Mahaveer C. Singhvi vs Union Of India & Ors.
2008 Latest Caselaw 1488 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    Writ Petition (Civil) No.8091/2003

%                                  Date of Decision : August 29, 2008

Mahaveer C. Singhvi                                   ...Petitioner

                                 Through : Mr. Jayant Bhushan,
                                           Sr. Advocate with
                                           Mr. Raj Kumar Sherawat &
                                           Mr. Rajesh Goswami,
                                           Advocates

                                   Versus
Union of India & Ors.                                 ...Respondents

Through : Mr. P. P. Malhotra, Addl. Solicitor General with Ms. Monika Garg & Ms. Parminder Kaur, Advocates

CORAM:

HON'BLE MR. JUSTICE MANMOHAN SARIN HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1. Whether Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to the Reporter or not ? Yes

3. Whether the judgment should be reported in the Digest ? Yes

SUDERSHAN KUMAR MISRA, J :

1. After an exceptional academic career, Mr. Mahaveer

Singhvi was appointed to the Indian Foreign Service on

20.9.1999. He served for nearly two years and eight months. He

was discharged from service on 13.6.2002. He then moved the

Central Administrative Tribunal praying that the said order be

quashed and that he be reinstated in service with full

consequential benefits. This application was dismissed by the

Tribunal. Dissatisfied by the decision of the Tribunal, Mr.

Singhvi has come before this Court praying that the order

passed by the Central Administrative Tribunal, Principal Bench,

New Delhi on 4.9.2003 be set aside in exercise of our jurisdiction

under Article 226 of the Constitution of India, and that the

reliefs sought by him before the Tribunal be granted.

2. A perusal of the impugned decision rendered by the

Tribunal would show that the respondents had made available

the relevant departmental file in original to the Tribunal for its

perusal. After examining the record, the learned Tribunal has

concluded in paragraph 17 thus:

"In our opinion, it clearly indicates that though the abovesaid facts were available before the authorities, still no enquiry had been held. No findings were arrived at. The employer was not inclined to conduct the enquiry but did not want the applicant to continue. When such is the situation, it would only be a motive rather than the foundation for discharging the services of the applicant."

It further concluded in the same paragraph as follows:

"The facts, therefore, would show that it cannot be termed in the facts of the present case that the order casts any stigma or that the facts available show the foundation for termination/ discharge of service of the applicant. It would only be a motive. Resultantly on that ground, the application cannot succeed."

3. Unfortunately, we find that there is no discussion by the

learned Tribunal of the various notings and conclusions reached

by the officers of the respondents at different levels in the

Ministry. The issue whether misconduct was the foundation for

the impugned order removing the petitioner from service, or

whether it was merely a motive for the same, appears to have

been dealt with rather cursorily. To our mind, a decision on this

aspect of the matter would necessarily require a deeper analysis

since it entails examination of the facts and circumstances that

led to the eventual decision of 13.6.2002, discharging the

petitioner from service.

4. However, since the file of this writ petition has become

bulky and unmanageable on account of frequent filing of

documents, affidavits, submissions, revised written submissions

etc., the petitioner and his counsel reviewed the case and on

21.7.2007, it was stated that, "all other pleadings and

documents filed in this case, may be ignored, except the fourth

additional affidavit filed by the petitioner and the revised

submissions dated 21-07-2007". We, accordingly, proceed to do

so.

5. The Vajiram and Rao Institute is situated at Rajinder

Nagar, Delhi. It specializes in coaching aspirants for the Civil

Services Examination. Like many others, the petitioner also

availed of its services in 1998. There, the petitioner became

acquainted with one Ms. Arleen Chadha. Their relationship is

best described in his own words, used in a complaint made by

him later on to the Police, where he says; "initially I had a liking

for her. There was an on and of relationship..".

6. Ultimately, the petitioner obtained a very high rank in the

Civil Services Examination, 1998 and, in September 1999, he

was allocated to the Indian Foreign Service. It is noteworthy

that out of the 9 officers allocated to the Indian Foreign Service

that year, the petitioner was placed at serial number 5 in the

order of seniority. Consequent upon this, the petitioner was

given an offer of appointment on 21.9.1999. Thereafter, the

petitioner completed the foundation training as also the training

imparted by the Foreign Service Institute, Ministry of External

Affairs, and came to be attached for six months to the East Asia

division of the Ministry of External Affairs on 1.1.2000.

7. As is well known, appointment to the Civil Services in India

is hugely coveted, and the Indian Foreign Service is the „creme

de la crème‟ thereof. The petitioner alleges that after his

selection and appointment to the Indian Foreign Service, Mrs.

Narinder Kaur Chadha, who is the mother of Ms. Arleen Chadha,

wrote to his father on 4.6.2000 proposing a marriage between

her daughter and the petitioner. Along with the letter, bio data

and photographs of her daughter, Arleen, were also attached.

