Vinod Kumar Sandlesh, Director, Indian Cultural Centre, Consulate General of India, South Africa and Another Vs. Union of India Through Its Secretary Ministry of External Affairs, New Delhi and Others - Court Judgment

Excerpt:
per mr. sudhir kumar, member (a): 1. these three original applications and the contempt petition of the same applicant/petitioner, with almost the same set of respondents (except in the last third oa filed on 21.01. 2012 in which the name of the private respondent/respondent no.3 was added) came to be heard together and are, therefore, being disposed of through a common order. oa no.4640/2011 2. the applicant of these three oas is a permanent central government employee, in the central translation bureau, department of official language, ministry of home affairs, new delhi. he responded to an advertisement floated by respondent no.2, the indian council for cultural relations (iccr, in short) for being appointed as director of the indian cultural centre at johannesburg (iccj, in short) in south africa. he had earlier worked in a similar capacity under the iccr itself at port of spain. in view of his past experience in the field, his application was viewed favourably, and the iccr recommended to the respondent no.1, ministry of external affairs (mea, in short) to approve the appointment of the applicant as director indian cultural centre at johannesburg, since without such an approval by the mea, he could not have been assigned a diplomatic status at johannesburg, which was essential for the purposes of his functioning there. when, on the recommendations of the foreign service board, such approval was granted by the hon’ble minister for external affairs, the ministry of external affairs communicated it to the iccr. 3. iccr then issued a letter/offer of appointment/appointment order dated 13.09.2010 (annexure a-2) addressed to the official superior of the present applicant, indicating the proposed terms and conditions of his deputation to iccj, with a copy to the applicant, asking him to confirm the acceptance of those terms, and conditions. thereafter the applicant communicated his acceptance, signed an agreement with the iccr, and soon joined as director, iccj in january 2011. since his deputation to iccj was with the concurrence of his immediate superior shri rakesh kumar, director, central translation bureau, and his parent department, his lien against his substantive post is protected during the period of his deputation as director iccj. 4. the applicant has submitted that he organized several cultural events at johannesburg soon thereafter, and an immensely successful festival of india in south africa from june-august 2011. the applicant has submitted that around that time one ms. pratishtha saraswat joined as yoga teacher-cum-performer at iccj on 27.05.2011, and commenced her yoga classes in the middle of june 2011. soon thereafter, problems started in between the two, as the applicant has submitted that he tried to discipline ms. saraswat, but she developed an enmity against him, and even used the e-mail id and password of her colleague ms. kamla dhyani, vocal music teacher of iccj, to send a false complaint through email on 03.08.2011 against the applicant herein to the iccr. the conspiracy being hatched against the applicant was revealed to him by ms. dhyani making a complaint against ms. saraswat and her husband for hacking her email id and password to send the complaint dated 12.08.2011 (annexure a-4) and the reminder dated 09.10.2011 (annexure a-5) of oa 4640/2011. 5. the respondent no.2 iccr took these complaints seriously, and deputed the dy. director general (ddg, in short) of iccr, shri anwar haleem, to johannesburg from 9th to 12th august, 2011, to ascertain the status of affairs at the iccj. on his return, the said ddg submitted his report to the iccr, and it was examined by the administration wing of the organization. 6. the concerned file was ultimately submitted to the president of the iccr, dr. karan singh, who on 24.08.2011 gave his directions as follows:- “i have looked through these papers. it is clear that our cultural centre in johannesburg is not functioning effectively. i have also in mind strong views expressed by our high commissioner in south africa, shri virendra gupta who was until recently dg of iccr” . 7. accordingly, the respondent no.2 iccr took follow up action on the report of the ddg, and recalled the tabla teacher at iccj one shri lalit kumar dixit, back to india immediately through an order dated 20.09.2011, and an om dated 23.09.2011 (annexure a-6) was issued to the present applicant, which stated as follows:- office memorandum consequent upon continued complaints received from various quarters, concerning you, namely shri vinod kumar sandlesh, director, indian cultural centre, johannesburg, is hereby conveyed that iccr has taken a very serious view on the complaints and decided that you may be recalled, if your performance does not improve by the end of this year. you have been found lacking in the commitment focusing on indian cultural centre, its resources and people, whether it is establishment of the centre, it immediate renovation for its projection as an indian cultural centre, organizing classes as per goi mandate, good relation with your colleagues and teachers and maintain contacts with local educational, cultural and creative organizations. you are advised to be more tactful in handling the resource person who are deputed by iccr and well utilized their area of expertise while running the cultural centre. iccr have also noted with regret your organizing distasteful functions against indian ethos. iccr would be keeping close watch on your activities and conveys you a serious warning that if your performance during the end of this year or if there is any such complaint in any quarter, you may be recalled. this issues with the approval of competent authorities. (emphasis supplied). 8. after receipt of this aforesaid om dated 23.09.2011, the applicant did not lodge any protest and acquiesced in the same. the applicant was, thus, put on notice by the iccr that if he is not more tactful in handling the resource persons and organizing classes as per govt. of india mandate, and in maintaining good relations with his colleagues and teachers, and with the local educational, cultural and creative organizations, and he is not tactful in handling the resource persons, who are deputed by iccr, and well utilize their areas of expertise, while running the cultural centre, and does not refrain from organizing distasteful functions going against indian ethos, and if his performance till the end of the year does not improve, or if there is any such complaint from any quarter, he may be recalled. 9. about three months thereafter, the office order dated 19.12.2011 (annexure a-1) in oa no.4640/2011 was issued, stating as follows:- it has been decided to recall shri vinod kr. sandlesh, director, india cultural centre, johannesburg immediately. shri sandlesh is required to relinquish charge of the post at icc, johannesburg immediately and return to india by 31.12.2011 after availing usual preparation time. this issues with the approval of the competent authority. 10.  immediately thereafter, the applicant approached this tribunal in oa no.4640/2011 filed on 26.12.2011. this case came up for hearing before the vacation bench on 27.12.2011, and noting the submissions of the learned counsel for the applicant, the vacation bench ordered for issuance of notice for 29.12.2011, allowing the applicant to serve the notice dasti, and the vacation bench had further ordered that, in the meantime, the respondents would not force the applicant to relinquish the post of director, iccj. after many hearings, on 23.03.2012, the learned counsel for the applicant took an objection that the short counter reply dated 25.01.2012 had been filed only on behalf of respondent no.2. while no counter reply had been filed on behalf of respondent nos. 1 and 3, on which submission, time was extended for the counsel appearing for the respondents for seeking instructions whether a separate counter reply would be filed on behalf of respondents no.1 and 3, or not. 11.  the applicant had, in the meantime, filed an ma no.837/2012, praying for directions to the respondents to produce certain documents, and the learned counsel for the respondents submitted that he had no objections for producing those documents, and hence the application for production of the documents before the bench was allowed and with those directions, the ma no.837/2012 stood disposed of. 12.  the respondents had also, in the meanwhile, filed an ma no.815/2012 on 21.03.2012, praying for vacation of the stay, but it was decided by the bench that instead of deciding the ma for vacation of stay, it would be appropriate to decide oa itself finally. 13.  on 12.04.2012, it was submitted on behalf of the respondents that numerous complaints have been received by the respondents through the national commission for women regarding sexual harassment by the applicant, but as a stay has been granted in favour of the applicant, hence they are scared of taking any disciplinary action against the applicant, on the basis of the complaints received after such stay having been granted. a clarification was also sought whether the stay granted earlier would cover the complaints received subsequently or not. the bench that day went ahead to state that no clarification was required in this matter, and no permanent immunity had been granted to any person to commit any sin, and if a person continued to commit the misconduct, then the respondents would be within their rights to initiate the disciplinary proceedings, and no more clarification is required in respect of the complaints received after filing of the oa. with these directions, the stay was however continued till the next date of hearing. 14.  on 30.04.2012, it was submitted that respondents no. 1 and 3 are also adopting the counter affidavit already filed on behalf of respondent no.2, and the case thereafter came to be heard along with the connected oas at length on 29th and 30th may, 2012, for about 4 to 5 hours. 15.  in his description of the facts of the case in oa no.4640/2011, the applicant had gone hammer and tongs against ms. pratishtha sarswat, and as to how he had called ms. pratishtha to discuss various issues in his office at 12 hrs. on 03.12.2011, and had in paragraphs 4.7 to 4.31 of his o.a. assailed the actions of ms. pratishtha saraswat, and had even filed a copy of the complaint given against him by the said ms. pratishtha as annexure a-9. the applicant had also justified all of his actions as being bonafide actions, to maintain office decorum, and to get the employees to sign the attendance register daily through issuance of office memorandum dated 23.07.2011 and 06.12.2011 (annexure a-8). thereafter, in para-4.32 to 4.33, the applicant went on to describe the handling of the sexual harassment complaint filed by ms. pratishtha against him by the committee headed by ms. banshri bose, chairperson, mea’s complaint committee against sexual harassment, through video-conference on 13.12.2011. the statements given by the witnesses along with the reply submitted by him were filed by him as annexures a-10 to a-15, and as proof of his bonafides, a copy of the attendance register maintained by iccj was produced as annexure a-16. 16.  it was submitted that it was only after this that on 19.12.2011, the applicant received the impugned office order annexure a-1, conveying the decision of the iccr to recall the applicant from iccj, and directing him to immediately relinquish charge of the said post. 17.  it seems that the incumbent officer posted at the post arraigned as respondent no.3, high commissioner of india at pretoria, had in between intervened on behalf of the applicant through his messages addressed to respondent no.2 dated 13.08.2011 (annexure a-3) dated 05.10.2011, (annexure a-3 continued), and thereafter he had again intervened on his behalf, telephonically as well as through his message dated 19.12.2011 (annexure a-17), and had urged respondent no.2 iccr to put its decision to recall the applicant on hold until the findings of the mea's complaints committee against sexual harassment are available. 18.  perhaps in view of this communication, since the iccj functions under the overall supervision of the respondent no.3, the applicant was not relieved, and he submitted a representation to respondent no.2 regarding the order of recall dated 22.12.2011 (annexure a-18). on 23.12.2011, through annexure a-19, the applicant herein received a fax message, copied also to the consulate general of india at johannesburg, and high commissioner of india, pretoria, to confirm by written fax that he had handed over the charge of the post of director, iccj, to the consul general/head of chancery of the consulate general of india at johannesburg as appropriate, and in case he had not handed over the charge, he had been asked to do so immediately. he was also asked to confirm his departure schedule. it was three days after this that this oa no. 4640/2011 came to be filed on 26.12.2011. 19.  in their short reply filed 30 days thereafter, on 24.01.2012, the respondent no.2 had submitted that the applicant has approached this tribunal suppressing the material facts, and submitted that the terms and conditions of his assignment/engagement as director iccj are governed by the memorandum of agreement dated 19.01.2011, which is in the nature of a contract entered into between the respondent no.2 iccr, and the applicant herein, and particularly the provisions of clause-4 (c ) of the said agreement, wherein it is clearly covenanted that the respondent no.2 iccr may terminate the services/assignment/engagement of the employee by giving him three calendar months notice in writing at any time during his contractual service under the iccr, without assigning any cause whatsoever, provided that in lieu of any period of notice provided therein, it may give the employee a sum equivalent to the amount of his pay for the period of three months, or any shorter period if such notice falls short of the period of three months. 20.  it was further submitted that while the applicant had been recalled through the impugned office order dated 19.12.2011, a corrigendum to the said office order had been issued on 18.01.2012, which had clarified under no uncertain terms that the order of recall dated 19.12.2011 should be deemed to be an order under clause 4 (c ) of the memorandum of agreement dated 19.1.2011 signed between the applicant and the respondent no.2 iccr, and a copy of the agreement was marked as annexure r-1, and the corrigendum dated 18.1.2012 was marked as annexure r-2. it was, therefore, prayed by the respondents that the instant oa preferred by the applicant has become infructuous, and was liable to be dismissed on this ground alone. 21.  the applicant filed a rejoinder to this on 31.01.2012. in this rejoinder, the focus of his attack had shifted from ms. pratishtha saraswat to the ddg, iccr shri anwar haleem, who had visited iccj from 9th august, 2011 to 12th august, 2011. in this rejoinder, the focus of applicant's grouse was also shifted from the impugned annexure a-1 to the letter of warning dated 23.9.2011 (annexure a-6). it was submitted that the concerned ddg, iccr, had visited iccj without giving him any intimation, and had then submitted his report to the respondent no.2, without giving the applicant an opportunity of being heard. it was further alleged that the said ddg, iccr, had conducted his enquiry in a secretive manner, and no communication was issued to the applicant by the consulate general of india in connection with the enquiry conducted against the applicant by the said ddg, iccr. 22.  it was alleged in the rejoinder that the so called corrigendum dated 18.01.2012, which was not even a document which could have been assailed in the original application, was an outcome of malafide and personal vendetta of the said ddg, iccr, shri anwar haleem. further objections were taken by the applicant in his rejoinder that the reply filed by the respondent no.2 cannot be considered, as no separate reply has been filed by respondent no.1 mea, which is the appointing authority of the applicant. it was further submitted that even the corrigendum filed by the respondents now could not be taken cognizance of, as the same has not been approved/sanctioned by the respondent no.1, mea, which was the appointing authority of the applicant. further ground was taken that the appointment of the applicant as director, iccj was on the recommendations of the foreign service board, duly approved by the hon’ble external affairs minister, and the same cannot be terminated without the permission/approval/consent of the competent authority, which is only the ministry of external affairs. 23.  it was further alleged that while passing a corrigendum to the earlier order dated 19.12.2011, the respondents have challenged the authority of the court, and have ordered the termination of the services of the applicant, who was under protection of this tribunal. it was further submitted that the appointment order dated 13.09.2010 issued by the respondent no.2 specifically stated that during the period of his deputation, the applicant would be governed by the provisions of the indian official secrets acts 1923, and other administrative, conduct and disciplinary rules, such as ccs (conduct) rules, 1964 and ccs (cca) rules, 1965. it was submitted that these rules do not recognize the concept of 'termination simplicitor', i.e., termination without showing the cause, and invoking sub clause-c of the clause-4 of the agreement between the applicant and the respondent no.2, without taking into consideration the contents of the original appointment order dated 13.09.2010, is contrary to the established law as applicable to government servants. it was further prayed that in case of initiating any disciplinary action, the ccs (cca) rules, 1965, must be scrupulously followed, and the respondents have completely failed to abide by the established provisions of the rules and regulations. 24.  it was further alleged that the issuance of corrigendum dated 18.01.2012 is a classic case of malafide on the part of respondent no.2, dg, iccr, since the decision taken is not a 'termination simplicitor', but levels serious allegations against the applicant, and the impugned order and its corrigendum shall always be read against the applicant, and cause him serious prejudice for all times to come. 25.  it was further submitted that sub clause-c of clause -4 of the memorandum of agreement was in the nature of the henry viii clause, and was liable to be struck down. it was further denied that the incumbent dg, iccr, who had sworn to the reply affidavit dated 18.01.2012, was competent to file the short reply which had been filed. 26.  it was further denied that the applicant had suppressed any material facts, and that the terms and conditions of appointment of the applicant are governed only by the memorandum of agreement dated 19.01.2011, which was subsequent to the appointment letter dated 13.09.2011, which is self explanatory. it was further denied that sub clause-(c) of clause-4 of the agreement can be invoked by the respondents and a corrigendum can be issued to an order which is already sub judice before the court, and it was submitted that no such corrigendum could have been issued without the permission/approval of the court. however, it was mentioned that the corrigendum itself has been separately challenged before this tribunal, and therefore, it was denied that the oa no. 4640/2011 has become infructuous, and is, in any manner, liable to be dismissed, and it was prayed that this tribunal may confirm the interim order dated 27.12.2011, as the same is necessary for the furtherance of justice. 27.  ma-815/2012 in oa no.4640/2011 had been filed by the respondents on 21.03.2012, praying for vacation of the orders of stay. the respondents had submitted a copy of the notice dated 14.02.2012 received by the respondent no.2 from the national commission for women through which the respondents had been asked to set up an internal complaint committee at iccr to enquire into the matter of sexual harassment complaint lodged by ms. pratishtha saraswat with the commission. it was, therefore, prayed that so long as the applicant continues to be in-charge of iccj, he will possibly be in a position to influence the witnesses, temper with the documents, and take undue advantage of his position, and, therefore, in view of the interim stay granted by this tribunal, it will become difficult for the respondents to take necessary follow up action as per the instructions communicated by the national commission for women. it was also submitted that in view of the stay operating in favour of the applicant, they are handicapped in taking immediate and appropriate action for initiating the disciplinary proceedings against the applicant. 28.  