt. Dogra had visited the Immigration Office in Wellington earlier that day, Shri Dogra had told the Immigration authorities that his work in New Zealand dealt with certain security issues that would put his life in danger if he were to return to India.
137. While the applicant can certainly be held guilty in respect of his utterances under the CCS (Conduct) Rules, 1964, but since the very legality and constitutionality of Rule-7 (2) of the IFS (Conduct & Discipline) Rules, 1961, is itself doubtful, the conduct of his wife could not and ought not to have been included while framing the Article of Charge No. VI against the applicant.
138. Article of Charge No. VII & VIII related to conduct unbecoming of a Government servant, and thereby violating Rule-3 (1) (iii) of the CCS (Conduct) Rules, 1964. Article-VII relates to unauthorized occupation by the applicant of the residence of the HCI for 7 days from 19.04.2006 to 25.04.2006. This Article of Charge No. VIII is also quite perplexing, as a person, who was in fully authorized occupation of the HCIs official residence till the midnight of 18.04.2006, was certainly entitled to at least one weeks time to pack-up his belongings, if not one months time, as is allowed under the General Pool Residential Accommodation Rule in respect of officers within India by the Directorate of Estates and the CPWD. Therefore, we are of the firm view that the applicant could not have been charged for having taken 7 days time from 19.04.2006 to 25.04.2006 to vacate the designated quarters of the HCI, when suddenly on 18.04.2006 the couple had been told that their right for entitlement to stay in that house, where they had been lawfully staying for one and a half years in the past, had been suddenly withdrawn by the Government.
139. The Article of Charge No. VIII was framed against the applicant under Rule-15-A (2), which deals with subletting Government accommodation, and the concerned Rule states as follows:-
(2) A Government servant shall, after the cancellation of his allotment of Government accommodation vacate the same within the time-limit prescribed by the allotting authority.
140. The imputation of statement of misconduct and misbehaviour in respect of Article of Charge No. VIII, as contained in Para-12, states that the applicant was not entitled to any preparation ( and packing) time after his continued stay in New Zealand had become unauthorized on 18.04.2006, and, therefore, he was asked to vacate the premises of the HCI at the Embassy Residence occupied by him immediately. This charge itself is obviously in violation of Rule-15-A (2) itself of the CCS (Conduct) Rules 1964. Neither the Charge, nor the Statement of imputations of misconduct or misbehaviour, anywhere discloses that the allotting authority had prescribed any time limit for the applicant to vacate the house allotment of which Government accommodation made in favour of the applicant stood cancelled. He and his family obviously could not have woken up on 19.04.2006 morning and just walked out from the Residence, without their being given time to wrap up and pack up their belongings. If the applicant had taken 7 days time for doing so, he certainly could not have been charged for having taken an unduly long time to pack up their belongings, therefore, Articles of Charge No.VIII was also misconstrued and mischieveous.
141. Article of Charge No. IX relates to the applicant having continued to retain his Personal file and Representational Grant file with himself, even after the withdrawal of his accreditation as High Commissioner on 18.04.2006, and having returned those official files to the Consular, who was Head of Chancery in the HCI Mission at Wellington, only on 06.06.2006, and the applicant had been charged to have thus violated Rule-17(i) of the IFS (Conduct & Discipline) Rules, 1961, by doing so. Rule-17 of the IFS (Conduct & Discipline) Rules, 1961 states as follows:-
17. Return of official documents:- (1) Any failure by a member of the Service to return official documents where their retention is not permissible under orders of the Government issued from time to time or in any instance where their return is demanded, is an offence which may render the officer liable to disciplinary proceedings.
Note- Due care shall be taken to ensure that the provisions of all the rules for the custody and handing over of cypher documents are properly observed:
(2) Every member of the Service when handing over charge of his post, shall ensure the handing over of all Top Secret and Confidential papers to his successor or to any other appropriate official, Heads of Mission or Post shall compile a list of all the papers so handed over and/or received and a copy of the list shall be sent to the Government for record, in accordance with Government orders on the subject issued from time to time.
142. In the statement of imputations of misconduct or misbehaviour in support of this Article of Charge, it has been mentioned that the applicant had handed over official papers to Shri T.R. Jatav, Counsellor, on April 14, i.e., four days before his accreditation was withdrawn, but that he returned his Personal file and Representational Grant file to the Consular only on 06.06.2006. A careful perusal of the above cited Rule-17 of the IFS (Conduct & Discipline) Rules, 1961, shows that care has to be taken by the incumbent official to ensure handing over of all Top Secret and Confidential papers, to either his successor in Office, or to any other appropriate official, or to Heads of Mission or Post, and the Head of Chancery, who was much below his level, as long as the applicant was the High Commissioner of India at New Zealand, is certainly not covered under the category of officials to whom the applicant ought to have handed over the documents under Rule-17 (2), as provided for in the Rule itself. Rule-17 (1) prescribes that the Government can issue orders from time to time ordering to a member of the Service to return official documents where their retention is not permissible for him, but the Statement of imputations of misconduct or misbehaviour no where states that such a specific communication had been issued by the Government, directing the applicant to return these two specific important documents also to a much junior officer, the Head of Chancery, without waiting for them to be handed over to his successor in Office, or to any other appropriate official designated or nominated by the Government by a specific order to receive those documents from him. Therefore, it is obvious that Article of Charge No. IX as framed against the applicant was also misconstrued, and could not have been levelled against him.
143. We come to an inescapable conclusion that when most of the Articles of Charges themselves could not have been levelled against him, the Disciplinary Enquiry instituted by the Respondents against the applicant itself was a sham, and an exercise in cussedness and over reach, and over enthusiasm to deliberately punish an officer, who was not liked by the then incumbent Foreign Secretary.
