Central Administrative Tribunal - Delhi
Chinthapali Rajsekhar vs M/O External Affairs on 2 December, 2020
1 (O.A.3421 of 2019)
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.3421/2019
Date of C.A.V. : 22.10.2020
Date of pronouncement : 02.12.2020
Through video conferencing
Hon'ble Mr. Justice L. Narasimha Reddy, Chairman
Hon'ble Mrs.Aradhana Johri, Member (A)
Chintapally Rajasekhar (Aged about 55 years),
S/o Late Shri Radha Krishna Murthy
R/o IFS Villas, Pocket 6
Greater Noida, Uttar Pradesh - 201 310.
Premanent Address - Mungode
Nalgonda District
Telangana - 508 244
Working As Join Secretary
Ministry of External Affairs,
Government of India,
Mob : 9871690596 ... Applicant
(By Advocate : Shri Nalin Kohli for Shri G.D.Chawla)
Versus
1. Union of India,
Through Foreign Secretary
Ministry of External Affairs
South Block, New Delhi
2. Chief Vigilance Officer
Vigilance Unit
Ministry of External Affairs
South Block, New Delhi ... Respondents
(By Advocate : Shri H.K.Gangwani)
2 (O.A.3421 of 2019)
ORDER
Justice L.Narasimha Reddy, Chairman :
The applicant is an officer of Indian Foreign Service of 1990 batch. He earned various promotions up to the level of Joint Secretary in the Ministry of External Affairs. He was issued a charge memo dated 23.02.2017 alleging that he had a child through a woman, whom he did not legally marry, that he obtained a birth certificate fraudulently from Nagarapalika Parishad Chandpur, Bijnor, UP in respect of the child and a passport on the basis of the same. He was also placed under suspension, but was reinstated after sometime.
2. The applicant submitted his explanation to the charge memo. According to him he had a child through an woman by name Ms.Ganchimeg Gombosuren, a Mangolian national through an arrangement of surrogacy and that he did not have any illicit relation with her. He further pleaded that though he had a birth certificate for the child, from a place in the United States of America, it became necessary to obtain a birth certificate from an authority of India, in the context of obtaining of a passport to 3 (O.A.3421 of 2019) such a surrogate child, and that the same was presented for obtaining passport. He submitted that none of the authorities, who issued the certificates have ever stated that any misrepresentation was made or fraud was played and that the charges framed against him are without any basis. He further pleaded that the entire episode is the result of an anonymous letter addressed by an employee in a Foreign Embassy, and who was dismissed for acts of misconduct, and that at the very initiation of the proceedings against him was without any legal or factual basis.
3. After conducting the departmental inquiry, the Disciplinary Authority (DA) imposed the penalty of reduction to the next lower post for a period of two years, which shall be a bar for promotion of the applicant during such period with a further direction that on promotion on the expiry of the period of two years, the reduction to the lower post shall not operate to postpone the future increments of pay and that he shall regain his original seniority in the next higher post.
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4. This OA is filed with a prayer to declare the entire disciplinary proceedings as illegal and violative of CCS (CCA) Rules and to quash the charge memo dated 23.02.2017 and the order of punishment dated 31.07.2019. He has also prayed for consideration of his case for promotion, by opening the sealed cover and to extend the consequential benefits. As an alternative prayer, he wanted the extension of the benefit of the judgement dated 22.03.2018 in OA.30/2018 filed by MS. Devyani Khobragade.