the applicant had, however, filed a reply to the said ma on 09.04.2012, stating that the said ma was not maintainable. he had further cited a communication sent by the incumbent officer posted as respondent no.3 to state that the stand taken by the respondent no.3 is altogether different and rather contrary to the stand taken by the respondent no.2, and that the respondents are trying to mislead this tribunal by submitting that a reply filed by respondent no.2 is on behalf of respondents no. 1 and 3 also, and that in respect of this, a contempt petition had also already been initiated. it was further submitted that the applicant had not filed a rejoinder in this oa, since, as regard the complaint of sexual harassment, it was being already investigated by the complaints committee constituted by the ministry of external affairs, and it was denied that there is any need to vacate the stay pending the disposal of the oa. oa-156/2011 29.  the applicant filed his second oa no.156/2012 on 12.01.2012, and after rectification of defects, it was re-filed on 13.01.2012, and was then listed before the bench on 16.01.2012. in this oa, the applicant had assailed the issuance of the warning office memorandum dated 23.09.2011, which he had failed to assail in his first oa no.4640/2011. he had produced a copy of the appointment order issued by the ddg, iccr (addressed to his superior shri rakesh kumar, director, central translation bureau) in this oa also, as annexure a-2, but had still not produced a copy of his agreement with iccr, containing the further terms of his deputation. he had further submitted a copy of his report dated 03.10.2011 submitted to the high commissioner regarding the activities of iccj. it is seen that based upon this, on 05.10.2011, the incumbent officer posted as high commissioner at pretoria had addressed a communication to respondent no.2 on 05.10.2011 (annexure a-4 in this oa), which was also annexure a-3 in the earlier oa no.4640/2011. through annexures a-6 and a-7, the applicant had tried to demonstrate the actions taken by him for trying to improve the functioning of iccj. the wrong actions on the part of the already repatriated tabla teacher shri lalit kumar dixit were produced by him as annexure a-8 dated 17.07.2011, and his own reply with reference to this dated 26.07.2011 was produced by him as annexure a-10, as required of him by the high commissioner through annexure a-9. the fact that shri sujit chatterjee, consul at the consulate general of india, johannesburg, had been asked by the high commissioner to conduct urgent investigations, had been pointed out, and the report of shri sujit chatterjee, consul, cgi, johannesburg was produced by the applicant as annexure a-11. 30.  annexures a-12,a-13,a-14,a-15,a-16,a-17 and a-18 all concerned the interaction between the applicant, and the concerned already repatriated tabla teacher and others, between 23.07.2011 to 08.08.2011. annexure a-19 was the instructions issued by the applicant to smt. kamla dhyani, classical vocal teacher-cum-performer on 28.07.2011. at annexure a-20, the applicant had produced a hand written submission of 13 pages by the said smt. kamla dhyani written on 12.08.2011, when the ddg, iccr, shri anwar haleem, was at johannesburg, conducting his enquiry. at annexure a-21, the applicant had produced a copy of the communication sent by the incumbent officer posted as respondent no.3, high commissioner, to respondent no.2 dg, iccr, on 13.08.2011, supporting the applicants case fully, which was a part of the earlier oa no.4640/2011 also (as annexure a-3). at annexure a-22, the applicant had produced his reply dated 16.08.2011 to the complaint made by the said shri lalit kumar dixit, tabla teacher, which in point of time was soon after the return/departure of ddg,iccr, shri anwar haleem, who had been deputed to johannesburg to enquire into the status of affairs at the iccj. annexure a-23 was the letter dated 10.12.2011 sent by the applicant, which was his first objection in point of time against the communication to him dated 23.09.2011, conveying serious objections of the iccr. annexure a-24 was the interim order of this tribunal dated 27.12.2011 in his earlier oa no.4640/2011, and annexure a-25 was a reply given to him by the public information officer of the high commission of india at pretoria. 31.  the respondents filed a short reply on 29.02.2012, through an affidavit sworn to by the incumbent officer posted in the chair of respondent no.2, submitting that the oa was not maintainable for two reasons, namely, (i) warning is not a punishment in terms of rule-11 of the ccs (cca) rules, 1965, and (ii) that the applicant had not exhausted the remedies available to him under section-20 of the administrative tribunals act 1985, and, therefore, the oa was not maintainable since the government servant is required to first exhaust departmental remedies available to him before approaching this tribunal. it was further submitted that in the instant case, the applicant had not even made a representation against the warning issued to him. it was further submitted that the applicant was appointed on deputation for three years but the competent authority had all the rights to keep watch on his performance, and that an appropriate warning and advisory note was issued to the applicant asking him to improve, which the applicant had misconstrued as a punishment, and filed the present oa. 32.  it was further submitted that through the warning dated 23.09.2011, a quietus had been given to the entire issue as far as the applicant was concerned, as the tabla teacher, shri lalit kumar dixit, had been recalled, and since the applicant was conscious about the wrongs committed by him, therefore, he did not make any appeal/representation against the warning issued to him on 21/23.09.2011, which was more like an advise to the applicant, and did not curtail any of the benefits of the applicant. it was further submitted in the reply affidavit that the applicant has now challenged that warning letter on baseless grounds, only after issuance of orders of his recall, and if the applicant had not been recalled, perhaps he would not have challenged the warning issued to him concerning the facts of the situation. any kind of bias on the part of the answering respondent and the president, iccr, against the applicant was denied, and it was submitted that since the impugned warning dated 23.09.2011 does not amount to a punishment, therefore the present oa no.156/2012 was not maintainable and deserves to be dismissed. oa 313/2012 33.  on 27.01.2012, the applicant filed another 3rd oa no.313/2012. through this oa, instead of amending the first oa no.4640/2011, challenging the office order dated 19.12.2011 recalling him to india, he had challenged the corrigendum to that order issued on 18.01.2012 separately in this fresh oa, on the presumption and assumption that the issuance of this corrigendum dated 18.01.2012 had given him a fresh cause of action. his submission was that when the original order itself was under challenge, the corrigendum could not have been issued without the permission of the tribunal. recalling the same set of sequence of events already discussed above while discussing the facts of the case regarding his earlier two oas namely no.4640/2011 and no.156/2012, the applicant had introduced a few fresh facts for consideration by the tribunal through paragraphs 4.9 and 4.10 of this oa, explaining as to how he had tried to enlarge the scope of functioning of iccj, and bring it on rails. in this oa, for the first time, he had also included shri anwar haleem, ddg, iccr, as private respondent no.3 with the high commissioner of india at pretoria being named as respondent no.4 of this oa. further through paragraphs 4.30 onwards, he had imputed motives of conspiracy having been hatched by the private respondent no. r-3, against him, and having conducted an inquiry behind his back. it was also alleged that the corrigendum dated 18.01.2012, which was impugned in this oa, was an outcome of malafide and personal vendetta of private respondent no.3, who was bent upon to recall/terminate the applicant by any means whatsoever, and is a part of the conspiracy against him. 34.  it is not important here to again recount the details of various allegations and counter allegations as repeated by the applicant while describing the facts of this case, as they have already been discussed in brief while describing the facts in the earlier two oas. in this oa, the applicant had taken a ground that the impugned corrigendum order was arbitrary and unreasonable, and was liable to be set aside, since it had tried to utilize the powers of iccr to terminate the employment of any permanent employee by giving him 3 months notice or salary in lieu thereof. it was also submitted that the applicant had been denied a reasonable opportunity to establish his innocence and to defend himself by cross-examining the witnesses produced against him, and by examining himself or any other witnesses in support of his defence, and even an opportunity to make his representation as to why the proposed punishment should not be inflicted on him. it was further submitted that the impugned order is non-est and is liable to be set aside for the additional reason that the appointment of the applicant was on the recommendation of the foreign service board, which was duly approved by the external affairs minister, and therefore his appointment could not have been terminated without the permission/approval/consent of the competent authority, which is ministry of external affairs in the present case and the other two cases also. 35.  it was also submitted that article 311 (i) of the constitution of india states that no person who is a member of a civil service of the union or an all-india service or a civil service of a state or holds a civil post under the union or a state shall be dismissed or removed by an authority subordinate to that by which he was appointed, and since iccr is a subordinate office of the ministry of external affairs, it was not competent to pass the impugned corrigendum. it was further submitted that the decision taken by the respondents is in clear violation of the principle of ‘lis-pendency’ as the impugned order has by-passed the authority and the process of the court. 36.  it was also submitted that by terminating the contract, the iccr has sought to deprive the applicant of an adequate means of livelihood and thus violated article 39(a) of the constitution of india. in taking this ground, the applicant had submitted that even though he is a permanent government servant, and will get his salary once repatriated to his parent department, but his salary would not be adequate to pay for the fees of his son who is studying in johannesburg. further ground was taken that sub-clause (c) of clause-4 of the agreement signed by him and the dg iccr violates articles 311 (1) and 311 (2) of the constitution of india, and, therefore, the agreement itself, and the corrigendum dated 18.01.2012 issued on the basis of that, need to be annulled. it was further submitted that the said clause 4 (c) does not provide for an opportunity to the employee to take recourse to the law to defend himself, and therefore it is against the principles of natural justice, and contrary to the principle of equality before law, as conferred by the constitution under article 14. he had therefore sought for in para 5.10 of this oa for both the agreement and the corrigendum dated 18.01.2012 to be quashed. 37.  he had taken the further ground that the appointment order issued on 13.09.2010 for ordering and permitting for his deputation did not recognize the concept of 'termination simplicitor' i.e. termination without showing cause, and therefore invoking sub clause ‘c’ of clause-4 of the said agreement without taking into consideration para-(k) of the appointment order is contrary to the established law, which para-k of the said appointment order ought to have been followed scrupulously, which the respondents have failed to abide by. it was further alleged that the impugned corrigendum is liable to be set aside as it is not in consonance with the terms and conditions of the appointment order dated 13.09.2010. he had also once again, through para 5.15 of this oa, sought sub clause ‘c’ of clause 4 of the memorandum of the agreement dated 19.01.2011 entered into between iccr and himself needs to be struck down as unfair, un-reasonable and unconciousnable, and obnoxious and oppressive to public conscience, and also harmful and injurious to the public interest, as it tends to create a sense of insecurity in the minds of those to whom it applies, and consequently it is against the public interest, and termed it as the henry viii clause once again. 38.  it was further submitted that there are no guidelines laid down by iccr to indicate as to who on behalf of the iccr can exercise the powers under sub clause ‘c’ of clause 4 of the memorandum of the agreement and in what circumstances. it was further submitted that the impugned corrigendum order is a classic case of malafide, because the impugned order is not a ‘termination simplicitor’, but levels serious allegations against the applicant, and the impugned order shall always be read against the applicant, and would cause serious prejudice to the applicant for all the times to come, while no opportunity was ever given to the applicant to meet the serious allegations levelled against him before issuing the warning. it was further submitted that the statements and counter statements of various employees of iccj had not been taken into account, and the recommendations of the high commissioner of india, respondent no.4 in this oa, had not been given due weightage, while undue weightage had been given to the false complaints given by some disgruntled employees. 39.  it was further submitted that while the order dated 19.12.2011 passed by the iccr was itself arbitrary, prejudiced and malicious, as his duty controlling authorities (high commissioner and other senior officers in south africa) are completely satisfied with the performance of the applicant, further prejudice has been caused to him by issuing the impugned corrigendum dated 18.01.2012, because it has been passed by the iccr terminating his assignment without assigning any reason whatsoever. he had further submitted that as he had been appointed as director, iccj, for a term of three years, he had enrolled his son in the university at johannesburg for bachelor of engineering course, and by terminating his contract, respondents have violated article 41 of the constitution of india which provides for 'right to education'. he had, therefore, prayed for the following reliefs in this third oa: 1.   that the impugned order no.icc/566/12/2010 dated 18th january, 2012 be quashed and set aside. 2.   the respondents be restrained from taking any action on the basis of the impugned order no.icc/566/12/2010 dated 18th january, 2012. 3.   a declaration may be given that clause 4 sub-clause ‘c’ of the memorandum of the agreement dated 19.01.2011, entered into between iccr and an applicant is liable to be struck down being void, unfair, unreasonable and unconciousnable being opposed to public policy and also ultra virus to the provisions of article 14 of the constitution of india. 4.   cost of the proceedings be granted in favor of the applicant and against the respondents. 5. any other relief which this hon’ble court deem fit be also be awarded in faovur of the applicant. 40.  he had was also prayed for interim relief as follows: 1.   to stay the operation of the impugned order no. no.icc/566/12/2010 dated 18th january, 2012. 2.   restrain the respondents from taking cognizance of order no.icc/566/12/2010 dated 18th january, 2012 for any purpose whatsoever. 3.   the respondent be restrained from taking any action on the basis of the impugned order no.icc/566/12/2010 dated 18th january, 2012.’ 41.  this case was heard separately on 30.01.2012 and 01.02.2012. later on, it was got clubbed for the purposes of hearing with the earlier two oas of the applicant vide order dated 16.02.2012 onwards. however, the applicant had filed copies of the earlier two oas 156/2012 and 4640/2011 vide annexures a-13 and 14 respectively and the interim order passed by the vacation bench on 27.12.2011 in oa 4640/2011 vide annexure a-15. a copy of the agreement between iccr and the applicant was filed vide annexure a-17 and the reply filed on behalf of respondent no.2 in oa 4640/2011 was filed vide annexure a-18. before the reply could be filed by the respondents, the applicant had filed a copy of order dated 19.12.2011 and the office memorandum dated 23.09.2011, which have already been discussed in detail in the cases of earlier two oas, as a part of this oa also. 42.  in this oa, the respondents filed reply written statement on 29.02.2012. it was submitted that it was a case of termination of agreement in terms of a clause of the memorandum of agreement of a contract signed between the employee and the employer, and the issue raised in the oa is no longer res integra, in view of the authoritative pronouncements of the apex court in the case of state of haryana and anr. vs. satya narayan singh rathore (2005) 7 scc 518, binny ltd. and anr. vs. sadasaivan and ors. 2005 (6) scale, and the hon'ble high court of delhi in the case of dr. ajay kumar vs. management of national institute of immunology and ors. (wp (c) no.2047/1997, decided on 04.07.2011, in which it was held as follows: for the foregoing discussion and the law laid down, in my view, as per clause 8 of the agreement, management has a right to terminate services without assigning any reason by giving three months notice or salary in lieu thereof’. 43. by way of preliminary objections, it was further stated that this oa is liable to be dismissed only on the ground that the applicant had filed two other oas also on the same issue. in terms of section 10 of the cpc, the applicant cannot be allowed to file two parallel original applications arising out of the same action of the respondents. in case one oa is decided, the decision of such oa would operate as res judicata in the other oa, and therefore, in such circumstances, it was submitted that the present oa deserves to be dismissed solely on this account, as the applicant cannot be permitted to resort to multiple proceedings just to harass the respondents. it was further submitted that the applicant had failed to point out any infringement of his legal rights as contained in the contract of appointment entered into by him on 19.01.2011 and therefore, the oa filed by the applicant is not maintainable. 44.  it was further submitted that the president, iccr is the appointing authority for the directors of iccs all over the world, and he had approved appointment of 10 directors, for different indian cultural centres abroad, including that of the applicant as director, icc, johannesburg. it was further submitted that the foreign service board (fsb) of mea only authorizes the diplomatic status for the foreign postings of such appointees. going into the facts of the incidents with which we are concerned, it was further submitted by the respondents that from the period of june 2011, a stream of complaints were preferred with the iccr headquarters against the applicant regarding his improper behaviour with certain india based teachers deputed to johannesburg as employees at iccj, because of which the competent authority of iccr had deputed a senior officer to conduct a roving/preliminary inquiry into the said allegations and submit report. on his return, the said officer submitted a report to the concerned authority of the iccr, which the respondents produced for our perusal. 45.  based upon that preliminary inquiry by the ddg, iccr, the president, iccr, who was appointing authority of the applicant within iccr decided that the applicant should be let off with a warning, so as to enable him to improve his performance in future. it was submitted that in pursuance thereto, in order to give the entire issue a quietus, the other party involved, i.e. the tabla teacher shri lalit dixit, was recalled, and a warning letter dated 23.09.2011 was served on the applicant stating that in the event he did not improve his performance by the end of the year, he shall be recalled. it was further decided later by the iccr that it would be in the best interest of the country as well as the diplomatic mission in south africa that the iccj should remain free from any kind of controversy, which might malign the name of our country, and therefore only the order of recall of the applicant dated 19.12.2011 was issued invoking the terms of sub clause ‘c’ of clause 4 of the memorandum of the agreement. later on, since the said orders of recall, calling upon the` applicant to relinquish charge did not specifically mention the provisions of sub clause ‘c’ of clause 4 of the contract, a corrigendum dated 18.01.2012 was issued, which was in continuation of the order of recall dated 19.12.2011, and therefore, any illegality in connection with the issuance of the corrigendum dated 18.012012 was denied by the respondents. 46   the respondents further submitted that in accordance with the recall order dated 19.12.2011, the applicant should have relinquished his charge as director, iccj, and come back to india by the end of december, 2011. however, he did not obey the orders, and delayed handing over the charge, and after some delay he filed oa no.4046/2011 before this tribunal. after receipt of notice of said oa, the competent authority had re-examined the whole case, and the corrigendum dated 18.01.2012 came to be issued. it was submitted that the respondents have acted within their powers, and as per the memorandum of the agreement signed by the applicant, and the applicant has only mentioned irrelevant facts in his oa, which have no relevance to the issue raised regarding the applicant’s repatriation. 