144. The very strange actions of the respondent Govt. of India, in suddenly withdrawing the applicants accreditation, and deliberately relieving and recalling him, without any successor having being named or appointed, and also rendering the applicant to be a virtually stateless person, without any Passport of any type, or any valid travel documents, and making him an alien in a foreign country, where till a day before he was representing the President of India and the Union of India, shows the utter disregard for the reputation of the Govt. of India in the New Zealand in the eyes of the concerned Officers who authorized such actions from New Delhi. Strictly speaking, under IFS (Conduct & Discipline) Rules, 1961, action should have been initiated by the President of India even against those officials sitting in New Delhi also, who had acted in such a pre-judicial & partisan manner that the whole incident become an issue in New Zealand, and brought a bad name for India, when mistakes were committed from both sides, by the applicant, and by the Officers concerned sitting in Delhi, whether or not at the instance of the lower level of employees at the HCI at Wellington, as has been alleged by the applicant in great detail in his OA. In order to be fair to both the sides, it was imperative for the President of India, or his delegate, the Honble Minister for External Affairs, to have enquired into the circumstances, which had forced the then incumbent Foreign Secretary to initiate such precipitate actions against the applicant. As is apparent from the voluminous pleadings filed before us, no such action has been initiated or taken against any of the incumbent officers posted at Delhi, who had contributed to the reputation of the country coming into disrepute in New Zealand in the process of the whole incident concerning the applicant.
145. Undeniably the applicant was at fault in respect of many of his actions, as in the conclusions which have been arrived at by the Honble Delhi High Court while disposing of one of the Writ Petitions pending before it, after perusing the concerned file, which had already been cited by us earlier. The decision of the respondents for recall of the applicant was fully justified. The Honble Delhi High Courts judgment also discloses that perhaps there was sufficient material for the respondents to proceed in departmental proceedings against the applicant. We are in respectful agreement with that.
146. However, in view of the detailed discussion above, the following points emerge on the basis of which we have to arrive at our findings:-
i) That the then Foreign Secretary had taken it upon himself to function as the Disciplinary Authority of the applicant, which he was not, though he certainly was the authority for initiating the ACR of the applicant, as his senior in the same rank.
ii) That the Articles of Charges themselves had not been framed properly, as has been discussed in detail above.
iii) That though we have not been called upon to pronounce upon the legality and constitutionality of IFS (Conduct & Appeal) Rules, 1961, by the applicant in the instant case, but our discussion as above discloses that prima-facie there are serious doubts about the very legality and constitutionality of some portions of those Rules, especially Rule-7(2) in particular.
iv) That the Enquiry Officer does not seem to have been absolutely fair in the conduct of the disciplinary enquiry, as is expected of a quasi-judicial authority, though some of the mistakes committed by him may have partly been due to the fact that he was conducting a disciplinary enquiry for the first time. But that cannot save the enquiry process from having been vitiated.
v) That the Vigilance Section and the Chief Vigilance Officer of the Ministry of External Affairs had been allowed to unduly unfair in the whole process of conduct of disciplinary enquiry against the applicant, while only four minds can go into the conduct of a delinquent Government official in respect of the Articles of Charges framed against him, the minds of the Enquiry officer appointed for conduct of the disciplinary enquiry, that of the Disciplinary Authority, that of the Appellate Authority, and that of the Review/Revisional Authority, if there is a provision for such a review/revision in the concerned Rules. The Vigilance Section can have no role in either initiating or conduct of any disciplinary enquiry, as had been held by the Jodhpur Bench judgment in Prem Prakash vs. Union of India (supra), and the Vigilance Section ought to be kept separate and at an arms length distance from the functioning of and dealing of the Enquiry officer, the Disciplinary Authority and the Appellate Authority etc. with the delinquent Government official, which has not happened in the instant case.
vi) There is merit in the contention of the applicant that the respondents have imposed multiple penalties/punishments upon him, as his dismissal from service just two months ahead of his date of superannuation was itself a major penalty, as provided under the CCS (CCA) Rules, 1965, and, therefore, the penalty of 1/3rd cut in pension and gratuity on permanent basis as had been ordered in the case of the applicant, was beyond the pale of law.
147. However, the misdemeanors of the applicant also ought not to go unpunished. When once the Honble Delhi High Court had come to a conclusion that there was sufficient material for the recall of the officer concerned, it had to be weighed by his Disciplinary Authority, i.e., the Honble Minister for External Affairs, to see as to whether that material, and the subsequent conduct of the applicant after his recall, warranted any action against him, after discounting for the aberrations and over zealousness on the part of certain officials based at Delhi, and at Wellington, in hounding and persecuting the applicant to the extent of rendering him a stateless and alien person in a foreign country all of a sudden, which led to his humiliation in a Country where he was the accredited representative of the President of India and the Union of India till a few days back.
148. Therefore the entire disciplinary proceedings, and the impugned orders passed against the applicant are set aside, and the respondents are directed to pay to the applicant his salary till the date of his superannuation (i.e. the two months period), and restore the applicants pension and gratuity to the full amount, and pay interest at the GPF rate of interest, as applicable from time to time, for the delayed payment of such pension and gratuity, which had been withheld so far. They have since paid him the Leave Encashment, but not the interest amount, which also must be paid at the GPF rate of interest.
149. However, in respect of the misdemeanors of the applicant, which may merit a disciplinary enquiry to be properly instituted against him, the respondents would still be at liberty to take action against him as per the provisions of Rule-9 of the CCS (Pension) Rules, 1972, afresh. This shall be done within a period of six months.
150. In view of the aforesaid discussions and directions, the OA is allowed, but there shall be no order as to costs.
(V. Ajay Kumar) (Sudhir Kumar) Member (J) Member (A) cc.