Here, Mrs. Chadha has disclosed that her daughter, aged 25, is a

teacher in the MCD Primary School in Rajinder Nagar, and that

her father, who is described as an, "ex-defence personnel", was

the late Mr. Mohinder Pal Singh Chadha. She also described her

daughter's hobbies and other activities as, "travelling, dancing,

swimming, horse riding, fashion shows, anchoring, and modeling

etc." it would be useful to reproduce Mrs. Chadha's aforesaid

letter of 4.6.2000, which is as follows;

"Shri T.C. Singhvi Sahib, I am sending herewith, a copy of the bio-data and a few photographs of my daughter Ms. Arleen for the matrimonial alliance with your brilliant IFS son Mr. Mahaveer Singhvi.

Maahaveer and my daughter are both known to each other and were studying together. Mahaveer must have talked to you about my daughter and us.

It will be my pleasure to talk further in the matter, if the proposal suits you. I shall be waiting for your response.

With regards, Yours Sincerely, (Mrs. Narinder Kaur Chadha)"

8. It seems that this proposal did not find favour with the

petitioner's parents who, it appears, come from a small town in

Rajasthan. Mr. Singhvi contends that this refusal by his parents

to entertain the aforesaid marriage proposal greatly enraged

and infuriated Mrs. Chadha and her daughter, Arleen. According

to him, they now began to nurse a grudge against him.

9. Mr. Singhvi states that till January 2001 things kept

moving smoothly on the career front. By this time, he had, inter

alia, completed the foundation training, as also the attendant

examination, with 73% marks. He was rated "Outstanding" and

letters of appreciation were also awarded to him. After that, the

petitioner completed the one-year training course at the Foreign

Service Institute with 97% marks. There also, he was rated

"Outstanding". He thereafter cleared the prescribed

appreciation course in Parliamentary Procedures etc. in the "A"

grade.

10. However, in the matter of allocation of a foreign language

in which he was required to attain proficiency, and for which the

officers of the Indian Foreign Service are posted at appropriate

destinations abroad, some complications arose. According to the

petitioner, hitherto, the criteria for allocation of foreign-

language had always been merit cum choice. Since there were

nine officers in the batch this time, a total of nine slots were

made available for studying six foreign languages. The

availability of slots was indicated as follows; French -- 2 slots;

German -- 1 slot; Russian -- 2 slots; Chinese -- 1 slot; Spanish -- 1

slot; and Arabic, -- 2 slots. The petitioner is stated to have

indicated his language preference as, French, German, Arabic,

and Spanish, in that order. According to the petitioner, since he

was placed at serial number 5 in order of seniority in the batch

consisting of 9 officers, the four officers senior to him were to be

accommodated first. They were allotted French, Russian,

Chinese and French respectively. Consequently, the two slots for

French already stood exhausted. Since the slot for German was

still vacant and his second preference happened to be German,

the petitioner ought to have been allotted that language.

However, to his surprise, on 29.1.2001, he was allotted Spanish

instead.

11. The petitioner states that his efforts to have this rectified

ultimately resulted in a serious animosity with the second

respondent, Mr. P.L. Goyal, who happened to be the Additional

Secretary at that time. This happened because, after a fruitless

meeting with The Joint Secretary, the petitioner met Mr. Goyal

who informed him that for his batch of officers, the criteria for

allocation had been changed. He said that this time, the criteria

adopted was to grant the preferred language to officers by

placing them in a new order, which consisted of choosing one

from the top of the list, and the next from the very bottom, of the

list of nine officers. By this method, the order of precedence for

the allocation of foreign language to the officers in the

petitioner's batch became 1, 9, 2, 8, 3, 7, 4, 6 and lastly, 5.

Since the petitioner was placed at S.No.5, he was therefore,

relegated to the very last place in order of precedence. When the

petitioner protested against this utterly irrational method, he

was warned by Mr. P.L. Goyal against raising any protest in this

matter. Undaunted, on 31.1.2001, the petitioner submitted a

representation to the Foreign Secretary. However, he received

no reply. To make matters worse, the next day, i.e., on 1.2.2001,

a news article titled, "Sugar Daddy rescues tongue-tied IFS

officer", was published in The Times of India criticising this

process which, according to the paper, was prompted by a desire

to accommodate some other highly connected officer, junior to

the petitioner, who also wanted German. The newspaper also

carried a caricature lampooning the aforesaid Additional

Secretary, Mr. Goyal. The petitioner says that although he was

not responsible for this article, nevertheless, all this infuriated

Mr. Goyal and other superiors, who then made up their mind to

undermine his career. According to the petitioner, on 1.2.2001

itself, in the same context, a noting was made on his file to the

effect that the petitioner was indisciplined. The petitioner claims

that thereafter, systematic steps were taken by the respondents

to undermine him including, inter alia, a memo dated 28.2.2001,

accusing the petitioner of bringing political pressure for

allocation of foreign-language, thus committing misconduct. He

states that although this accusation was brought in the aforesaid

memo, none of the supporting particulars were furnished to him.