47.  it was submitted that when the applicant had accepted the deputation based upon the terms and conditions as contained in the memorandum of the agreement dated 19.01.2011, he cannot now raise any grievance against the execution of the conditions contained in the aforesaid memorandum of agreement. the respondents had therefore gone on to explain the procedure for appointment by the iccr, with prior approval of the mea, and acting upon independent powers of the iccr. a tabla teacher had already been recalled earlier on the applicant’s complaint, and it was submitted that such recall order does not require any prior approval to be taken by the iccr from foreign service board of mea. 48.  it was further submitted that the preliminary inquiry conducted by the respondents-iccr had found that the applicant is lacking in vision to do any good for the indian community, and has no experience of implementing cultural projects and its promotion. the report had further noticed that after four months of the applicant's posting, the number of students taking music classes had gone down by 60 to 70%, and therefore, the applicant had no right to continue on the said post, when his performance has not been up to the mark as expected by the iccr, and he had failed to improve his performance even after notice of warning having been issued to him. it was denied that any stigma is attached, and it was submitted that no illegality had been committed, and that the applicant has been recalled only as per the terms and conditions of the agreement signed by him with the iccr. 49.  the respondents further defended the private respondent-respondent no.3, ddg, iccr, stating that the applicant has tried to mislead this tribunal by giving incorrect facts. it was denied that the respondents have imposed any punishment upon the applicant, or that the order passed for recalling him is either stigmatic, or not based on sound foundations, which would have necessitated them to give a proper notice to the applicant. the allegation of the applicant that the respondents have acted in violation of the principles of ‘lis pendency’ was also denied. it was therefore prayed that since the applicant has not raised any single valid ground, and has not been able to prove that the actions of the respondents are wrong, and the actions do not deserve interference by this tribunal, hence the oa is liable to be rejected. 50.  the applicant thereafter filed a rejoinder on 21.03.2012. in this, he more or less repeated his submissions made in the oa. he further reiterated that none of the so called complaints against him were ever brought to his notice, nor to his controlling authority, namely the high commissioner of india in pretoria, and the consul general of india at johannesburg. the status or credibility of the said stream of complaints was never got verified from them. he submitted that he had filed an rti application dated 03.01.2012, and was informed by the high commission and consulate general of india on 12.01.2012 that no complaint whatsoever was received by those offices against him. it was denied that the private respondent no. r-3 shri anwar haleem could have conducted a roving/preliminary inquiry, as has been stated by the respondents in their reply, since even before the visit of mr. haleem, a detailed inquiry had already been conducted by the high commissioner, hci pretoria, at the request of iccr, which was communicated vide letter dated 21.07.2011. it was, therefore, submitted that the second inquiry conducted by the private respondent-respondent no.3, was ill motivated, with malafide intention, and without following the laid down procedure for the conduct of the enquiry under the relevant rules applicable. 51.  it was submitted by the applicant that around 2 = months back he had received a warning letter dated 22.9.2011, in response to which he had made a representation on 10.12.2011 to the respondents. the locusof the respondents in issuing such a warning letter to the applicant to improve his performance was disputed by the applicant in view of the fact that the progressive improvement of the functioning of the newly established/upgraded iccj had been appreciated by the local organizations and the high commissioner, who is the controlling authority of the applicant, and who had appreciated his performance vide his communication dated 19.12.2011. the applicant had cited that on his complaint mr. lalit dixit, the table teacher, had already been repatriated, and an inquiry was conducted by shri s.chatterjee, a consular senior officer of consulate general of india, johannesburg, in which it was submitted that the complaint against the applicant appears to be baseless and ill motivated, because of which the respondents  iccr had ordered the repatriation of the said tabla teacher. the applicant also placed on record some letters of appreciation received by him from local cultural organisations, individuals and prominent community leaders, besides the appreciation from the high commissioner of india. 52.  he also submitted that there was no occasion, reason or justification for the respondents to have invoked sub section ‘c’ of section 4 of the agreement dated 19.12.2011 for terminating his services. he also submitted that there was no reason further for the respondents to issue the impugned corrigendum on 18.01.2012, when the oa challenging the original order dated 19.12.2011 of his recall was already pending for disposal before this tribunal. it was further denied that through the issuance of corrigendum dated 18.01.2012, the services of the applicant with the respondent-iccr had come to an end. it was denied that there was any misbehavior in the applicant having concealed the factum of execution of agreement dated 19.12.2011 in oa no.4640/2011, and it was submitted that since the order of recall dated 19.12.2011 had not relied upon the agreement, there was no occasion or reason for the applicant to place that agreement on record. it was further submitted that since the high commissioner of india in south africa, being the immediate controlling authority of director, iccj, has repeatedly conveyed about the outstanding performance of the applicant to the iccr, they could not have arrived at a different conclusion. in the result, the applicant had again prayed for the oa to be allowed, in the interest and furtherance of justice, and he had filed documents p-1 to p-9 (pages 196 to 264) in support of his contention. 53.  after the hearing of the case on 10.05.2012, it was adjourned to 22.05.2012. the applicant had filed in the meantime filed a fresh ma no.1461/2012 in oa no.313/2012, seeking permission to file additional documents, in order to bring on record the stand taken by the incumbent high commissioner of india at pretoria, which he filed as annexures a to d (pages 5 to 16 of the ma and running pages 271 to 282). through this ma, the applicant had tried to prove that the incumbent high commissioner of india had taken a stand totally contrary to the stand taken by the iccr, and even though the iccr was well aware of the stand taken by the incumbent high commissioner of india, intentionally and deliberately it had not incorporated the stand of the high commissioner of india in its reply. it was further submitted that the statement made by the learned counsel for the respondents on 30.04.2012 was to try to mislead this tribunal intentionally and deliberately, with a motive to get a favourable order. he had therefore submitted that he was initiating appropriate contempt proceedings against dg, iccr, for committing the contempt of the court in this manner, and for interfering in the administration of justice, and thereby committing contempt of court. it was after this, that cp no.407/2012 in oa 313/2012 was filed by the applicant on 21.05.2012. cp no.407/2012 54. the applicant had filed the contempt petition (cp) no.407/2012 in oa 313/2012 on 21.05.2012. in this cp, the petitioner had prayed to initiate contempt proceedings against respondent no.1 shri anwar haleem, ddg, iccr, and the respondent no.2 shri suresh goel, dg, iccr. from the records as obtained by the petitioner under the rti act from the high commissioner of india at pretoria, it was revealed to him that an apparently wrong submission was made by the learned counsel for the respondents before the tribunal on 30.04.2012, that the respondent no.3 of oa no.313/2012, i.e. the high commissioner of india at pretoria, was adopting the affidavit which had been filed by the respondent no.2 of that oa, which statement was not correct, as the respondent no.3 of that oa, the high commissioner of india at pretoria, had never adopted the stand taken by the respondent no.2 iccr in that oa. it was submitted that through annexure ‘a’ dated 10.01.2012, and annexure ‘b’ reply to the same dated 10.01.2012, and annexure ‘c’, the e-mail sent by the high commissioner of india at pretoria to respondent no.1 as from shri shambhu s.kumaran, deputy high commissioner of india on 28.12.2011, the incumbent high commissioner of india had stated that the categorical stand of the high commission had been delineated in its earlier report and communication dated 13.08.2011 annexure ‘d’, which is already annexed in both the oas nos.4046/2011 and 315/2012, and the same stand taken had been again reiterated by the high commissioner in his communication dated 05.10.2011 annexure ‘e’ of the cp, and annexure ‘g’ dated 26.12.2011 of the cp. 55.  on the basis of this, the petitioner had stated that it is clearly established that iccr was well aware of the different stand taken by the high commissioner of india at pretoria, and still the iccr had intentionally and deliberately not incorporated the stand of the high commissioner of india at pretoria in its reply filed before this tribunal in the said oa, and an incorrect statement was given intentionally and deliberately by the learned counsel for the respondents, with the intention to mislead this tribunal, and that the respondents of the cp had also filed a false affidavit in the court, claiming that the stand taken by the iccr is also the stand taken by the high commissioner of india. 56.  the petitioner had, therefore, alleged that by filing a false affidavit, supporting a false and misleading reply/counter affidavit/statement, withholding from this tribunal the different stand taken by the incumbent high commissioner of india at pretoria, the respondents had tried to mislead this tribunal that the stand taken by the iccr is also the stand of the respondent no.3 of the oa, even though they were well aware that the counter affidavit filed was baseless and misleading. it was alleged that by doing so, the respondents named in the cp had tried to interfere with the administration of justice, withholding the separate views of the respondent no.3 of the oa, and had given a false statement that the stand taken by the iccr in the o.a. had been adopted by all the respondents, including by the high commissioner of india at pretoria, and it amounts to a contempt of court. after hearing the counsel in the cp along with three oas concerned, on 24.05.2012 a direction was issued to the respondents to produce the concerned file, but no notices were issued to the respondents in the cp. 57.  during the course of detailed arguments, learned counsel for the applicant relied upon the various judgments. it is seen that in the case of union of india through govt.of pondicherry and anr. vs. v.ramakrishnan and others. civil appeal no.6332/2005; the case concerned with the absorption of deputationists and the hon’ble apex court had ordered as follows: “ordinarily, a deputationist has no legal right to continue in the post. a deputationist indisputably has no right to be absorbed in the post to which he is deputed. however, there is no bar thereto as well. it may be true that when deputation does not result in absorption in the service to which an officer is deputed, no recruitment in its true import and significance takes place as he is continued to be a member of the parent service. when the tenure of deputation is specified, despite a deputationist not having an indefeasible right to hold the said post, ordinarily the term of deputation should not be curtailed except on such just grounds as, for example, unsuitability or unsatisfactory performance. but, even where the tenure is not specified, an order of reversion can be questioned when the same is malafide. an action taken in a post haste manner also indicates malice. [see bahadursinh lakhubhai gohil vs. agdishbhai m. kamalia and others,(2004) 2 scc 65, para 25]”. [emphasis supplied] 58.  thus, while it is true that ordinarily the term of deputation should not be curtailed, but, it was held by the hon’ble apex court itself that it could be curtailed on the ground of unsuitability or unsatisfactory performance, which is the case of the respondents in this case. in this context, the findings arrived at after his enquiry by shri anwar haleem, the ddg, iccr are relevant to be cited here:- finding icc, johannesburg presents a sorry state of affairs. it is in mess. the present complaints and other activities have led to a stage where our shortcoming and failures are open to public. the two main parties to the conflict namely vinod kumar sandlesh, director, icc and shri lalit kumar dixit, tabla teacher are responsible in equal manners for the present situation. based on above, i am convinced that director, icc, johannesburg shri sandlesh has not performed his assigned job to run the cultural centre. it is strikingly rare that all the teachers of a centre are against there director. he is neither able to built a team and take work out of it nor he was able to earn their fear and respect. he is also responsible of unable to organize performance, or to maintain the same level of students (leave aside enhancement) as before. it is painful neither that in the last 4 months neither the centre was formed as a centre with sign-board, activity configuration, full-filling the spacing norm nor making the centre visible in its presence. it is painful to see that how a single director could earn so much adverse remarks from most of the teachers, local indian community and associations. similarly, his putting word implicating foreign service officers is makes his whole personality doubtful. the determination and adamancy of all the teachers in reiterating their complaints of harassment etc. leave not much doubt that most of it might have actually happened. the comments of independent community members to the similar team corroborate the complaint. he was a hindi official and he joined trinidad and tobago as raj bhasha adhikari and after completing his tenure he was asked by the high commissioner to be in-charge of the cultural centre. he stayed in trinidad and tobago for more than 5 years and later on he was appointed as director, icc, johannesburg. i have found him evasive and vague on issues which require specific response. he is also correctly depicted by an independent community member as a person who has been given a job too big. i am of the view that we need to deals with such situation very firmly otherwise the expansion plan of the indian cultural centres might face similar situations. i am also of the view in equal measure that shri lalit dixit is irregular in his attendance and undisciplined in his attitude. he should not have sent such complaint to different placed without exhausting local channels fully. shri dixit should also have addressed his transportation problem by now as already addressed by other two teachers. he has failed to convince about his plans to promote tabla in the centre. he neither fear his director nor respect him. similarly, the differences between the director and lalit dixit are beyond reconciliation and they cannot be addressed by counseling or issuing warning. the issue is much larger than that namely to re-establish the credibility of the centre. i am also of the view that they both deserve equal action to be taken against them for their ill activities and conduct not fit to represent india. i am also of the view that any part implementation or blaming one could further aggravate the problem. i am also of the view that the two other teachers deserve reprimand /warning for their ways and attitude and to be part of this crises playing the game of one up-man-ship. with this i conclude my report and submit it for the examination of ddg(a) as desired by dg, iccr and to recommend appropriate and suitable penal action’. (emphasis supplied). 59.  when the above report of the ddg, iccr, shri anwar haleem, was considered by the ddg (administration), he recorded his comments as follows:- “subject: personal issues in icc, johannesburg and ddg(i)’s report thereof. my comments on ddg (i)s report are as follows:- (a)  director (icc) comes across as incapable of running the office. he has not been able to manage personal problems and the general morale of his staff seems to be low for which he should be held responsible. he certainly has not been proactive in handling the personal issues of his staff, and does not come across as a sympathetic person. (b)  externally also, he seems to have created a poor impression judging by the comments of various members of the indian community whose opinion is that the icc is not contributing anything to joburg cultural scene. (c)  director (icc) does not seem to have done anything to improve and effectively utilize the facilities available to him, and seems to have neglected even basic and essential details such as putting up a signboard. he is not making good use of the staff available to him, with classes held only on saturdays, and apparently virtually no activities during the rest of the week. he also seems to have made no effort to tap local resources including those who have been keeping indian culture in joburg before the icc was opened and organize activities which would make the icc an active institution. his failure to interact with the consulate and keep them informed is inappropriate, to say the least. he seems to be acting as an adjunct to the high commissioner, which is not his primary job. in this context, ddg (i)s comments on the attitude of the hc are very relevant, including the incredible statement that there is no law and order issue in joburg to the fact that private classes for hc’s family seems to be a major activity of the icc, which again is not the objective of the icc. d) shri dixit (the tabla teacher) also clearly comes across as indisciplined and unco-operative, and his behaviour (from the way his complaint was made, to his apparently not making any effort to try and deal with whatever problems he was facing as the other teachers have done, and his attempts to profit from his position by soliciting private tuition opportunities) has been clearly not in keeping with the demeanour expected of an icc employee. based on the information contained in the attached report by ddg(i), some highlights of which i have mentioned above, i would agree with his recommendation that both director (icc) and shri dixit be relieved of their responsibilities at the earliest possible, before further damage is done to the functioning of the icc and its image (and the image of iccr) in joburg. i would also like to suggest that it be made clear that officials of the icc should follow the established chain of command, and report to the high commission through cgi joburg. for consideration, please.’ (emphasis supplied). 60.  it was only after this that the concerned file was ultimately submitted to the president, iccr, and he recorded his directions as already reproduced above in para 6/ante, and the rest of the sequence of events followed. therefore, it appears that the instant case squarely falls within the exception laid down by the hon’ble apex court in the cited case of union of india through govt. of pondicherry and anr. ’(supra), and therefore the benefit of that cited case cannot be granted to the applicant. 61.  the learned counsel for the applicant had further cited the latest judgment in the case of ravi yashwant bhoir vs. district collector, raigad and ors. civil appeal no.2085 of 2012; in which it was reiterated by the apex court that even in administrative matters, the reasons should be recorded, as it is incumbent upon the authorities to pass a speaking and reasoned order, by citing kumari shrilekha vidyarthi etc.etc. v. state of u.p. and ors., air 1991 sc 537, in which the apex court had observed as under: "every such action may be informed by reason and if follows that an act un-informed by reason is arbitrary the rule of law contemplates governance by law and not by humour, whim or caprice of the men to whom the governance is entrusted for the time being. it is the trite law that be you ever so high, the laws are above you.this is what a man in power must remember always.” 62.  