5. The applicant contends that he had unblemished service, spread over several decades and that the impugned charge memo was issued on the basis of an anonymous letter submitted by an indiscipline employee in the Foreign Embassy. He contends that as a matter of policy, disciplinary proceedings are not initiated on the basis of anonymous letters and contrary to that, disciplinary proceedings were initiated in his case, with the sole objective of denying him the promotions, which became due at the relevant point of time. He contends that the child was born out of surrogacy which was very much permissible in the USA at that time and no one connected with that expressed any 5 (O.A.3421 of 2019) grievance, much less submitted any complaint. The applicant further contends that the birth certificate of the child was obtained on 11.05.2008 from the State of Illinois, USA and since it would be difficult to get a passport for the child on the basis of such certificate, he approached the Nagarpalika Panchayat, Chandpur of UP State and a certificate was issued on 25.05.2005. He contends that it is a misnomer to call the birth certificate as a fraudulent one, since there is not even a remote allegation in that behalf. It is also his case that he never had any relation outside his marriage and the inquiry officer submitted his report, just on the basis of the imagination.
6. The applicant further contends that in the course of tendering its opinion, the UPSC has travelled beyond the scope of the actual charges and has even omitted to take into account, the manner in which the proceedings have originated. The applicant pleads that the DA was very much convinced that a matter which is completely in the realm of the personal life of the applicant and, totally unconnected with the official duties should not damage his (the applicant's) career and accordingly added certain softening clauses in the order of punishment, and it only 6 (O.A.3421 of 2019) shows the lack of gravity in the entire issue. Various other contentions are also urged.
7. The respondents submitted a reply running into 52 pages. They narrated the manner in which the proceedings originated and the developments that have taken place till the imposition of punishment. According to them, the acts and omissions on the part of the applicant are serious in nature and all the articles of charge were held proved. It is also stated that the applicant was given full opportunity in the inquiry and a report of the inquiry officer was furnished to him. The respondents contend that the report of the inquiry officer, the reply of the applicant and connected record was forwarded to the UPSC which in turn gave its advice and that the impugned order was passed, duly taking into account, the said advice.
8. The applicant filed a rejoinder to the counter affidavit filed by the respondents denying the contents thereon.
9. Sh. Nalin Kohli, learned counsel for the applicant addressed extensive arguments. He contends that the very initiation of the disciplinary proceedings against the applicant 7 (O.A.3421 of 2019) was without any basis and contrary to law. He submits that the gravity of the entire proceedings was contained in Articles 1 and 2 and once they were not held proved, by the inquiry officer, the UPSC or for that matter, the DA ought not to have taken steps to impose such harsh penalty. He submit that even while admitting that the applicant has impeccable integrity throughout his entire service, the respondents have virtually omitted the same and imposed the punishment in a casual manner. He submits that the indication of the punishment by the UPSC and acceptance of the same by the DA is an exercise which does not accord with the law. He contends that the applicant was deprived of the promotions on account of the initial suspension and the subsequent continuation of the disciplinary proceedings, followed by the punishment.
10. Sh.H.K.Gangwani, learned counsel for the respondents on the other hand submits that the allegations made against the applicant in the charge memo are serious in nature and though Articles 1 and 2 were held not proved, the gravity of the other Articles of charges cannot be underestimated. He submits that the applicant was provided with opportunity at every stage and 8 (O.A.3421 of 2019) all the authorities have examined the matter in an objective manner. Learned counsel submits that being a senior officer in the Indian Foreign Service, the applicant was required to be careful and that no exception can be taken through a punishment imposed the impugned order.
11. The applicant joined the Indian Foreign Service way back in the year 1990. His plea that his entire service is without any blemish till the charge memo is issued, is not contradicted by the respondents. It is stated that the applicant was working as Director General of Indian Council of Cultural Relations from September 2015 onwards. One year thereafter, he was shifted from that post and deployed as Joint Secretary in the Ministry of External Affairs in October 2016. He was placed under suspension through order dated 23.02.2017 and on the same day a memorandum of charge was served upon him. It contained the following Articles of Charge :
Article-I That Shri Chinthapally Rajashekhar, Joint Secretary has a child. Ms. Jaya Gayathri, born from Ms. Ganchimeg Gombosuren, a Mangolian national, with whom he is not legally wedded.