In fact, the respondents produced a letter allegedly written by a

Municipal Councillor to the Minister in this behalf before the

Administrative Tribunal for the first time. He claims that this

letter, whose contents were never disclosed to him, was an

obvious fabrication, and that this suppression was mala-fide.

12. The petitioner's case is that while on the one hand, the

Additional Secretary, Mr. P.L. Goyal, as well as the Ministry, had

turned inimical towards him for the aforesaid reasons; at about

the same time, i.e. on 4.2.2002, he was constrained to file a

complaint against the aforesaid Ms. Arleen Chadha and her

family alleging that she has been continuously blackmailing him

with the threat that either he gives her money or marries her,

otherwise she will destroy him. She also threatened to lodge

false complaints against the petitioner in case he refused to

succumb to her wishes. She claimed to know many influential

persons in the Ministry through whom she could ensure that her

threats were carried out. In that complaint, the petitioner also

adverted to the fact that Ms. Arleen had sent a marriage

proposal to his parents through her mother, but his parents did

not agree; and later on, he had also come to know about, "her

dubious activities and life style". He stated that she had been

threatening him for the last several months, and that he was

filing this complaint after being accosted by the said Ms. Arleen

Chadha, Manpreet Singh and her brother, Mahender Pal Singh.

According to the petitioner, immediately thereafter, on 6th

February, 2002, one Mr. Manoj Arora was sent by Ms. Arleen

Chadha with the threat that he should withdraw his aforesaid

complaint. He states that this visit of Mr. Manoj Arora would be

evident from the visitors' register of the Ministry of External

Affairs Hostel, where he was residing at that time, and that

despite a direction by the Central Administrative Tribunal to that

effect, the respondents failed to produce the same. The

petitioner‟s case in short is that by an unhappy coincidence,

these two inimical strains combined, and an unholy alliance was

forged to destroy his promising career.

13. According to the petitioner, ultimately, a retaliatory

complaint was filed by Mrs. Narinder Chadha, mother of Arleen

Chadha before the Minister of External Affairs against the

petitioner on 7.2.2002. This complaint, inter alia, states that the

petitioner was initially threatening her daughter Arleen and was

now threatening her entire family. She alleges that he met her

daughter in the year 1997 and began harassing her "mentally

and use to pass comments which affects the modesty of a

woman". She also states that after demise of her husband in

1995, she is alone and helpless, "and is running from pillar to

post," to save her children and her family. She states that the

petitioner has been continuously threatening her family,

"including threats on life." Without spelling out the specific

demands of the petitioner she states that he has been doing this,

"to derive specific motives, which is best known to him." She

also alleges that as a result of the petitioner‟s actions, her

daughter is demoralized and disturbed and that her health has

deteriorated. She further states, "any proposal for her marriage

could not be materialized due to this development." By that

complaint, she requested that action be taken against the

petitioner for misusing his official position. The Minister also

appears to have granted a meeting to Mrs. Narinder Chadha and

Arleen Chadha on the same day. They were then sent by the

Minister to the Joint Secretary and the Director, Vigilance in this

regard. The said complaint was also sent by the Minster to the

Vigilance Division on 8.2.2002 with a direction that the matter

be attended to at the earliest. The Joint Secretary and the

Director, Vigilance heard both of them and suggested that they

produce some evidence against the petitioner. Thereafter, on

18.2.2002, the Vigilance Division appears to have conducted

some enquires regarding the petitioner's conduct and character

from the Joint Secretary (FSI). In reply, the Joint Secretary

(FSI), i.e. Foreign Service Institute, reported that the petitioner

was with the FSI during the year 2000, and that for that period,

he obeyed orders and instructions given to him and came across

as an alert and active individual. He also mentioned that his

parents were living in Jodhpur and were keeping a very poor

health. In other words, nothing adverse was stated therein.

14. It appears that on the very next day, i.e., 19.2.2002, the

Joint Secretary (Vigilance), held further discussions with the

Joint Secretary (Administration) and consequently, a

memorandum was issued to the petitioner on that day alleging

unauthorised absence. According to the petitioner, the same

was anti dated as 14th February, 2002 and the allegations made

therein were vague and lacking in material particulars and had

been allegedly made with the mala-fide intention of fabricating a

case against the petitioner. The petitioner duly denied these

allegations stating that he had been present throughout. In this

connection, the petitioner also alleges that his reply to the said

memo was also forwarded to the Joint Secretary (Vigilance) on

22.2.2002.