from the findings and notings of the ddg, iccr, who conducted the enquiry, and of the ddg (administration), iccr, who considered that enquiry report, as reproduced above, it cannot be said that they had acted according to whims or caprice. the ddg, iccr who conducted the enquiry had submitted with his enquiry report the annexures regarding records of his discussions with ms. yvonne pawlowski (hatha yoga teacher), ms. adelaide lorge, pranayama teacher, ms. monali shome (classical music teacher), shri debajit shome, president of india club, johannesburg, shri yogesh chauhan (tabla teacher), dr. vinod hassal (kathak teacher and director of r.k. dance academy), ms. tamara jikijela, local clerk, at iccj, mr. nazeem pather, programme officer at iccj, ms. jayespree moopen, director, tribhangi dance academy, shri lalit kumar dixit, tabla teacher, smt. pratishtha saraswat (yoga-cum-kathak performer), and the record of interaction with mr. sujit chatterjee, consul at the consulate general of india at johannesburg. 63.  therefore, since it is apparent that the respondent authorities have not acted merely upon their whims and caprice, the benefit of the observations of hon’ble apex court in ‘kumari shrilekha vidyarthi’s case (supra) cannot also be provided to the applicant before us. 64.  the learned counsel for the applicant cited the judgment in s.n. mukherjee vs. union of india air 1990 sc 1984; to support his contention that it has been held that the object underlying the rules of natural justice is to prevent miscarriage of justice and to secure fair play in action, and the respondents have committed legal malice. on this, hon’ble apex court had held in this case as follows: 37. this court has consistently held that the state is under an obligation to act fairly without ill will or malice- in fact or in law. where malice is attributed to the state, it can never be a case of personal ill-will or spite on the part of the state. ‘legal malice or malice in law means something done without lawful excuse. it is a deliberate act in disregard to the rights of others. it is an act which is taken with an oblique or indirect object. it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. mala fide exercise of power does not imply any moral turpitude. it means exercise of statutory power for purposes foreign to those for which it is in law intended. it means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. passing an order for unauthorized purpose constitutes malice in law. (see: addl. distt. magistrate, jabalpur v. shivakant shukla, air 1976 sc 1207; union of india thr. govt. of pondicherry and anr. v. v. ramakrishnan and ors., (2005) 8 scc 394; and kalabharati advertising v. hemant vimalnath narichania and ors., air 2010 sc 3745). 65.  however, in this case it cannot be said that the respondents did not have any lawful excuse whatsoever to resort to the actions to which they have resorted, or that orders were passed with a depraved inclination, or for unauthorized purposes. therefore, to our mind, the benefit of this cited judgment in s.n. mukherjee’s case’ (supra) also does not inure to the applicant in this case. 66.  the learned counsel for the applicant also cited the case of bhubaneswar development authority and anr. vs. adikanda biswal and ors. (supra) civil appeal no.4036-4040 of 2007; judgment dated 01.02.2012; to state that the apex court has held as follows: “18. the judicial review is not an appeal from a decision, but a review of the manner in which the decision is made and the court sits in judgment only on the correctness of the decision making process and not on the correctness of the decision itself. the court confines itself to the question of legality and is concerned only with, whether the decision making authority exceeded its power, committed an error of law, committed a breach of the rules of natural justice, reached an unreasonable decision or abused its powers” 67.  it does not appear to us that the respondents have in the instant case crossed the bounds of law in taking the decisions which have been taken, or that in the eyes of law the decisions have been beyond the terms and conditions of the contract which the applicant had signed, and that the respondents have in any manner been unreasonable to the applicant, or have in any manner acted in abuse of their powers. since no formal departmental inquiry was instituted or conducted in this case, the applicant cannot also be allowed to assail not having been allowed a formal personal hearing, and production of defence witnesses, and cross examination of prosecution witnesses, and therefore this judgment in ‘bhubaneshwar’ development authority and anr (supra) also does not come to the benefit of the applicant in this case. 68.  learned counsel for the applicant also cited the case of asif iqbal, irs vs. union of india and anr. wp (civil) no.11032/2009 in which in its judgment dated 01.09.2009, the hon’ble apex court had in para-5 of the judgment held as follows: “5. learned additional solicitor general drew our attention to the fact that the deputation of the petitioner was approved by the appointments committee of the cabinet and his withdrawal from deputation was also approved by the appointments committee of the cabinet for better and efficient working of the foundation. it was pointed out that a replacement had already taken charge as secretary on 14th september, 2009 and, therefore, there is no possibility of the petitioner being permitted to rejoin as secretary of the foundation. it was also contended that there is no stigma cast on the petitioner”. 69.  it was the contention of the learned counsel for the applicant that the initial appointment of the applicant having been approved by the foreign service board, his recall order should also have to be approved by the same board. however, in the instant case, the contention of the respondents that fsb approval was only for the purposes of conferring diplomatic status upon the persons selected for various iccs abroad by iccr, and was not an approval of his appointment, since their appointing authority was only the chairman of the iccr, appears to be true, and therefore, the benefit of this cited judgment in ‘asif iqbal’s case’ (supra) cannot also inure to the applicant. 70.  in their reply arguments, the learned counsel for the respondents had relied upon the case of state of madhya pradesh and ors. v. ashok deshmukh and ors.; air 1988 sc 1240; in which the question of malafide had been considered by the apex court, and it was held that the allegations of malafides and bias cannot be made in the absence of concrete proof of the same. in the instant cases, it appears to us that the applicant has only as an afterthought, and in a process of gradual improvement of his case, raised the issue of mala fides against private respondent-respondent no.3, only in his third oa, which afterthought had not occurred to him earlier at any point of time from august 2011. therefore, the issue of malafides raised by the applicant more than six months after august, 2011, and which was not raised by him in his first oa, or his second oa, cannot be sustained. 71.  respondents further cited the case law in kunal nanda vs. union of india and another, (2000) 5 scc 362; in which the rights of the deputationists for permanent absorption had been discussed by the hon’ble apex court, and it was held as follows: “6..the basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation. 72.  it was submitted by the respondents that by extension of the above ratio it follows that a person on deputation can be always and at any time repatriated to his parent department to serve in his substantive post therein. since the present case is not a case of long deputation, or absorption, the cited case law is not directly applicable. however, the law as laid down by the apex court is clear that no vested right is created in favour of a deputationist. 73.  the respondents further cited the case of gridco limited and anr vs.sri sadananda doloi and ors.: civil appeal no.11303 of 2011; decided on 16.12.2001, in which the case concerned termination of the services of the respondents therein, who were appointed with the petitioners therein on contract basis, and whose appointments were terminated on 19.02.2011 with three months salary in lieu of notice being paid to them. in para-26, 27 and 28 of the said judgment, the hon’ble apex court has held as follows: “26. a conspectus of the pronouncements of this court and the development of law over the past few decades thus show that there has been a notable shift from the stated legal position settled in earlier decisions, that termination of a contractual employment in accordance with the terms of the contract was permissible and the employee could claim no protection against such termination even when one of the contracting parties happened to be the state. remedy for a breach of a contractual condition was also by way of civil action for damages/compensation. with the development of law relating to judicial review of administrative actions, a writ court can now examine the validity of a termination order passed by public authority. it is no longer open to the authority passing the order to argue that its action being in the realm of contract is not open to judicial review. a writ court is entitled to judicially review the action and determine whether there was any illegality, perversity, unreasonableness, unfairness or irrationality that would vitiate the action, no matter the action is in the realm of contract. having said that we must add that judicial review cannot extend to the court acting as an appellate authority sitting in judgment over the decision. the court cannot sit in the arm chair of the administrator to decide whether a more reasonable decision or course of action could have been taken in the circumstances. so long as the action taken by the authority is not shown to be vitiated by the infirmities referred to above and so long as the action is not demonstrably in outrageous defiance of logic, the writ court would do well to respect the decision under challenge.” 27. applying the above principles to the case at hand, we have no hesitation in saying that there is no material to show that there is any unreasonableness, unfairness, perversity or irrationality in the action taken by the corporation. the regulations governing the service conditions of the employees of the corporation, make it clear that officers in the category above e-9 had to be appointed only on contractual basis. 28. it is also evident that the renewal of the contract of employment depended upon the perception of the management as to the usefulness of the respondent and the need for an incumbent in the position held by him. both these aspects rested entirely in the discretion of the corporation. the respondent was in the service of another employer before he chose to accept a contractual employment offered to him by the corporation which was limited in tenure and terminable by three months' notice on either side. in that view, therefore, there was no element of any unfair treatment or unequal bargaining power between the appellant and the respondent to call for an over-sympathetic or protective approach towards the latter. we need to remind ourselves that in the modern commercial world, executives are engaged on account of their expertise in a particular field and those who are so employed are free to leave or be asked to leave by the employer. contractual appointments work only if the same are mutually beneficial to both the contracting parties and not otherwise. 74.  though the cited case law is not directly applicable, since the applicant is not merely a contractual employee, and he holds a lien on his substantive post even while being on contractual deputation with iccj, what can be borrowed from the cited judgment is that when in the modern commercial world, executives are engaged on contract basis on account of their expertise in a particular field, those who are so employed are free to leave, or be asked to leave by the employer, since contractual appointments work only if the same are mutually beneficial to both the contracting parties, and not otherwise. in the present case, when now the iccr has come to the conclusion that it is not benefiting from the continued contractual deputation of the applicant at iccj, and is rather getting a bad name and spoilt reputation and image, therefore, the applicant cannot be allowed to claim continuation of his deputation. 75.  respondents also cited the case of dr. ajay kumar vs. the management of the national institute of immunology and ors., in which, in wp (c) 2047/1997, the high court of delhi was dealing with the question of stigma attached with the letter of termination of a contractual employee, and had held that when admittedly the service of the petitioner with the respondents was purely on a contract basis, the employer had the full right to terminate the service of the employee, as per the terms and conditions of the employment, and no stigma could be attached to such termination of contract. though the cited case law is not directly applicable in the instant case, since the applicant is not merely a fully contractual employee, and he holds a lien on his substantive post in his parent office even while being on contractual deputation, the law as laid down by the hon’ble high court is clear that there is no stigma attached to the termination of even a fully contractual appointment. 76.  the learned counsel for the respondents also pointed out that even the lok sabha question dy.no.12070 had been raised on 09.05.2012 regarding misbehavior on the part of the applicant with a woman employee, and in providing response to the question, the government was finding it difficult to give a proper reply without the repatriation of the applicant herein. he had therefore prayed that this issue having been raised in parliament also should be taken notice of by this tribunal. 77.  it is seen that the basic pleas raised by the applicant herein were that (a) by the impugned order of his repatriation dated 19.12.2011, his rights under article 311 of the constitution have been affected, and (b) that the further clarification issued on 18.01.2012 by way of corrigendum, based upon sub clause-c of clause-4 of the agreement dated 09.01.2011, which he had signed in pursuance of the appointment letter dated 13.09.2010 issued by the iccr to his official superior regarding his appointment, could not have been issued at all. the applicant has further challenged in oa no.156/2012 (c) the issuance of the warning letter to him on 23.09.2011, which, according to him, could not have been issued to him without a full-fledged departmental enquiry being conducted against him, and giving him an opportunity of being heard and cross-examining the witnesses, as per the provisions of the ccs (cca) rules, 1965, by which he continues to be governed even during the period of his deputation with the iccr on contractual basis at icc johannesburg. the next main contention of the applicant is (d) regarding mala-fides on the part of ddg, iccr. next, (e) the issue of contempt has to be considered by us. and lastly (f) the competence of the iccr to take the decision regarding the applicant's repatriation has to be examined by us. 78.  on the other hand, the basic stand of the respondents is that (x) the applicant is a permanent employee of the ministry of home affairs and his permanent employment is in no way being affected by any of the actions of the respondents, including the termination of his contract, and his recall back to india, and that therefore the provisions of article 311 of the constitution are not attracted in the instant case. their further contention is that (y) the applicant had sought deputation with the iccr, while continuing to retain his lien against his permanent post in the central translation bureau, under the ministry of home affairs, which was approved by the iccr, and for the purposes of providing diplomatic immunity and diplomatic passports during the period of his posting at johannesburg, it was further approved by the mea’s foreign service board, and the hon’ble minister for external affairs. their contention is that the appointment letter dated 13.09.2010 was issued addressed to the official superior of the present applicant, intimating him the terms and conditions on which it was proposed to offer the deputation to the present applicant, subject to his signing the contract with the iccr to this effect, since the iccr is an independent society, and is only an extended arm/limb of the ministry of external affairs. their further contention is that (z) the applicant signed the contract with the iccr society on 19.01.2011 knowingly and willingly, with open eyes, without any kind of duress, before he proceeded to johannesburg for joining as director, iccj for a three years deputation period, which could have been prematurely curtailed by any of the two sides, either by the applicant himself by giving three months notice, or by the respondents by giving three months notice, or upto three months salary in lieu of the full or the balance of the three months notice period, as the case may be. 79.  we have considered the detailed arguments submitted by the learned counsel for the applicant, and the learned counsel appearing for respondents no.1 and 3 and respondent no.2 of oa no.4640/2011 and oa no.156/2012, and respondents no. 1 and 4 and respondent no.2 in oa no. 313/2012. no separate advocate put in his appearance on behalf of the private respondent no.3 shri anwar haleem, ddg,iccr in respect of oa no. 313/2012. 80.  after considering and weighing the rival contentions, and the lengthy arguments of the learned counsel of the applicant, the applicant’s first contention in para 77(a)/above that the provisions of article 311 are attracted in the instant case, does not appeal to us at all. the protection of the provisions of article 311 would have been available to the applicant only if his services as a permanent government servant were likely to be affected, which they are not. the applicant cannot also seek shelter behind the article 311 of the constitution of india, since he has neither been dismissed nor removed from the permanent service which he holds under the union of india, ministry of home affairs, nor has he been reduced in rank. the applicant is a permanent government servant, and continues to be so with the union of india. therefore, the first basic plea of the applicant (para 77(a) above) that his rights under article 311 of the constitution have been affected, or trampled upon by the respondents, does not stand to reason, and is therefore rejected. 81.  as regards his second basic plea (para 77(b)/above), the status of the applicant within the iccr can be described in two fold manner, firstly, his status is that of a deputationist to iccr from the central translation bureau, ministry of home affairs, and secondly that of a contractual employee of iccr, because such deputation of his to iccj for a period of three years is governed by the express provisions of a contract dated 19.01.2011, which had been entered into by the applicant willingly, knowingly, and with open eyes before he signed the contract. 82.  surprisingly, however, in oa-313/2012, in para 5.10 of the oa, the applicant himself has prayed for the contract dated 19.01.2011 itself to be declared illegal. since his deputation with iccj at johannesburg itself was an outcome of that contract entered into by the applicant with the iccr, in case his prayer in that oa for declaring the contract itself as ultra-vires is accepted, then automatically the contract would stand terminated, and the applicant would revert to his substantive post in the ministry of home affairs, which he is otherwise opposing. 83.  the applicant has also tried to take shelter behind the so called appointment letter dated 13.09.2010, and has tried to state that that appointment letter did not contain the provisions of the option of his repatriation at three months notice, or salary in lieu of the notice or balance notice period, being decided by the iccr as per sub clause-c of clause-4 of the agreement, and, that therefore, the agreement is void. however, we cannot but notice that even though the letter dated 13.09.2010 was called an appointment letter, since the applicant was already in government employment, and it was not a case of a fresh appointment, it was not a letter addressed by the iccr to the applicant herein before us, but was a letter addressed to his official superior shri rakesh kumar, director, central translation bureau, informing him that on the application of one of the employees working under him, i.e., the present applicant, his candidature had been approved by the foreign service board, and by the hon’ble minister for external affairs, after his selection by the iccr, for the purposes of joining on the deputation post of director, icc at johannesburg. a copy of this letter was however marked to the applicant, and he was directed to communicate his concurrence or acceptance of the broad terms and conditions contained in that letter, so that the necessary contract could be entered into with him by the iccr. 84.  as a result, the second basic plea raised by the applicant (at para 77(b)/above) can be answered by stating that while it is clear that none of the rights of the present applicant as a permanent government servant could be altered or reduced by the respondents, either by way of the conditions as contained in the so-called appointment letter dated 13.09.2010 sent to his official superior, or by the agreement dated 19.1.2011 signed by the applicant himself with the iccr, these two could, however, certainly govern the status and the nature of the three years deputation tenure, which the iccr had agreed to grant to the applicant before us. therefore, any clarification issued under the terms of the contract/agreement, which had been signed by the applicant himself, cannot be declared ultra-vires, as the applicant has now prayed, and the plea at para 77 (b)/above fails. at the same time, the second contention of the respondents (at para 78 (y)/above) is therefore upheld that the applicant is bound by the terms of the agreement signed by him. 85.  