By the above mentioned act, the said Shri Chithapally Rajashekhar, Joint Secretary, has acted in a manner unbecoming of a Government servant and failed to maintain high 9 (O.A.3421 of 2019) ethical standards, thereby violating Rules 3 (1) (iii) & (vi) of the CCS (Conduct) Rules 1964.
Article-II That Shri Chinthapally Rajashekhar, Joint Secretary has maintained illicit relations with Ms. Ganchimeg Gombosuren, a Mangolian national, although he is married to Ms. Akhtar Begum.
By the above mentioned act, the said Shri Chinthapally Rajashekhar,Joint Secretary,has acted in a manner unbecoming of a Government servant and failed to maintain high ethical standards, thereby violating Rules 3 (1) (iii) & (vi) of the CCS (Conduct) Rules 1964.
Article-III That Shri Chinthapally Rajashekhar,Joint Secretary, has submitted a birth certificate fraudulently obtained from Nagar Palika Parishad, Chandpur, (Bijnor), U.P. to the Ministry and its offices in respect of his daughter, Ms. Jaya Gayathri.
By the above mentioned act, the said Shri Chinthapally Rajashekhar,Joint Secretary, has shown lack of integrity and failed to maintain high ethical standards and honesty, thereby violating Rules 3 (1) (iii) & (vi) of the CCS (Conduct) Rules 1964.
Article-IV That Shri Chinthapally Rajashekhar,Joint Secretary, has obtained the diplomatic passport for his daughter, Ms. Jaya Gayathri, by suppressing the fact that she was not an Indian Citizen. He has also obtained for her the diplomatic passport as a member of his family although she was not born to his legally wedded wife, Ms. Akhtar Begum, but to Ms. Ganchimeg Gombosuren, who is not, nor has been, his legally wedded wife. These acts were done with the purpose of misusing the privileges associated with a diplomatic passport.
By the above mentioned act, the said Shri Chinthapally Rajashekhar,Joint Secretary, has shown lack of integrity and failed to maintain high ethical standards and honesty, thereby violating Rules 3 (1) (iii), (vi) & (xviii) of the CCS (Conduct) Rules 1964.
Article-V That Shri Chinthapally Rajashekhar,Joint Secretary, has suppressed material facts for obtaining diplomatic passport for his daughter, Ms. Jaya Gayathri, by submitting a fraudulently 10 (O.A.3421 of 2019) obtained birth certificate from Nagar Palika Parishad, Chandpur, (Bijnor), U.P. By the above mentioned act, the said Shri Chinthapally Rajashekhar,Joint Secretary, has shown lack of integrity and failed to maintain high ethical standards and honesty, thereby violating Rules 3 (1) (iii), (vi) & (xviii) of the CCS (Conduct) Rules 1964.
Article-VI That Shri Chinthapally Rajashekhar, Joint Secretary, while applying for an Indian diplomatic passport on 25.09.2007 for his daughter, Ms. Jaya Gayathri, has suppressed fact that she was already in possession of a passport of the United States of America bearing No. 028459978. Sh. Rajashekhar did not inform the Ministry of External Affairs at any point of time that his daughter was in possession of passport of a foreign country and, therefore, acquired foreign nationality.
By the above mentioned act, the said Shri Chinthapally Rajashekhar,Joint Secretary, has shown lack of integrity, failed to maintain high ethical standards and honesty, acted contrary to the provisions under Rule 13 of the Passport Rules, 1980 and Rule 12 of the Indian Foreign Service (Conduct and Discipline) Rules, 1961, thereby violating Rules 3 (1) (iii), (vi) & (xviii) of the CCS (Conduct) Rules 1964.