15. Ultimately on 25.2.2002, the aforesaid Mrs. Narinder

Chadha is also stated to have submitted further, "evidences",

against the petitioner including a copy of a list of phone calls

allegedly made by the petitioner to her daughter, Arleen from

12th to 29th February, 2002; and an alleged tape recording of

some of the said conversations. It seems that thereafter on

8.3.2002, the Director (Vigilance Division) prepared a formal

inquiry report stating that there are some complaints of

misconduct against the petitioner, and that the Minister desired

an action against the petitioner. In this connection, Director

(Vigilance), Ms. Narinder Chauhan recorded, inter alia, that;

               "the undersigned and the CVO have           also
               thoroughly convinced themselves of           the
               complaints made against Sh. Singhvi."

She further states that;

"the acts of Shri Singhvi constitute serious misconducts: trying to bribe a Government Servant; lack of devotion to duty; and stalking, threatening and harassing and using filthy language against Smt. Chadha and her family by misusing his official position."

16. On 5.4.2002, the Additional Secretary, Shri P.L. Goyal

noted that, as desired by the Minister, the petitioner was called

for a hearing in the presence of the Joint Secretary (CNV) and

Under Secretary (FSP). He further noted, inter alia, that the

hearing in no way provided additional mitigating circumstances

as far as both Shri Singhvi's conduct or performance is

concerned. The same was also endorsed by the aforesaid Joint

Secretary in his note. Thereafter on 23.4.2002, the Director,

Shri R.K. Bajaj moved a proposal to the Central Vigilance

Commission to terminate the services of the petitioner. There,

he stated that this proposal has the approval of the Minister of

External Affairs. In that proposal, two major aspects have been

referred; one is with regard to the written complaint from a

Desk Officer in DOPT that the petitioner has threatened him and

tried to bribe him to effect a change in allotment of his service

from IFS; the second is with regard to the aforesaid written

complaint from Mrs. Narinder Kaur Chadha claiming that her

daughter was being harassed by the petitioner. The complaint

seems to have been fully believed. The note states as follows,

"It is in this background that MEA have concluded that Shri Singhvi has exhibited misconduct through "stalking, threatening and using filthy language against Smt. Chadha and her family by misusing his official position". It is, therefore, possible to agree with MEA that Shri Singhvi has exhibited conduct unbecoming of a government servant."

17. It is also stated that Shri Singhvi has been unable to give

any satisfactory explanation to both these allegations. This

proposal to terminate the service of the petitioner was ultimately

approved by all the superior authorities. It is noteworthy that in

para 4.27 of the reply filed by the respondents before the

Central Administrative Tribunal, the respondents have, inter

alia, stated as follows :-

"However, as already mentioned, the applicant had been discharged from service, primarily for his misconducts in office.........."

In addition, in the same paragraph, whilst referring to the

complaint of Mrs. Chadha, it is stated that he, "was threatening,

abusive and used explicitly sexually-coloured remarks against

the daughter of Mrs. Chadha". According to the respondents, in

this background, "the point for consideration is that a

Government servant, who should be upholding the law, when

engages in such an illegal act, his misconduct becomes even

more grave. It reflects on his integrity, honesty and

trustworthiness." This pleading constitutes an unequivocal

admission on the part of the respondents that the impugned

order 13.6.2002 has been issued because of the petitioner‟s

misconduct and that misconduct is the very foundation of the

impugned order.

18. In short, Mr. Singhvi contends that the Additional

Secretary, Mr. P. L. Goyal and others were already nursing a

grudge against him for the aforesaid reasons, and once Mrs.

Chadha's complaint landed in their laps, like manna from

heaven, steps to drum him out of the service began to move

apace. He contends that whatever inquiries may have been

carried out by the respondents, to convince themselves of the

truth about such serious allegations, they were all behind his

back and no proper notice or opportunity to respond to these

allegations was given to him. It is also contended that the

meeting allegedly held by the Additional Secretary on 3.4.2002,

where the petitioner is stated to have been given a personal

hearing, never happened. In his additional affidavit, as well as

the synopsis of arguments filed before this Court, he

categorically states that the recording about the petitioner being

given an opportunity and the petitioner admitting the allegations

against him, are all false and mala fide. In this connection, he

states that, "petitioner never received any notice from the

Ministry to attend any kind of personal hearing on any matter

whatsoever and the petitioner did not attend any personal or

other hearing." It is the petitioner's submission that the

aforesaid record shows indubitably that the termination of the

petitioner was on the ground of alleged misconduct. Even the

CVC has also concluded that the petitioner has exhibited lack of

integrity, lack of devotion to duty and conduct unbecoming of a

Government Servant. Moreover, it was also recorded by the

Additional Secretary on 23.4.2002 that the allegations relate to

moral turpitude. Significantly, the petitioner gained access to all

these records through the Right to Information Act. After going

through the records produced and the attendant circumstances,

we have no doubt that his allegations cannot be termed fanciful

or entirely without foundation.

