Vijai Kumar v. Union of India

order is wholly arbitrary, uncanalised and unrestricted violating principles of natural justice as well as Art. 14 of the Constitution. It has also been held consistently by this Court that the Government carries on various trades and business activity through the instrumentality of the State such as Government Company or Public Corporations. Such Government Company or Public Corporation being State instrumentalities are State within the meaning of Art. 12 of the Constitution and as such they are subject to the observance of fundamental rights embodied in Part III as well as to conform to the directive principles in Part IV of the Constitution. In other words the Service Regulations or Rules framed by them are to be tested by the touchstone of Art. 14 of Constitution. Furthermore, the procedure prescribed by their Rules or Regulations must be reasonable, fair and just and not arbitrary, fanciful and unjust. Regulation 9(b), therefore, confers unbridled, uncanalised and arbitrary power on the authority to terminate the services of a permanent employee without recording any reasons and without conforming to the principles of natural justice. There is no guideline in the Regulations or in the Act, as to when or in which cases and circumstances this

power of termination by giving notice or pay in lieu of notice can be exercised. It is now well settled that the "audi alteram partem" rule which in essence, enforces the equality clause in Article 14 of the Constitution is applicable not only to quasi-judicial orders but to administrative orders affecting prejudicially the party-in-question unless the application of the rule has been expressly excluded by the Act or Regulation or Rule which is not the case here. Rules of natural justice do not supplant but supplement the Rules and Regulations. Moreover, the Rule of Law which permeates our Constitution demands that it has to be observed both substantially and procedurely. Considering from all aspects Regulation 9(b) is illegal and void as it is arbitrary, discriminatory and without any guidelines for exercise of the power. Rule of law posits that the power to be exercised in a manner which is just, fair and reasonable and not in an unreasonable, capricious or arbitrary manner leaving room for discrimination."

¶13As is demonstrable, the said decision was rendered in the context of termination of service of a permanent employee without holding an enquiry and, therefore, their Lordships treated the said power to be unbridled, unfettered and uncanalized and thereby inviting the wrath and frown of the equality clause enshrined in Article 14 of the Constitution of India. The present Rule deals with the recall of an officer who is posted abroad. The Rule does not deal with any kind of imposition of punishment without affording an opportunity. The Rule postulates certain guidelines regarding the conditions under which recall has to be made. The guidelines, as

engrafted in the Rule, are discernible being absolutely clear. The submission of the learned counsel for the petitioner is that as the term "conduct" is mentioned in the beginning of Rule 8(2), there has to be an enquiry in that regard. The term "conduct" used in the Rule has an inseparable nexus with the other conditions that follow thereafter. It is also worth noting that the conduct also relates to any member of his family or any person living with him or under his general control. This does not pertain to any kind of misconduct. It is, above all, a behavioural pattern. It pertains to the disposition or attitude of an officer and the way his family members and persons living with him or under his general control behave. This case relates to his posting in a foreign country, friendly relationship between India and a foreign country, reputation of the country, causing embarrassment to the country, breach of security regulation or commission of an offence, involvement of moral turpitude and serious breach of Conduct Rules which are extremely significant. In certain cases, a disciplinary proceeding may be instituted after the officer is recalled, if necessary. The same may be warranted in certain cases. Recall may take place and disciplinary proceeding may not be instituted, but the recall has to take place regard being had to the sensitive nature of the post and the sensibility

required from an officer holding the post as the same is in the interest of the nation. The submission of the learned counsel for the petitioner is that this is a mere subjective satisfaction but the enquiry really cannot be given any kind of acceptance because the authority is satisfied for the purpose of recall. To elaborate, before a disciplinary proceeding is initiated against a person, a preliminary enquiry is held on the basis of some complaints, the enquiry is contemplated and eventually it may be held. Unless any adverse order is passed touching the service conditions of the petitioner, it is difficult to hold that there cannot be subjective satisfaction for recall. The Ministry may have certain material at its hand from which it may arrive at a conclusion that his continuance in the foreign country has brought or is likely to bring disrepute or has caused or is likely to cause embarrassment to the Government of India. It should be borne in mind that it is basically a posting and, therefore, there can be a recall and as is perceptible, it is governed by a set of Rules. The Rules provide the guidance itself. Thus, we are not convinced that the Rule is totally arbitrary, unguided and unreasonable to be hit by Article 14 of the Constitution of India. The decision rendered in Delhi Transport Corporation (supra) is distinguishable and not applicable to the case at hand.