12. The allegation in Articles 1 and 2 is that he had a child through a woman, whom he did not marry and had illicit relation with such lady though he married a woman by name Aktar Begum. The gist of Articles 3 to 6 is about obtaining of birth certificate and diplomatic passport for the child. It was alleged that the applicant had obtained fraudulent birth certificate and a passport, on the basis of that. The applicant submitted his explanation on 06.04.2017 denying the allegations. A detailed 11 (O.A.3421 of 2019) inquiry was conducted. The inquiry officer submitted a report on 05.04.2018 holding that Articles 1 and 2 are not proved and that Articles 3 to 6 are proved. A copy of the report was furnished to the applicant and he submitted his response to the same on 29.06.2018.
13. As required under law, the DA forwarded the report of the inquiry officer and the statement of response by the applicant to the UPSC, for its advice. The commission in turn tendered its advice on 05.03.2019 recommending the punishment of reduction in rank by one such for a period of three years with an observation that on expiry of two years the applicant would get almost the entire benefits. A copy of the advice tendered by the UPSC has communicated to the applicant and he made his own comments. Taking that into account, the DA passed an order dated 31.07.2019 imposing the punishment, which reads as under :
"In view of the above, the Disciplinary Authority, in agreement with the advice tendered by the UPSC, hereby imposes the major penalty of "reduction to next lower post for a period of 2 years, which shall be a bar to the promotion of the CO during such period of 2 years to the post from which he was reduced, with further direction that on promotion on the expiry of the period of two years, the period of reduction to lower post shall not operate to postpone future increments of his pay, and he shall regain his original seniority in the 12 (O.A.3421 of 2019) higher post, under rules," on Shri Chinthapally Rajasekhar, Joint Secretary."
14. As observed earlier, though six articles of charge were framed, the broad allegations are two in number. The first and second is about the alleged illicit relationship of the applicant with a woman by name Ganchimeg Gombosuren, who is a wedded one and begetting a child through her. The third is about the obtaining a diplomatic passport on the basis of an alleged fraudulent birth certificate. In a way, these allegations are inter-related. Here itself, it needs to be mentioned that the incident took place way back in the year 2005. It is not even alleged that the applicant made secret, of any of his personal matters, to the extent they are needed to be incorporated in the service record. The proceedings were initiated on the basis of a letter said to have been received from one Mr.Rafael Oliva Lerro. This is evident from the very first paragraph of the counter affidavit filed by the respondents. It is also necessary to mention that the said letter was not included in the list of documents though as many as 28 documents were shown in the Annexure. The applicant procured a copy there of and filed the same in the OA. He has also drawn the attention of the Tribunal that the 13 (O.A.3421 of 2019) author of the letter was a highly indiscipline employee and engaged on contractual basis, so much so, that he was discontinued more than once. The plea of the applicant that it is the time tested policy of the Government not to initiate disciplinary proceedings on the basis of the anonymous letters, is completely disregarded in his case.
15. The applicant stated that his mother passed away and it was her wish that a child be begotten and named after her and since his wife was not inclined for that, he took recourse to the surrogacy with the consent of a woman of Mangolian origin. According to him, the birth certificate was issued by an authority at Illinois USA and since the entry therein would not enable him to get the passport for the child in the proper manner, he obtained a birth certificate from the Nagar Palika parishad, Chandpur (Bijnur) UP duly stating all relevant facts. The applicant explained the alleged discrepancy by stating that once the child was born out of surrogacy, certain amount of secrecy was required to be maintained and infact the law permitted of that.
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16. The only witness shown in the Annexure-IV of the charge memo is one Dr.Syeed, Formerly Consulate General of India, Chicago. He was neither the complainant nor the one, at whose instance, the disciplinary proceedings were initiated. The allegation of illicit relationship, the marriage and begetting a child was not proved against the applicant and both the articles of charge were hold not proved. Then remained the charge of the so called fraud made for obtaining birth certificate, etc. Here itself, it needs to be mentioned that the complainant Mr.Rafael Oliva Lerro did not mention anything about the birth certificate or any other material. It is at a later stage, that they were mentioned.