19. Before this Court, the learned Addl. Solicitor General

stated that this is a case where admittedly, no regular inquiry

has been held. According to him, it is a case of discharge

simplicitor as per the terms of the contract and the petitioner,

being a probationer, had no right to the post. According to the

respondents, the impugned order dated 13.6.2002 discharging

the petitioner from service is neither stigmatic nor punitive in

nature since neither any inquiry was conducted nor were any

findings arrived at against the petitioner. He states that there

was a controversy with regard to the allocation of foreign

language and that the petitioner was unhappy with the

allocation of Spanish and wanted German instead. In addition,

there are allegations about the petitioner not having joined at

Madrid which resulted in a confidential memo being issued to

him. He also states that the petitioner had been absenting

himself from work without permission. He then states that a

written complaint was received on 7.2.2002 from Mrs. Narinder

Kaur Chadha by the Minister of External Affairs alleging that the

petitioner was harassing, abusing and stalking her daughter. He

says that looking at the serious allegations in the complaint, the

Government has, in fact, acted leniently in merely discharging

him although he deserved to be dismissed. As regards the

aforesaid meeting taken by the Additional Secretary along with

others on 3.4.2002, Mr. Malhotra clarified that the same was not

a formal inquiry and it was merely to see whether the petitioner

had any prima facie explanation. We are unable to agree with

the contentions of the learned Additional Solicitor General. The

record shows that clear findings have been recorded against the

petitioner. It is not as if there was only some suspicion which

was entertained, and no definite opinion was framed. Apart from

the record, even the pleadings of the respondents filed before

the Central Administrative Tribunal leave us in no doubt that it

is the respondents‟ own case that the impugned orders removing

petitioner from service are a result of what the respondents

themselves consider to be serious misconduct. In other words,

definite findings as to the grave misconduct committed by the

petitioner were certainly arrived at by the respondents.

20. Nevertheless, what has to be determined is whether, under

the circumstances, the impugned order discharging the

petitioner was founded on his misconduct or not, and thus,

whether the court can go behind such an order of dismissal. The

learned Addl. Solicitor General has relied on the case of S. P.

Vasudeva Vs. State of Haryana, (1976) 1 SCC 236, for the

proposition that where the order of discharge does not ex facie

show that it was done as a measure of punishment or does not

cast any stigma, the courts will not normally go behind that

order to see if there were any motivating factor behind that

order. To our mind, this judgment does not debar the courts

from lifting the veil and going behind such orders, if the courts

deem it fit to do so. In Gujarat Steel Tubes Ltd. Vs. Gujarat

Steel Tubes Mazdoor Sabha & Ors., AIR 1980 SC 1896 the

Supreme Court held that the form or the language in which the

order of discharge is couched is not conclusive. The Court will

lift the veil to see the true nature of the order. In this context,

while examining when misconduct as the motive for the

discharge order becomes the foundation for the same, the

Supreme Court held as follows:-

"53.... a termination effected because the master is satisfied that of the misconduct and of the consequent desirability of terminating the service of the service of the delinquent servant, it is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a

case the grounds are recorded in a different proceeding from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt of the, the master abandons the enquiry and proceeds to terminate..."

The Court further held that:

"54. On the contrary, even if there is suspicion of misconduct the master may say that the does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter..."

21. The learned Addl. Solicitor General has, for this aspect of

foundation and motive, relied on a judgment of the Supreme

Court in Parshotam Lal Dhingra Vs. Union of India, reported

as 1958 SCR 821, wherein it was held that :-

"28...........The use of the expression „terminate‟ or „discharge‟ is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to. If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Art. 311, which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant."

A reading of the above para shows that the two tests to

determine whether the government servant has been punished

and the order terminating his service, though innocuous, is one

of dismissal, are disjunctive and alternative to each other. What

must be seen is either the servant had a right to the post, and

even if he did not, if it can be shown that he has been visited

with evil consequences nevertheless, it must be held that he has

been punished.

22. In the context of the services of a probationer, a Special

Bench of seven judges of the Supreme Court in Shamsher

Singh Vs. State of Punjab AIR 1974 SC 2192 held that the

decisive factor is the substance of the order and not the form in

determining whether the order of discharge is stigmatic or not.

It was further held that:

"68. No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case..."

The Court also held;

"80. The form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Art. 311. In such a case, the simplicity of the form of the order will not give any sanctity. That is exactly what has happened in the case of Ishwar Chand Agarwal. The order of termination is illegal and must be set aside."

In that case, the Supreme Court made a very important

observation as under :-

"64. Before a probationer is confirmed the authority concerned is under an obligation to

consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this.............If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption and if his services are terminated without following the provisions of Art. 311 (2) he can claim protection."