detailed submissions were made by the applicant’s counsel during the arguments regarding the numerous allegations and counter allegations regarding a number of india based teachers deputed to iccj, the consideration of which led to the issuance of the warning letter to the applicant on 23.09.2011 (para 77(c)/above). in this case, we do not consider it necessary to go into the factual aspects of any of those complaints or counter complaints. the fact of the matter is that complaints were there, and a senior officer of the iccr, of the rank of dy. director general, equivalent to a joint secretary, govt. of india, was deputed to conduct a fact-finding preliminary enquiry in respect of those allegations and counter allegations, that he visited johannesburg from 9th august to 12 august 2011, and gave his report, the findings of which have already been reproduced in para 58/above. 86.  as per another confidential note recorded by the said ddg, iccr shri anwar haleem, which was produced by the respondents before us, when he had reached johannesburg, he spent two hours on the same night with the applicant, when the applicant spoke about all the issues concerned, and also gave his view points. the ddg iccr and the present applicant again had an inter-action on 11.08.2011 (afternoon), when the applicant visited the consulate general of india (cgi, in short) at johannesburg, and the record of that discussions had been recorded by one shri chauhan, an india based official at the cgi at johannesburg, which has been produced before us. on 11.08.2011, the ddg (iccr) visited iccj for more than 3 hours along with the applicant. the assistance of the present applicant was also sought in arranging witnesses such as shri joshi and shri rastogi. before leaving johannesburg, the ddg (iccr) again paid a visit to iccj, and in that meeting/discussion also the applicant again repeated his view point and spoke out his mind. 87. it is seen that the point of view of the applicant was appreciated at that point of time, and even the respondent no.3 - shri anwar haleem, ddg, iccr, during the course of his preliminary inquiry, too upheld the view point of the present applicant. the tabla teacher, who was not proving to be amenable to discipline at the hands of the applicant herein, was repatriated forthwith, which shows the bona-fides of the respondents. 88.  when it was decided by the respondents to immediately recall the tabla teacher, who was not considered to be amenable to discipline under the present applicant, at the same time the applicant was also issued a letter of warning through letter dated 23.09.2011, warning him to improve his performance. the immediate challenge to his authority in the form of the tabla teacher having been removed, and his having been let off only with a warning to improve his performance in future, the applicant acquiesced to the issuance of that warning, and did not even protest against the issuance of such a warning to him for a full period of three months thereafter. 89.  it was only in the month of december, 2011 that the applicant sent a letter of protest against that letter of warning dated 23.09.2011, and much after having filed his first oa no.4640/2011 on 26.12.2011, against the order of termination of his deputation with iccr and recalling him back to india passed on 19.12.2011, only as an afterthought, he also challenged the said warning letter issued to him on 23.09.2011 through the second oa no.156/2012 filed on 13.01.2012. therefore, we do not find any merit in the third main plea raised by the applicant (para 77 (c)/above), which gets defeated by the application of the principle of acquiescence. 90.  further, it is quite clear that the allegations of malafide raised belatedly by the applicant against shri anwar haleem, ddg, iccr, (para 77(d)/above), cannot also be sustained at all, because he had neither raised these issues soon after the visit of the ddg to iccj in august, 2011, nor in his first oa no.4640/2011, nor in his second oa no.156/2012 assailing the issuance of warning to him on the basis of the report of the said ddg iccr. he has chosen to rake up these issues of malafide against the private respondent no.3 only much afterwards, as a result of which his third oa no.313/2012 was filed. therefore, the contention of malafide against shri anwar haleem, ddg, iccr, attempted to be foisted by the applicant in oa no.313/2012, para 77(d)/above, is also rejected. 91.  we have to examine the plea of contempt arising out of oa no.313/2012 (para 77(e)/above), in which the applicant has submitted that iccr, respondent no.2 in all the three oas, and the learned counsels appearing for the union of india and iccr, had tried to mislead the tribunal by making wrong submissions on behalf of the high commissioner of india at pretoria, and has produced numerous letters addressed by the incumbent high commissioner, and the people working under him, to the iccr and to the mea, favouring the case of the applicant. but it appears to us that the applicant herein cannot be allowed to derive any benefit out of any internal correspondence which takes place between the high commissioner of india and his official superiors in the ministry of external affairs, or with his equivalent officers in the iccr. as a respondent named in all the three oas, and after service of notice upon him, the high commissioner has not chosen to file any affidavit or pleadings before this tribunal in any of these three oas. therefore, those are at best the personal views of an incumbent officer, or a particular set of officers, and may not constitute the official view of the chair of the high commissioner, which cannot have a stand different than that of his superiors in the mea. 92.  it must be further stated that there is a difference between the office and the officer. an office, or a chair in that office, may come to be occupied by any officer who may be posted to perform the functions associated with that office or chair, but the individual views of that incumbent officer do not matter at all, if they have been over-ruled subsequently by any officer or authority superior to him in the official hierarchy. decisions in the governmental system are taken by order and in the name of the president of india, and individual opinions expressed during internal correspondence or nothings on the note-sheets travel in the official hierarchical system up to the level which may be the final level for taking a particular decision, as per the delegation of powers issued under article-73 of the constitution of india. in such a decision making process, the views of an individual officer, who is just a cog in the wheel, matter only in so far as whether he is able to convince his immediate official superiors with his views, nothings, submissions, communications, letters and the arguments contained therein, or not, but if he gets over-ruled by his superiors, nobody can be allowed to later on cite that officer’s personal views or opinions, because the official view would ultimately be only that view which has been upheld by the highest authority concerned in the decision making process, as per the prescribed delegation of powers. 93.  in this particular case, it is quite obvious from the documents and correspondence as produced by both the sides, and files submitted for our perusal by the respondents, that the present incumbent high commissioner of india at pretoria, who was the immediate previous director general of iccr also, holds the present applicant in high esteem, and has left no opportunity to try to plead with the authorities within the iccr and within mea at new delhi not to disturb the present applicant from his deputation post at the iccj. however, as discussed above, that view would remain the individual view of the concerned incumbent officer, and cannot be stated to be the view of the institution. the institutional view can only be that which has been taken by the highest authority to whom the powers have been delegated within the government for the purpose of exercise of delegated powers of the president of india. therefore the plea of contumacious act on the part of respondents 1 and 2 of the three oas., as raised in the contempt petition no.407/2012 also separately, of their having made incorrect submissions before this tribunal cannot be sustained. 94.  while considering the applicant’s contention at para 77 (f)/above, we have to consider that the iccr is a society and not the government. at best, it is a limb of the government, to which government officials are sent on deputation, and who later return back to the government. the iccr has its own set of rules, by-laws and regulations, under the societies registration act, 1868, and it has a highly eminent person, most knowledgeable about cultural affairs, as its president. the decision making process in iccr is, therefore, independent of the decision making process within mea, even though technically it is an attached office of the ministry of external affairs. 95.  iccr had taken the applicant on deputation, which had to be approved by the foreign service board in mea only for the purpose of grant of diplomatic status and associated facilities to the applicant. but, by virtue of that, it was not that the applicant had got deputed to the ministry of external affairs from the ministry of home affairs, rather than having been deputed to the iccr. the mere fact that for the purposes of immediate superintendence over the functioning of the icc at johannesburg, the consul general of india at johannesburg, and the high commissioner of india at pretoria, had been entrusted by the iccr the additional responsibility of keeping a watch over the activities of the iccj, did not mean that the applicant became a deputationist either to the consulate general of india at johannesburg, or to the office of the high commissioner of india at pretoria. the applicant continued to be a deputationist with the iccr, at its indian cultural centre at johannesburg, in terms of the specific contract which he had signed for such deputation on 19.01.2011, which could not have gone beyond the broad parameters of the protection of the applicants basic service conditions, as indicated to the applicants official superior through the so called appointment letter dated 13.09.2010. 96.  the term deputation has been dealt with by the hon’ble courts in a number of cases. in the case of state of mysore vs. m.h. bellary air 1965 sc 868; 1964 (7) scr 471; 1966 (1) llj 50, the hon’ble supreme courts findings can be summarized as follows:- “service on deputation in another department is treated by rule as equivalent to service in the parent department. so long, therefore, as the service of the employee in the new department is satisfactory, and he is obtaining the increments and promotions in that department, it stands to reason that satisfactory service, and the manner of its discharge in the post which he actually fills, should be deemed to be rendered in the parent department also, so as to entitle him to promotions which are open on seniority-cum-merit basis”. (emphasis supplied) 97.  it is clear that in the instant case, the applicant has been found to have been wanting in the manner of discharge of his duties of the post which he actually fills while on deputation. therefore, his case is entirely covered by the above observations of the hon’ble apex court, and the respondents can take into consideration the manner of discharge of his duties by the applicant. 98.  further, in the case of state of mysore vs. p.n. nanjundaiah; 1969 slr 346; 1969 (3) scc 633; air 1968 sc 1113, the hon’ble supreme court had further clarified the same point in deciding that in the case of service on deputation being satisfactory, an employee gets his right of promotion in the parent department. therefore, it follows that unsatisfactory performance while being on deputation can be held against a deputationist, as has happened in this case. 99.  it is, therefore, clear that the rights of deputationists differ from those of the direct appointees, and since deputation involves three voluntary decisions, of (a) the lending authority, (b) the borrowing authority, and (c) the employee concerned, in all this while, when the present applicant has continued to maintain his lien in his parent ministry, in the case any of these three voluntary decisions of either (a) the lending authority, or (b) the borrowing authority, or (c) the employee concerned is reversed, he can always be reverted back from his status of a deputationist to his parent cadre/ministry, subject to the qualification laid down by the hon’ble apex court in the case ‘union of india through govt. of pondicherry and anr’ (supra) that ordinarily the specified terms of deputation should not be curtailed, except on just grounds, for example, unsuitability or unsatisfactory performance. 100. in this particular case, iccr was only the borrowing authority. if in the context of the particular controversy which first arose from june to july 2011, and then once again erupted in december 2011 at iccj, if the iccr has come to a conclusion that the applicant’s performance on deputation was unsatisfactory, and has decided to terminate the deputation of the applicant with the iccr at johannesburg, in order to try to rescue its image in the eyes of the local nris, they cannot be faulted on this account, as has been mentioned above also. 101. the respondents have however committed a mistake of issuing a corrigendum, and perhaps there was no need for it to have been issued, because of the inherent powers already available with the iccr under sub-clause(c) of clause-4 of the agreement signed by the applicant with the iccr before his deputation. so, a corrigendum was unnecessary, but there is no doubt regarding the legal capacity and the powers of the iccr to terminate the deputation of the applicant in the manner as prescribed either in sub clause-(a) of clause-4, or under sub clause (b) of clause-4, or under sub-clause-(c) of clause-4 of the contract of deputation entered into by the applicant on 19.1.2011. 102. the contention of the applicant that such a pre-mature termination of his deputation with the iccj is stigmatic, and he would carry a stigma throughout his life, cannot also be accepted at all.the fact is that when the letter of warning was issued to the applicant on 23.09.2011, a copy was not marked to his substantive employer, the central translation bureau, and, therefore, would not form part of the permanent record of his service. his pre-mature recall/repatriation to india cannot also be called to be stigmatic, because such an action can be taken by the respondents even without a formal finding on the complaint of sexual harassment raised against the applicant, which are under investigation by the concerned committee of mea, under the directions of the national commission for women, as per the case law in the case of ‘dr. ajay kumar’ (supra), already discussed in para 76 above. 103. the applicant does not have any indefeasible right to continue on deputation, which was offered to him as a result of the contract entered into by him with the iccr. at best, it is a defeasible right, and in case of his performance not being found satisfactory, the respondents iccr would always have the right to withdraw their part of the three-fold consents required for continuation of the said deputation. the contention of the applicant at para 77(f)/above in this regard is therefore rejected. 104. in regard to the contention of the respondents at para 78(x)/above, there is no denying the fact that there was some friction in between the applicant and the other india based teachers posted at iccj resulted in the fact-finding preliminary enquiry being conducted by the ddg, iccr. it was not a formal enquiry under ccs (cca) rules, 1965, and no formal opportunity of being allowed to record a submission, or to produce defence witnesses, or to cross-examine prosecution witnesses, was required to be given in such an enquiry.the averments of the respondents that the ddg, iccr, had met the applicant during his stay at johannesburg from 9th august to 12th august 2011, have also remained uncontroverted by the applicant. therefore, it is clear that for the purpose of and during the course of the informal fact-finding enquiry, which was conducted by the ddg, iccr at johannesburg, sufficient opportunity was given to and was availed of by the applicant in putting forth his point of view before the respondent authorities, and that the provisions of article 311 of the constitution are not attracted in the instant case. it is further clear from the fact that even the applicant himself did not consider the letter of warning dated 23.09.2011 serious enough to impugn it in his first oa no.4640/2011 filed on 26.12.2011. it was only nearly one month later, as an afterthought, and after reply having been filed in oa no.4640/2011, that the applicant filed his second oa no.156/2011, impugning the said warning letter, which had by then already run its course, unassailed by the applicant, for more than four months since the date of its issue on 23.09.2011. 105. it is only that something else that must have happened in the functioning of the iccj concerning the present applicant even thereafter, which is apparent from the process resulting in his recall/repatriation back to india. we see that this appears to relate to an incident of an alleged sexual harassment, which appears to have happened on 03.12.2012, about which an email was sent by ms. pratishtha saraswat on that evening itself, at 8.30 p.m., and the applicant himself has also explained about the incident of that date in his averments in oa no.4640/2011 and oa no.156/2012, and has tried to explain away that incident. 106. the applicant has also used all opportunities in these 3 oas to make a lot of allegations against mrs.pratishtha saraswat and her husband, and has also stated that they had made wrong and concocted allegations against him. it is relevant to note that cross allegations of sexual harassment were made by mrs.pratishtha saraswat, which are pending for consideration before the sexual harassment committee of the mea. therefore, it would not be proper for us to go into these allegations and counter-allegations at this stage, specially when the respondents have categorically stated that the applicant was re-called only after looking at his overall performance as director, iccj, which was not found to be satisfactory. 107. the applicant may perhaps be innocent, and may get out unscathed by the allegations of sexual harassment, and the complaint made against him by the national commission for women. but we have to only see whether it is necessary for the iccr to suffer all this muckraking at johannesburg, which may spoil the image of the nation in a friendly foreign country, populated by so many persons of indian origin. to our mind, the further order of recall of the applicant passed by the iccr dated 19.12.2011, was intended to finally put an end or ultimate quietus to the further ongoing muckraking at icc johannesburg. the iccr therefore cannot be faulted for trying to rescue or restore their image in the eyes of the local public at johannesburg, and the nri population in south africa. 108. very strangely, the applicant has also laid a challenge to the capacity of dg, iccr, to file an affidavit on behalf of iccr, saying that he did not have the competence to do so. we dismiss this outrageous contention of the applicant. in a society like iccr, where the highest official functionary is the director general, and the chairman of the society is a very highly respected non-official, the director general certainly has the full competence and the authority to swear and file affidavits on behalf of the iccr. 109. another contention has been raised by the applicant in oa no.313/2012 that by such a recall of him from his deputation, the right to education of his son has been affected. no such right to education, to be educated only in johannesburg, can perhaps lie in favour of the son of the applicant. this is a consequence of the order of recall which he has to face. 110. in the result, the three oas clubbed together in this case fail, and are rejected. the contempt petition no.407/2012 is also dismissed as being not maintainable, as discussed in para 91 to 93 above. the two mas are also disposed off. 111. the applicant was already ordered by iccr to be relieved on 19.12.2011, but he has continued at johannesburg under the protection of the interim orders passed by the tribunal on 27.12.2011. it would now be open to the respondents to pass fresh orders for relieving the applicant from his present deputation posting at iccj within 15 days of receiving a copy of this order. it is made clear that respondents shall give full assistance to the applicant for his return to india as per the proper diplomatic procedure in this regard. there shall be no order as to costs.