17. In articles 3 and 5, the allegation is about the manner in which the birth certificate was obtained from Nagar Palika Parishad, Chandpur, UP, and the diplomatic passport on the basis of such certificate. In both the charges, the word fraudulently was used. In Article 5, the applicant was alleged to have suppressed the material facts. Articles 4 and 6 are about the obtaining of the diplomatic passport, even while the child was in possession of a passport of USA.
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18. As regards the allegation about fraudulently obtaining the birth certificate from Nagar Palika Parishad, Chandpur, UP, the Inquiry Officer no doubt held that Articles3 and 5 are proved. However, it must be said to the credit of the respondents that in the counter affidavit, they have categorically stated that when contacted, the officials of the Nagar Palika Parishad, UP have stated that their record is clear and perfect in relation to the birth certificate and there are no traces of misrepresentation of fraud in the process. Therefore, the very basis for the allegation ceases to exist.
The relevant paragraphs read as under :
(iv) That Administration Division, vide their note dated January 14, 2016, intimated regarding discrepancies in personal records of the applicant (Annexure R-8). As per Ministry's record, Smt. Begum Akhtar is the spouse of the applicant. She is holding Diplomatic passport No. 1009315 (valid till 25.10.2017). The applicant and Smt. Begum Akhtar are shown as parents of Ms. Jaya Gayathri (d.o.b 8.5.2005), born in Chandpur, Bijnor, U.P, on Diplomatic passport No. 1008533 (valid till 09.05.2017). As per birth certificate issued by Nagar Palika Parishad, Chandpur, Bijnor, U.P, Ms. Jaya Gayathri (d.o.b 8.5.2005) is the daughter with Ms. Begum Akhtar as mother and the applicant as father (Annexure R-9). However, in another birth certificate issued by Carle Foundation Hospital in Urbana Champaign, Illinois, USA, Ms. Jaya Gayathri was born in the same hospital to Ms. Ganchimeg Gombosuren (born in Mongolia) and the applicant (Annexure R-10). The father's name is identical in both the birth certificates.
These Birth certificates were sent for verification to CGI, Chicago (for the US birth certificate) and the District Magistrate, Bijnor, U.P. (for the Indian certificate), 16 (O.A.3421 of 2019) respectively. Consulate General of India, Chicago had forwarded an email confirming that the information in the copy of the birth certificate was consistent with the information on the original birth record filed with the State Vital Records Office (Annexure R-11). A response from the office of DM, Bijnor, was received informing that the matter was investigated by the Addl. District Registrar (Birth & Death), Bijnor, U.P. and the investigation revealed that all the entries in the Birth Certificates dated 25.5.2005 issued by the Nagar Palika Parishad, Chandpur, District Bijnor, U.P. were correct (Annexure R-12). This gave rise to a situation where there were two birth certificates indicating birth at two different places (countries) for the same child. However, a close scrutiny of the documents forwarded by the DM's Office revealed the following:
(a) The verification of the birth certificate dated 25.05.2005 has been done on the basis of entries made in the Register of Births of Nagar Palika Parishad, Chandpur, Distt. Bijnor (Annexure R-13). It could be seen that all the entries made on 30.04.2005 (date of registration of birth) matched those in the birth certificate in question.
Mother's name is shown as Akhtar Begum in the register.
(b) However, two discrepancies had been observed in the birth register regarding issues which were not reflected in the birth certificate. First, age of the mother is shown as 25 years under column 18 of the register.
Considering that the DOB of Smt. Akhtar Begum, spouse of Shri Rajashekhar, is 25.11.1965, her age would have been 39 years when Jaya Gayathri was born (08.04.2005). Secondly, under column 19, against the entry for number of births (including the child being registered), '1' has been indicated. The correct entry should have been '3' since Jaya Gayathri is the third child of Shri Rajashekhar. These inconsistencies indicated that false entries has been made in the birth register.