The import of the above observations of the Supreme Court is

that in a case where the discharge is based on misconduct and

not merely on suitability and work performance of the officer,

the misconduct is the foundation of the order of termination. If it

is merely a matter of dissatisfaction with regard to the officer‟s

performance at his job, which in the opinion of his superiors/

reviewing officers is not upto the mark, that is to say, the

reasons are related directly to his work, the misconduct cannot

be inferred as the foundation of the discharge order. If, however,

there are serious allegations of a criminal nature and for that

reason the officer is discharged, then, in that case misconduct is

certainly the foundation of the discharge order.

23. In the case at hand, it is the respondents‟ own case that the

External Affairs Ministry, "...sent the view of the Ministry to the

CVC as well as DOPT and both of them concurred with the

suggestion and ultimately on 13.6.2002 the services of the

petitioner were terminated in accordance with the terms of the

appointment." However, when we look at the records, things are

not that innocuous. The view of the External Affairs Ministry to

the effect that the petitioner has committed serious misconduct,

is unequivocal. Under the circumstances, we deem it necessary

to analyze the true intent of the order of discharge in question.

24. To begin with on 8.2.2002 an urgent note was sent out with

regard to the aforesaid complaint of Mrs. Chadha dated 7.2.2002

to the Minister of External Affairs stating that, "EAM was most

disturbed to see this complaint and desired that this matter be

attended to at the earliest." The matter was then discussed in

the Department, and also with the Director, CNV. It appears that

the Director CNV thereafter wrote to the Foreign Service

Institute asking for a report on the petitioner. This report, which

is dated 27.2.2002, was favourable to the petitioner. In the

meanwhile, on 19.2.2002 the Joint Secretary (Administration

Division) put up a note that there were several problems with

the petitioner in the Administration, inter alia, regarding

allocation of language, move on his language posting, demands

for EMA facilities for his parents and non-attendance of DESK

training. It was also alleged that in October, 1999 the

petitioner‟s request for a change of service was denied by the

DOPT and that, "he reportedly telephoned the officer,

threatened him and tried to offer him money and reportedly hid

certain facts and tried for a change of service on pretext of

interpretation of rules." It further went on to state, that, "from

the papers on the file it appears that no action at all was taken

at that time which was unfortunate." This communication was

sent on 19.2.2002. It is thus obvious that by this time, there was

a concerted effort to rake up every old thing that could possibly

be used against the petitioner. It appears that on 25.2.2002 Mrs.

Narinder Kaur Chadha wrote another letter, this time, to Ms.

Narinder Chauhan, Director (CNV) in the Ministry. There, she

acknowledged the fact that she already had a meeting with the

Director (CNV) accompanied by her son and daughter. It

appears that a hearing was afforded by the Director. That letter

also mentions a patient hearing accorded to Mrs. Chadha by Mr.

Jayant Prasad, Joint Secretary, (CNV/AMS) who was perhaps

another senior officer. This letter makes it clear that the

Director (CNV) had suggested to Mrs. Chadha to forward proof

of the petitioner‟s harassment of her daughter. Attached to this

letter were apparently copies of telephone lists along with some

audio recordings. Apparently, on the basis of this

communication, the Director (CNV) noted, inter alia, that, "the

complaints against Shri Singhvi have the potential of causing

embarrassment to the Ministry and the Government, if timely

disciplinary action is not taken against him. The complaints have

been looked into by EAM who has desired action to be taken in

the matter." The note further goes on to state as follows :

"The acts of Shri Singhvi constitute serious misconducts: trying to bribe a Government Servant; lack of devotion to duty; and stalking, threatening and harassing and using filthy language against Smt. Chadha and her family by misusing his official position. Given the nature of the case it would be more appropriate to proceed in accordance with the terms of appointment whereunder no formal inquiry is required to substantiate the charges. The Disciplinary Authority is EAM who has seen the evidence from Mrs. Chadha, the complainant. The undersigned and the CVO have also

thoroughly convinced themselves of the complaints made against Shri Singhvi. It is thus proposed to terminate the services of Shri Mahavir Singhvi (Probationer, IFS, 1998) in accordance with the terms of appointment."