Judgment:

Per Mr. Sudhir Kumar, Member (A):

1. These three Original Applications and the Contempt Petition of the same applicant/petitioner, with almost the same set of respondents (except in the last third OA filed on 21.01. 2012 in which the name of the private respondent/Respondent No.3 was added) came to be heard together and are, therefore, being disposed of through a common order.

OA No.4640/2011

2. The applicant of these three OAs is a permanent Central Government employee, in the Central Translation Bureau, Department of Official Language, Ministry of Home Affairs, New Delhi. He responded to an advertisement floated by Respondent No.2, the Indian Council for Cultural Relations (ICCR, in short) for being appointed as Director of the Indian Cultural Centre at Johannesburg (ICCJ, in short) in South Africa. He had earlier worked in a similar capacity under the ICCR itself at Port of Spain. In view of his past experience in the field, his application was viewed favourably, and the ICCR recommended to the Respondent No.1, Ministry of External Affairs (MEA, in short) to approve the appointment of the applicant as Director Indian Cultural Centre at Johannesburg, since without such an approval by the MEA, he could not have been assigned a diplomatic status at Johannesburg, which was essential for the purposes of his functioning there. When, on the recommendations of the Foreign Service Board, such approval was granted by the Hon’ble Minister for External Affairs, the Ministry of External Affairs communicated it to the ICCR.