¶14In view of our aforesaid analysis, we do not find any merit in the contentions raised by the learned counsel for the petitioner and, accordingly, the same are repelled and as a sequitur, the writ petition stands dismissed without any order as to costs.

CHIEF JUSTICE

SANJIV KHANNA, J APRIL 8, 2011 dk/kapil

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on: 29th March, 2011 Date of decision: 8th April, 2011 + W.P.(C) No.2112/2011 Sh. Vijai Kumar … Petitioner Through Mr.Vinay Sabharwal with Mr.Sidharth Joshi and Ms. Neha Sabharwal, Advocates. Versus Union of India … Respondent Through Mr. S.M. Arif, Advocate. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether reporters of the local papers be allowed to see the judgment? YES 2. To be referred to the Reporter or not? YES Whether the judgment should be reported in the Digest? YES DIPAK MISRA, CJ In this writ petition preferred under Articles 226 and 227 of the Constitution of India, the legal substantiality and acceptability of the order dated 14.3.2011 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (for short "the tribunal") in O.A. No.4237/2010 is called in question. 2. Bereft of unnecessary details, the facts which are required to be stated are that the petitioner was appointed as Second Secretary in the Embassy of India, Caracas vide order dated 30.3.2009 and was deployed as Head of Chancery in the Embassy vide office order dated 10.8.2009. On 28.7.2010, he was divested of the charge of Head of the Chancery and Second Secretary (Consular) and redeployed as Second Secretary (Information and Culture). Vide order dated 17.8.2010, the Ministry of External Affairs, New Delhi conveyed to the Embassy the sanction of the President to the recall of the petitioner to the Headquarters in terms of Para 8(2)(ii) & (iii) of IFS (PLCA) Rules. This letter was received by the petitioner on 18.8.2010. 3. Being grieved by the said communication/order, the petitioner knocked at the doors of the tribunal for quashment of the same. Before the tribunal, it was contended by the petitioner that noticing certain irregularities in the Embassy of India, Caracas relating to financial and administrative improprieties committed by the former Ambassador, Counsellors, etc., he submitted written complaints to the concerned officials in the Ministry vide letter dated 30.3.2010 and because of these complaints regarding irregularities committed by his superiors, he had been prematurely recalled from Caracas to the Headquarters at Delhi and, therefore, the said order deserves to be set aside. Apart from the quashment of the order, the petitioner also prayed for declaring Rule 8(2)(ii) & (iii) of the IFS (PLCA) Rules (for brevity "the Rules") as ultra vires Article 14 of the Constitution of India. It was averred in the application before the tribunal that the order dated 17.8.2010 prematurely recalling him is violative of the principles of natural justice as he should have been afforded an opportunity of personal hearing to rebut the allegations made against him; that though the order of recall has been passed in terms of the Rules, yet nothing has been specified therein and the order being a laconic one deserves to be axed; that the order smacks of malafides and has been issued to victimize him because of his attempt to expose the corruption of the senior officers; that the premature recall against the normal tenure of 36 months would cast a stigma on his reputation and career which has been unblemished and, hence, he should have been afforded an opportunity to explain his conduct and that the Rule confers unbridled powers on the Ministry to conclude on the conduct of an officer without giving him an opportunity to explain his conduct and, therefore, the said power is totally unguided and invites the frown of Article 14 of the Constitution of India. The respondent, in oppugnation, contended that the financial irregularities raised by the petitioner have nothing to do with his recall to the Headquarters; that such recall was a result of the petitioner having been found unsuitable to continue in the mission abroad inasmuch as soon after his posting in the mission, he began finding fault with the functioning of all officers and staff (including locally recruite