25. We have felt it necessary to reproduce this entire

paragraph since it is particularly important. It seems to be

saying two or three things at the same time. It records a positive

finding that the petitioner has committed serious misconduct by

trying to bribe a Government servant and at the same time

stalking, threatening, harassing and using filthy language

against Mrs. Chadha and her family and that too by misusing his

official position. These are serious charges. Another finding

against the petitioner is lack of devotion to duty. The above

noting also shows that, at the same time, the Director (CNV) has

thoroughly convinced herself of the complaints made against the

petitioner. She further states that even the CEO, i.e. the Chief

Vigilance Officer, was thoroughly convinced of the truth of these

complaints. Till this stage, admittedly, no inquiry was held and

no opportunity was given to the petitioner whatsoever with

regard to these allegations. Amazingly, after having reached

such definite conclusions about the petitioner‟s misconduct, and

that too in the same paragraph, the Director suggests that in

view of the nature of the case the Ministry should make use of

the terms of his employment where, according to her, no formal

inquiry is required to substantiate the charges. The same note

then goes further to state that the Disciplinary Authority is the

External Affairs Minister who has seen the evidence from the

complainant directly. This note is unequivocally approved by the

Joint Secretary, CNV in the following terms:

"Needless to add any more. If Shri Singhvi were to continue in the foreign service I have no doubt he will blacken the name of the country. We should not permit him this opportunity."

26. It is thus obvious that even the Joint Secretary, CNV has

thoroughly convinced himself about the allegations against the

petitioner. We might add that the aforesaid noting of the

Director (CNV) dated 8.3.2002, to the effect that, "given the

nature of the case" it would be more appropriate to proceed

without holding any formal enquiry to substantiate the charges,

does not impress us. We cannot conceive of anything in the

nature of the case that would persuade us to the view that this

was a case where formal enquiry should be dispensed with. The

only reason for this appears to be that the External Affairs

Minister has seen the evidence from the complainant alone and

that the Director (CNV) as well as the Chief Vigilance Officer,

"have also thoroughly convinced themselves of the complaint

made against Shri Singhvi". Such one-sided conviction as a

ground for shutting out adequate opportunity to the person

affected of meeting the case against him has always been

frowned upon by the courts. Had the petitioner been afforded a

proper opportunity, the only thing likely to happen was that the

motives and methods of his superiors in dealing with this case

would have been subjected to closer scrutiny.

27. It appears that thereafter, Mr. Jayant Prasad, Joint

Secretary (CNV/AMS) put up the matter to the Additional

Secretary, CVC, for approving the recommendation that the

petitioner‟s services be terminated. On 22.4.2002 this proposal

was noted by the Central Vigilance Commission as a proposal for

termination on the allegations that, "he is trying to bribe DOPT

Desk Officer for securing his change of service, lack of devotion

to duty and stalking, threatening and harassing and using

intemperate and obscene language against Mrs. Narinder Kaur

Chadha and her family by misusing his official position." The

Central Vigilance Commission in turn examined the matter on

23.4.2002 on the basis that the Ministry of External Affairs has,

in fact, arrived at a conclusion that the petitioner has exhibited

misconduct and recorded that it also agrees with the MEA in this

conclusion. To our mind, the records are so clear that they can

admit to no other conclusion except that the findings of

misconduct arrived at by the respondents are the very

foundation of the impugned order discharging the petitioner.

28. The above conclusion reached by us is also strengthened

by the observations made by the Supreme Court in Radhey

Shyam Gupta Vs. UP State Agro Industries Corporation

Ltd. AIR 1999 SC 609, wherein the Supreme Court held that;

"35. But in cases where the termination is preceded by an inquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the Officer and where on the basis of such a report, the termination order is issued, such an order will be violative of principles of natural justice inasmuch as the purpose of the inquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future termination is to be treated as based or founded upon misconduct and will be punitive. ....."

29. Similarly, in the case of Dipti Prakash Banerjee Vs.

Satvendra Nath Bose National Centre for Basic Sciences,

Calcutta & Ors. AIR 1999 SC 983, the Supreme Court held

that;

"22. If findings were arrived at in inquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as 'founded' on the allegations and will be bad. But if the inquiry was not held, no findings were arrived at and the employer was not inclined to conduct an inquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid."

30. In Shamsher Singh's case (supra) also, the Enquiry

Officer nominated by the Director of Vigilance recorded

statements of witnesses behind the back of the appellant. The

order of termination was given on the basis of the

recommendations in the report, and for that reason, the order of

discharge of the appellant was quashed.

31. In the case at hand, as noted above, a one-sided inquiry

was certainly conducted at different levels. Opinions were

expressed and definite conclusions regarding the petitioner‟s

culpability were reached by key officials who, in their own

words, had, "thoroughly convinced" themselves in this regard.

The impugned decision was not based on mere suspicion alone.

The only thing is that it was all done behind his back. It

therefore does not lie in the mouth of the respondents to

describe the misconduct for which the services of the appellant

were brought to an end, as merely the motive for the said

decision. It was clearly the foundation for the same.

32. Furthermore, the order of discharge of the appellant would

also fall to the ground in view of the observations made by the

Supreme Court in the case of Anoop Jaiswal Vs. Government

of India & Anr. AIR 1984 SC 636 where it was held that;

"13..........Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read alongwith the order for the purpose of determining its true character. If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Art. 311 (2) of the Constitution."

