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2008 DIGILAW 402 (DEL)

Harish K. Dogra v. Union of India

2008-04-11

MANMOHAN, MANMOHAN SARIN

body2008
JUDGMENT Manmohan Sarin, J. 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. 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 petitioners 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. 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. 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 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. Petition Dismissed