3. ICCR then issued a letter/offer of appointment/appointment order dated 13.09.2010 (Annexure A-2) addressed to the official superior of the present applicant, indicating the proposed terms and conditions of his deputation to ICCJ, with a copy to the applicant, asking him to confirm the acceptance of those terms, and conditions. Thereafter the applicant communicated his acceptance, signed an Agreement with the ICCR, and soon joined as Director, ICCJ in January 2011. Since his deputation to ICCJ was with the concurrence of his immediate superior Shri Rakesh Kumar, Director, Central Translation Bureau, and his parent Department, his lien against his substantive post is protected during the period of his deputation as Director ICCJ.

4. The applicant has submitted that he organized several cultural events at Johannesburg soon thereafter, and an immensely successful Festival of India in South Africa from June-August 2011. The applicant has submitted that around that time one Ms. Pratishtha Saraswat joined as Yoga Teacher-cum-performer at ICCJ on 27.05.2011, and commenced her yoga classes in the middle of June 2011. Soon thereafter, problems started in between the two, as the applicant has submitted that he tried to discipline Ms. Saraswat, but she developed an enmity against him, and even used the E-mail ID and Password of her colleague Ms. Kamla Dhyani, Vocal Music Teacher of ICCJ, to send a false complaint through email on 03.08.2011 against the applicant herein to the ICCR. The conspiracy being hatched against the applicant was revealed to him by Ms. Dhyani making a complaint against Ms. Saraswat and her husband for hacking her email ID and password to send the complaint dated 12.08.2011 (Annexure A-4) and the reminder dated 09.10.2011 (Annexure A-5) of OA 4640/2011.

5. The Respondent No.2 ICCR took these complaints seriously, and deputed the Dy. Director General (DDG, in short) of ICCR, Shri Anwar Haleem, to Johannesburg from 9th to 12th August, 2011, to ascertain the status of affairs at the ICCJ. On his return, the said DDG submitted his report to the ICCR, and it was examined by the Administration Wing of the organization.

6. The concerned file was ultimately submitted to the President of the ICCR, Dr. Karan Singh, who on 24.08.2011 gave his directions as follows:-

“I have looked through these papers. It is clear that our Cultural Centre in Johannesburg is not functioning effectively. I have also in mind strong views expressed by our High Commissioner in South Africa, Shri Virendra Gupta who was until recently DG of ICCR” .

7. Accordingly, the Respondent No.2 ICCR took follow up action on the report of the DDG, and recalled the Tabla Teacher at ICCJ one Shri Lalit Kumar Dixit, back to India immediately through an order dated 20.09.2011, and an OM dated 23.09.2011 (Annexure A-6) was issued to the present applicant, which stated as follows:-

OFFICE MEMORandUM

Consequent upon continued complaints received from various quarters, concerning you, namely Shri Vinod Kumar Sandlesh, Director, Indian Cultural Centre, Johannesburg, is hereby conveyed that ICCR has taken a very serious view on the complaints and decided that you may be recalled, if your performance does not improve by the end of this year. You have been found lacking in the commitment focusing on Indian Cultural Centre, its resources and people, whether it is establishment of the Centre, it immediate renovation for its projection as an Indian Cultural Centre, organizing classes as per GOI mandate, good relation with your colleagues and teachers and maintain contacts with local educational, cultural and creative organizations. You are advised to be more tactful in handling the resource person who are deputed by ICCR and well utilized their area of expertise while running the Cultural Centre. ICCR have also noted with regret your organizing distasteful functions against Indian ethos. ICCR would be keeping close watch on your activities and conveys you a serious warning that if your performance during the end of this year or if there is any such complaint in any quarter, you may be recalled.

This issues with the approval of competent authorities.

(Emphasis supplied).

8. After receipt of this aforesaid OM dated 23.09.2011, the applicant did not lodge any protest and acquiesced in the same. The applicant was, thus, put on notice by the ICCR that if he is not more tactful in handling the resource persons and organizing classes as per Govt. of India mandate, and in maintaining good relations with his colleagues and teachers, and with the local educational, cultural and creative organizations, and he is not tactful in handling the resource persons, who are deputed by ICCR, and well utilize their areas of expertise, while running the Cultural Centre, and does not refrain from organizing distasteful functions going against Indian ethos, and if his performance till the end of the year does not improve, or if there is any such complaint from any quarter, he may be recalled.

9. About three months thereafter, the Office Order dated 19.12.2011 (Annexure A-1) in OA No.4640/2011 was issued, stating as follows:-

It has been decided to recall Shri Vinod Kr. Sandlesh, Director, India Cultural Centre, Johannesburg immediately. Shri Sandlesh is required to relinquish charge of the post at ICC, Johannesburg immediately and return to India by 31.12.2011 after availing usual preparation time. This issues with the approval of the competent authority.

10.  Immediately thereafter, the applicant approached this Tribunal in OA No.4640/2011 filed on 26.12.2011. This case came up for hearing before the Vacation Bench on 27.12.2011, and noting the submissions of the learned counsel for the applicant, the Vacation Bench ordered for issuance of notice for 29.12.2011, allowing the applicant to serve the notice Dasti, and the Vacation Bench had further ordered that, in the meantime, the respondents would not force the applicant to relinquish the post of Director, ICCJ. After many hearings, on 23.03.2012, the learned counsel for the applicant took an objection that the short counter reply dated 25.01.2012 had been filed only on behalf of Respondent No.2. while no counter reply had been filed on behalf of Respondent Nos. 1 and 3, on which submission, time was extended for the counsel appearing for the Respondents for seeking instructions whether a separate counter reply would be filed on behalf of Respondents No.1 and 3, or not.

11.  The applicant had, in the meantime, filed an MA No.837/2012, praying for directions to the respondents to produce certain documents, and the learned counsel for the respondents submitted that he had no objections for producing those documents, and hence the application for production of the documents before the Bench was allowed and with those directions, the MA No.837/2012 stood disposed of.

12.  The Respondents had also, in the meanwhile, filed an MA No.815/2012 on 21.03.2012, praying for vacation of the stay, but it was decided by the Bench that instead of deciding the MA for vacation of stay, it would be appropriate to decide OA itself finally.

13.  On 12.04.2012, it was submitted on behalf of the respondents that numerous complaints have been received by the Respondents through the National Commission for Women regarding sexual harassment by the applicant, but as a stay has been granted in favour of the applicant, hence they are scared of taking any disciplinary action against the applicant, on the basis of the complaints received after such stay having been granted. A clarification was also sought whether the stay granted earlier would cover the complaints received subsequently or not. The Bench that day went ahead to state that no clarification was required in this matter, and no permanent immunity had been granted to any person to commit any sin, and if a person continued to commit the misconduct, then the respondents would be within their rights to initiate the disciplinary proceedings, and no more clarification is required in respect of the complaints received after filing of the OA. With these directions, the stay was however continued till the next date of hearing.

14.  On 30.04.2012, it was submitted that Respondents No. 1 and 3 are also adopting the counter affidavit already filed on behalf of Respondent No.2, and the case thereafter came to be heard along with the connected OAs at length on 29th and 30th May, 2012, for about 4 to 5 hours.

15.  In his description of the facts of the case in OA No.4640/2011, the applicant had gone hammer and tongs against Ms. Pratishtha Sarswat, and as to how he had called Ms. Pratishtha to discuss various issues in his office at 12 hrs. on 03.12.2011, and had in Paragraphs 4.7 to 4.31 of his O.A. assailed the actions of Ms. Pratishtha Saraswat, and had even filed a copy of the complaint given against him by the said Ms. Pratishtha as Annexure A-9. The applicant had also justified all of his actions as being bonafide actions, to maintain office decorum, and to get the employees to sign the Attendance Register daily through issuance of Office Memorandum dated 23.07.2011 and 06.12.2011 (Annexure A-8). Thereafter, in Para-4.32 to 4.33, the applicant went on to describe the handling of the sexual harassment complaint filed by Ms. Pratishtha against him by the Committee headed by Ms. Banshri Bose, Chairperson, MEA’s Complaint Committee against Sexual Harassment, through video-conference on 13.12.2011. The statements given by the witnesses along with the reply submitted by him were filed by him as Annexures A-10 to A-15, and as proof of his bonafides, a copy of the attendance register maintained by ICCJ was produced as Annexure A-16.

16.  It was submitted that it was only after this that on 19.12.2011, the applicant received the impugned Office Order Annexure A-1, conveying the decision of the ICCR to recall the applicant from ICCJ, and directing him to immediately relinquish charge of the said post.

17.  It seems that the incumbent Officer posted at the post arraigned as Respondent No.3, High Commissioner of India at Pretoria, had in between intervened on behalf of the applicant through his messages addressed to Respondent No.2 dated 13.08.2011 (Annexure A-3) dated 05.10.2011, (Annexure A-3 continued), and thereafter he had again intervened on his behalf, telephonically as well as through his message dated 19.12.2011 (Annexure A-17), and had urged Respondent No.2 ICCR to put its decision to recall the applicant on hold until the findings of the MEA's Complaints Committee against Sexual Harassment are available.

18.  Perhaps in view of this communication, since the ICCJ functions under the overall supervision of the Respondent No.3, the applicant was not relieved, and he submitted a representation to Respondent No.2 regarding the order of recall dated 22.12.2011 (Annexure A-18). On 23.12.2011, through Annexure A-19, the applicant herein received a Fax message, copied also to the Consulate General of India at Johannesburg, and High Commissioner of India, Pretoria, to confirm by written Fax that he had handed over the charge of the post of Director, ICCJ, to the Consul General/Head of Chancery of the Consulate General of India at Johannesburg as appropriate, and in case he had not handed over the charge, he had been asked to do so immediately. He was also asked to confirm his departure schedule. It was three days after this that this OA No. 4640/2011 came to be filed on 26.12.2011.

19.  In their short reply filed 30 days thereafter, on 24.01.2012, the Respondent No.2 had submitted that the applicant has approached this Tribunal suppressing the material facts, and submitted that the terms and conditions of his assignment/engagement as Director ICCJ are governed by the Memorandum of Agreement dated 19.01.2011, which is in the nature of a contract entered into between the Respondent No.2 ICCR, and the applicant herein, and particularly the provisions of Clause-4 (c ) of the said agreement, wherein it is clearly covenanted that the Respondent No.2 ICCR may terminate the services/assignment/engagement of the employee by giving him three calendar months notice in writing at any time during his contractual service under the ICCR, without assigning any cause whatsoever, provided that in lieu of any period of notice provided therein, it may give the employee a sum equivalent to the amount of his pay for the period of three months, or any shorter period if such notice falls short of the period of three months.

20.  It was further submitted that while the applicant had been recalled through the impugned Office Order dated 19.12.2011, a Corrigendum to the said Office Order had been issued on 18.01.2012, which had clarified under no uncertain terms that the order of recall dated 19.12.2011 should be deemed to be an order under clause 4 (c ) of the Memorandum of Agreement dated 19.1.2011 signed between the applicant and the Respondent No.2 ICCR, and a copy of the Agreement was marked as Annexure R-1, and the Corrigendum dated 18.1.2012 was marked as Annexure R-2. It was, therefore, prayed by the respondents that the instant OA preferred by the applicant has become infructuous, and was liable to be dismissed on this ground alone.

21.  The applicant filed a rejoinder to this on 31.01.2012. In this rejoinder, the focus of his attack had shifted from Ms. Pratishtha Saraswat to the DDG, ICCR Shri Anwar Haleem, who had visited ICCJ from 9th August, 2011 to 12th August, 2011. In this rejoinder, the focus of applicant's grouse was also shifted from the impugned Annexure A-1 to the letter of warning dated 23.9.2011 (Annexure A-6). It was submitted that the concerned DDG, ICCR, had visited ICCJ without giving him any intimation, and had then submitted his report to the Respondent No.2, without giving the applicant an opportunity of being heard. It was further alleged that the said DDG, ICCR, had conducted his enquiry in a secretive manner, and no communication was issued to the applicant by the Consulate General of India in connection with the enquiry conducted against the applicant by the said DDG, ICCR.