33. The learned Addl. Solicitor General has also relied on the

judgment of the Supreme Court in Champaklal Chimanlal

Shah Vs. Union of India, AIR 1964 SC 1854, but the same

has no application to the present case. That judgment dealt with

the issue that once a departmental enquiry into the allegations

of misconduct is instituted by a superior authority, it is open for

that authority to drop such enquiry and pass an order of

discharge. However, such an order will amount to a discharge

simiplicitor only when no finding of a definite nature has been

arrived at by such authority, which is not so in the case at hand.

Here, while on the one hand, no departmental enquiry was

instituted against the petitioner, yet the respondents had, in

their own words, "thoroughly convinced" themselves of the

petitioner‟s misconduct. In other words, the findings were

definite and unequivocal.

34. In addition, Mr. Jayant Bhushan, Sr. Advocate, has also

addressed this Court on the plea that by the time the impugned

order was passed, the petitioner‟s status was that of a confirmed

officer. However, since we agree with the petitioner on the first

ground that the finding of misconduct forms the foundation for

the termination of the petitioner's service, therefore, the

impugned order, which was admittedly passed without a formal

inquiry and without giving any reasonable opportunity to the

petitioner, was bad and must be quashed, we are not going into

any of the other ground raised by the petitioner.

35. The learned Addl. Solicitor General has also taken the

position that it is only in cases where proper inquiry is held and

a finding of misconduct is duly arrived at thereafter that

misconduct can be taken to be the foundation of the termination

order. He goes further to state that if however, the officer‟s

suitability is judged only with a view to deciding whether or not

to extend probation, then the decision to bring the service to an

end by not extending probation any further, could only mean

that the misconduct in question merely formed the motive for

the decision and not foundation. Be that as it may, nothing has

been brought to our attention by the respondents in this case to

demonstrate that the entire exercise in question was carried out

with a view to deciding whether or not to extend Mr.Singhvi‟s

probation. In fact, the issue of extension of probation does not

seem to have been discussed at all. We also have no doubt that

under the law as it stands today, even a probationary officer

cannot be removed from service on the ground of misconduct

involving moral turpitude of a serious nature, as in the present

case, without affording an opportunity to the officer to put forth

his defence, more so, when the record demonstrates that the

opinion of the senior officers looking into the matter has

advanced from mere suspicion to absolute certainty. The

removal is not merely on the ground that the work of a

probationer is unsatisfactory and therefore, he is unsuitable on

account of his inadequacy for the job or for any temperamental

or other object, not involving moral turpitude, and hence must

be discharged as unsuitable without either confirming him or

extending his probation. In a case like the present one, the

procedure envisaged under the rules applicable, or any other

procedure that is just, fair and reasonable, and which must

necessarily include a fair opportunity of rebutting the allegations

against him, must be made available to the officer concerned. If

that is not done, then notwithstanding the fact that the officer

happens to be a probationer, any order terminating his service

where misconduct forms the basis thereof would be bad.

36. Looking to the records produced before this Court and in

particular the tone and tenor of the advice of Ms. Narinder

Chauhan on 8.3.2002, suggesting that, "given the nature of the

case", a letter of discharge simplicitor be issued in this case,

leaves us in no doubt that the entire object of the exercise was to

camouflage the real intention of the respondents, which was to

remove the petitioner for something about which they had

convinced themselves, but did not think it advisable or necessary

to give the petitioner any opportunity to clear his name.

37. A promising career in the country‟s most coveted service is

at stake here. We are loath to permit the respondents to give

him such short shrift, as they have obviously done. Inter alia,

the conclusion of Mr. Jayant Prasad, Joint Secretary (CNV) that

"...........I have no doubt that he will blacken the country‟s

name.............." appears to us to be utterly without foundation.

This shibboleth is so obviously judgmental and ex facie

defamatory that one is reminded of the Scottish adage, "Give a

dog a bad name and hang him". Surely, this country and

particularly its courts, have come a long way in interdicting such

one-sided arbitrary assessments of subordinates that have the

potential of utterly destroying their careers, nay even their very

lives, without a proper opportunity to the affected officers. The

petitioner was at the threshold of his career when he was

removed from service on 13.6.2002. More than six years have

already elapsed in seeking redressal.

38. Under the circumstances, the impugned order of the

Tribunal dated 4.9.2003 in O. A. No.2038/2002 and order dated

14.11.2003 in Review Application No.323/2003 in O. A.

No.2038/2002 is set aside. Further, the order dated 13.6.2002

discharging the petitioner from Indian Foreign Service is also

quashed and set aside. The respondents are directed to reinstate

the petitioner in the Indian Foreign Service Cadre of 1999 batch

along with all consequential seniority and benefits within one

month from today.

SUDERSHAN KUMAR MISRA, J.

MANMOHAN SARIN, J.

August 29, 2008 skw