(c) Father's/Mother's permanent address in the birth certificate has been shown as "Mohalla Patiyapara, Chandpur (Bijnor), UP. Although, this is again consistent with the relevant entry made in the birth register, the records available in the Ministry reveal that both Shri Rajashekhar and his wife Akhtar Begum, belong to Andhra Pradesh and have their bases there. There is no evidence in Ministry's record such as passport, service book, personal files, etc., to suggest that they have or ever had a permanent home address in Chandpur, Distt. Bijnor, U.P. 17 (O.A.3421 of 2019)
(d) The register indicated that the delivery was done through a 'mis-wife'.
(e) The register also indicated the name of one Dr. Neelam Tyagi as the person who had given information about the birth for the purpose of registration.
19. What remains is the issue pertaining to the diplomatic passport to the child, even while the American passport was existing. The applicant consistently stated that the American passport was surrendered and he did not suppress any fact whatever. At any rate, wherever acts or fraud are alleged, they must be proved through clinching evidence, of a person who is available for cross examination. The acts of fraud are never left to be inferred, howsoever strong, the circumstances may be. They must be clearly pleaded and proved. Further a distinction needs to be drawn between an illegality on the one hand and an act of fraud on the other hand. Every wrong, be it in life of an individual, or in the course of administration, by itself does not become either fraudulent or punishable. It is only when an act is found to have been committed, with clear intention of promoting wrongful gain, that too, in violation of clear provisions of law, that the person can be said to have committed fraud. Wherever the situations are governed by provisions of law, there exists a mechanism to deal with such acts. Permitting the 18 (O.A.3421 of 2019) allegations be made and consequences to be followed, even while the statutory machinery remained inert, is something difficult, to be sustained in law.
20. It was not even mentioned anywhere that the applicant suppressed the factum of his having a child by name Jaya Gayatri or that the biological mother of the child. The institution of surrogacy may not be prevalent in India. However it has taken place in a Country where it is not prohibited. The applicant cannot be visited with such serious consequences at a time when his career reached its peak.
21. In our view, the UPSC has also attached greater importance to certain unverified facts and was guided mostly by the technicalities. Hardly there existed any element of fraud with the assertion by the authorities of Nagar Palika Parishad, that every fact is born on by record and there were no acts of fraud. The applicant did not disown the child. If all these aspects are put together there would have been at the most some technical error or deficiency and any act of fraud or suppression. The applicant was not alleged to have misused the diplomatic 19 (O.A.3421 of 2019) passport, issued to his child. It is here, that the need to examine the extenuating or aggravating circumstances, in the context of choosing the punishment arises. The fact that the applicant had an unblemished record spread over nearly 3 decades is certainly an important extenuating circumstance.
22. The very fact that the UPSC as well as the DA felt that after lapse of two years, the applicant would be entitled to be resorted all the benefits, is something which indicates that the respondents are also of the view that the career of the applicant should not be damaged, beyond a point. That was on the basis that the charge, wherein allegations of fraud were held as proved. From the averments in the counter affidavit itself it is evident that there was no fraud wherever, in the process of obtaining birth certificate from the Nagar Palika Parishad, Chandpur. The cumulative effect of all the discussion is that notwithstanding the protective clauses contained therein, the order of punishment, it deserves to be set aside by leaving it open to the DA to pass a fresh order. We are also of the view that since the UPSC was already consulted, there shall not be any necessity to consult it once again.
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23. We therefore, allow the OA and set aside the order of punishment passed against the applicant. It shall be open to the Disciplinary Authority to pass a fresh order, keeping in view, the findings and observations in this judgement. In case the DA feels that the punishment needs to be imposed, it shall be the one which does not come in the way of the entitlement of the applicant to be promoted, subject to his otherwise being found fit, by the DPC. If any sealed cover was maintained, it shall be opened and consequential steps shall be taken. The authority shall also decide the manner in which the period of suspension shall be treated. There shall be no order as to costs.
(Aradhana Johri) (Justice L.Narasimha Reddy) Member (A) Chairman Sd/akshaya3dec/