22.  It was alleged in the rejoinder that the so called Corrigendum dated 18.01.2012, which was not even a document which could have been assailed in the Original Application, was an outcome of malafide and personal vendetta of the said DDG, ICCR, Shri Anwar Haleem. Further objections were taken by the applicant in his rejoinder that the reply filed by the Respondent No.2 cannot be considered, as no separate reply has been filed by Respondent No.1 MEA, which is the Appointing Authority of the applicant. It was further submitted that even the Corrigendum filed by the respondents now could not be taken cognizance of, as the same has not been approved/sanctioned by the Respondent No.1, MEA, which was the Appointing Authority of the applicant. Further ground was taken that the appointment of the applicant as Director, ICCJ was on the recommendations of the Foreign Service Board, duly approved by the Hon’ble External Affairs Minister, and the same cannot be terminated without the permission/approval/consent of the Competent Authority, which is only the Ministry of External Affairs.

23.  It was further alleged that while passing a Corrigendum to the earlier order dated 19.12.2011, the respondents have challenged the authority of the Court, and have ordered the termination of the services of the applicant, who was under protection of this Tribunal. It was further submitted that the appointment order dated 13.09.2010 issued by the Respondent No.2 specifically stated that during the period of his deputation, the applicant would be governed by the provisions of the Indian Official Secrets Acts 1923, and other administrative, conduct and disciplinary Rules, such as CCS (Conduct) Rules, 1964 and CCS (CCA) Rules, 1965. It was submitted that these Rules do not recognize the concept of 'Termination simplicitor', i.e., termination without showing the cause, and invoking sub clause-c of the Clause-4 of the Agreement between the applicant and the Respondent No.2, without taking into consideration the contents of the original appointment order dated 13.09.2010, is contrary to the established law as applicable to Government servants. It was further prayed that in case of initiating any disciplinary action, the CCS (CCA) Rules, 1965, must be scrupulously followed, and the respondents have completely failed to abide by the established provisions of the Rules and Regulations.

24.  It was further alleged that the issuance of Corrigendum dated 18.01.2012 is a classic case of malafide on the part of Respondent No.2, DG, ICCR, since the decision taken is not a 'Termination Simplicitor', but levels serious allegations against the applicant, and the impugned order and its Corrigendum shall always be read against the applicant, and cause him serious prejudice for all times to come.

25.  It was further submitted that sub clause-C of Clause -4 of the Memorandum of Agreement was in the nature of The Henry VIII clause, and was liable to be struck down. It was further denied that the incumbent DG, ICCR, who had sworn to the reply affidavit dated 18.01.2012, was competent to file the short reply which had been filed.

26.  It was further denied that the applicant had suppressed any material facts, and that the terms and conditions of appointment of the applicant are governed only by the Memorandum of Agreement dated 19.01.2011, which was subsequent to the appointment letter dated 13.09.2011, which is self explanatory. It was further denied that sub clause-(c) of Clause-4 of the Agreement can be invoked by the respondents and a Corrigendum can be issued to an order which is already sub judice before the Court, and it was submitted that no such Corrigendum could have been issued without the permission/approval of the Court. However, it was mentioned that the Corrigendum itself has been separately challenged before this Tribunal, and therefore, it was denied that the OA No. 4640/2011 has become infructuous, and is, in any manner, liable to be dismissed, and it was prayed that this Tribunal may confirm the interim order dated 27.12.2011, as the same is necessary for the furtherance of justice.

27.  MA-815/2012 in OA No.4640/2011 had been filed by the respondents on 21.03.2012, praying for vacation of the orders of stay. The respondents had submitted a copy of the notice dated 14.02.2012 received by the Respondent No.2 from the National Commission for Women through which the respondents had been asked to set up an internal complaint committee at ICCR to enquire into the matter of sexual harassment complaint lodged by Ms. Pratishtha Saraswat with the Commission. It was, therefore, prayed that so long as the applicant continues to be In-charge of ICCJ, he will possibly be in a position to influence the witnesses, temper with the documents, and take undue advantage of his position, and, therefore, in view of the interim stay granted by this Tribunal, it will become difficult for the respondents to take necessary follow up action as per the instructions communicated by the National Commission for Women. It was also submitted that in view of the stay operating in favour of the applicant, they are handicapped in taking immediate and appropriate action for initiating the disciplinary proceedings against the applicant.

28.  The applicant had, however, filed a reply to the said MA on 09.04.2012, stating that the said MA was not maintainable. He had further cited a communication sent by the incumbent officer posted as Respondent No.3 to state that the stand taken by the Respondent No.3 is altogether different and rather contrary to the stand taken by the Respondent No.2, and that the respondents are trying to mislead this Tribunal by submitting that a reply filed by Respondent No.2 is on behalf of Respondents No. 1 and 3 also, and that in respect of this, a Contempt Petition had also already been initiated. It was further submitted that the applicant had not filed a rejoinder in this OA, since, as regard the complaint of sexual harassment, it was being already investigated by the Complaints Committee constituted by the Ministry of External Affairs, and it was denied that there is any need to vacate the stay pending the disposal of the OA.

OA-156/2011

29.  The applicant filed his second OA No.156/2012 on 12.01.2012, and after rectification of defects, it was re-filed on 13.01.2012, and was then listed before the Bench on 16.01.2012. In this OA, the applicant had assailed the issuance of the warning Office Memorandum dated 23.09.2011, which he had failed to assail in his first OA No.4640/2011. He had produced a copy of the appointment order issued by the DDG, ICCR (addressed to his superior Shri Rakesh Kumar, Director, Central Translation Bureau) in this OA also, as Annexure A-2, but had still not produced a copy of his Agreement with ICCR, containing the further terms of his deputation. He had further submitted a copy of his report dated 03.10.2011 submitted to the High Commissioner regarding the activities of ICCJ. It is seen that based upon this, on 05.10.2011, the incumbent officer posted as High Commissioner at Pretoria had addressed a Communication to Respondent No.2 on 05.10.2011 (Annexure A-4 in this OA), which was also Annexure A-3 in the earlier OA No.4640/2011. Through Annexures A-6 and A-7, the applicant had tried to demonstrate the actions taken by him for trying to improve the functioning of ICCJ. The wrong actions on the part of the already repatriated Tabla Teacher Shri Lalit Kumar Dixit were produced by him as Annexure A-8 dated 17.07.2011, and his own reply with reference to this dated 26.07.2011 was produced by him as Annexure A-10, as required of him by the High Commissioner through Annexure A-9. The fact that Shri Sujit Chatterjee, Consul at the Consulate General of India, Johannesburg, had been asked by the High Commissioner to conduct urgent investigations, had been pointed out, and the report of Shri Sujit Chatterjee, Consul, CGI, Johannesburg was produced by the applicant as Annexure A-11.

30.  Annexures A-12,A-13,A-14,A-15,A-16,A-17 and A-18 all concerned the interaction between the applicant, and the concerned already repatriated Tabla Teacher and others, between 23.07.2011 to 08.08.2011. Annexure A-19 was the instructions issued by the applicant to Smt. Kamla Dhyani, Classical Vocal Teacher-cum-Performer on 28.07.2011. At Annexure A-20, the applicant had produced a hand written submission of 13 pages by the said Smt. Kamla Dhyani written on 12.08.2011, when the DDG, ICCR, Shri Anwar Haleem, was at Johannesburg, conducting his enquiry. At Annexure A-21, the applicant had produced a copy of the communication sent by the incumbent officer posted as Respondent No.3, High Commissioner, to Respondent No.2 DG, ICCR, on 13.08.2011, supporting the applicants case fully, which was a part of the earlier OA No.4640/2011 also (as Annexure A-3). At Annexure A-22, the applicant had produced his reply dated 16.08.2011 to the complaint made by the said Shri Lalit Kumar Dixit, Tabla Teacher, which in point of time was soon after the return/departure of DDG,ICCR, Shri Anwar Haleem, who had been deputed to Johannesburg to enquire into the status of affairs at the ICCJ. Annexure A-23 was the letter dated 10.12.2011 sent by the applicant, which was his first objection in point of time against the communication to him dated 23.09.2011, conveying serious objections of the ICCR. Annexure A-24 was the interim order of this Tribunal dated 27.12.2011 in his earlier OA No.4640/2011, and Annexure A-25 was a reply given to him by the Public Information Officer of the High Commission of India at Pretoria.

31.  The respondents filed a short reply on 29.02.2012, through an affidavit sworn to by the incumbent officer posted in the chair of Respondent No.2, submitting that the OA was not maintainable for two reasons, namely, (i) warning is not a punishment in terms of Rule-11 of the CCS (CCA) Rules, 1965, and (ii) that the applicant had not exhausted the remedies available to him under Section-20 of the Administrative Tribunals Act 1985, and, therefore, the OA was not maintainable since the Government servant is required to first exhaust departmental remedies available to him before approaching this Tribunal. It was further submitted that in the instant case, the applicant had not even made a representation against the warning issued to him. It was further submitted that the applicant was appointed on deputation for three years but the Competent Authority had all the rights to keep watch on his performance, and that an appropriate warning and advisory note was issued to the applicant asking him to improve, which the applicant had misconstrued as a punishment, and filed the present OA.

32.  It was further submitted that through the warning dated 23.09.2011, a quietus had been given to the entire issue as far as the applicant was concerned, as the Tabla Teacher, Shri Lalit Kumar Dixit, had been recalled, and since the applicant was conscious about the wrongs committed by him, therefore, he did not make any appeal/representation against the warning issued to him on 21/23.09.2011, which was more like an advise to the applicant, and did not curtail any of the benefits of the applicant. It was further submitted in the reply affidavit that the applicant has now challenged that warning letter on baseless grounds, only after issuance of orders of his recall, and if the applicant had not been recalled, perhaps he would not have challenged the warning issued to him concerning the facts of the situation. Any kind of bias on the part of the answering respondent and the President, ICCR, against the applicant was denied, and it was submitted that since the impugned warning dated 23.09.2011 does not amount to a punishment, therefore the present OA No.156/2012 was not maintainable and deserves to be dismissed.

OA 313/2012

33.  On 27.01.2012, the applicant filed another 3rd OA No.313/2012. Through this OA, instead of amending the first OA No.4640/2011, challenging the Office Order dated 19.12.2011 recalling him to India, he had challenged the Corrigendum to that order issued on 18.01.2012 separately in this fresh OA, on the presumption and assumption that the issuance of this Corrigendum dated 18.01.2012 had given him a fresh cause of action. His submission was that when the Original Order itself was under challenge, the Corrigendum could not have been issued without the permission of the Tribunal. Recalling the same set of sequence of events already discussed above while discussing the facts of the case regarding his earlier two OAs namely No.4640/2011 and No.156/2012, the applicant had introduced a few fresh facts for consideration by the Tribunal through paragraphs 4.9 and 4.10 of this OA, explaining as to how he had tried to enlarge the scope of functioning of ICCJ, and bring it on rails. In this OA, for the first time, he had also included Shri Anwar Haleem, DDG, ICCR, as private respondent no.3 with the High Commissioner of India at Pretoria being named as respondent no.4 of this OA. Further through paragraphs 4.30 onwards, he had imputed motives of conspiracy having been hatched by the private respondent No. R-3, against him, and having conducted an inquiry behind his back. It was also alleged that the Corrigendum dated 18.01.2012, which was impugned in this OA, was an outcome of malafide and personal vendetta of private respondent No.3, who was bent upon to recall/terminate the applicant by any means whatsoever, and is a part of the conspiracy against him.

34.  It is not important here to again recount the details of various allegations and counter allegations as repeated by the applicant while describing the facts of this case, as they have already been discussed in brief while describing the facts in the earlier two OAs. In this OA, the applicant had taken a ground that the impugned Corrigendum order was arbitrary and unreasonable, and was liable to be set aside, since it had tried to utilize the powers of ICCR to terminate the employment of any permanent employee by giving him 3 months notice or salary in lieu thereof. It was also submitted that the applicant had been denied a reasonable opportunity to establish his innocence and to defend himself by cross-examining the witnesses produced against him, and by examining himself or any other witnesses in support of his defence, and even an opportunity to make his representation as to why the proposed punishment should not be inflicted on him. It was further submitted that the impugned order is non-est and is liable to be set aside for the additional reason that the appointment of the applicant was on the recommendation of the Foreign Service Board, which was duly approved by the External Affairs Minister, and therefore his appointment could not have been terminated without the permission/approval/consent of the competent authority, which is Ministry of External Affairs in the present case and the other two cases also.

35.  It was also submitted that Article 311 (I) of the Constitution of India states that no person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed, and since ICCR is a subordinate office of the Ministry of External Affairs, it was not competent to pass the impugned Corrigendum. It was further submitted that the decision taken by the respondents is in clear violation of the principle of ‘lis-pendency’ as the impugned order has by-passed the authority and the process of the court.

36.  It was also submitted that by terminating the contract, the ICCR has sought to deprive the applicant of an adequate means of livelihood and thus violated Article 39(a) of the Constitution of India. In taking this ground, the applicant had submitted that even though he is a permanent Government servant, and will get his salary once repatriated to his parent department, but his salary would not be adequate to pay for the fees of his son who is studying in Johannesburg. Further ground was taken that sub-Clause (c) of Clause-4 of the agreement signed by him and the DG ICCR violates Articles 311 (1) and 311 (2) of the Constitution of India, and, therefore, the agreement itself, and the Corrigendum dated 18.01.2012 issued on the basis of that, need to be annulled. It was further submitted that the said Clause 4 (c) does not provide for an opportunity to the employee to take recourse to the law to defend himself, and therefore it is against the principles of natural justice, and contrary to the principle of equality before law, as conferred by the Constitution under Article 14. He had therefore sought for in para 5.10 of this OA for both the agreement and the Corrigendum dated 18.01.2012 to be quashed.

37.  He had taken the further ground that the appointment order issued on 13.09.2010 for ordering and permitting for his deputation did not recognize the concept of 'termination simplicitor' i.e. termination without showing cause, and therefore invoking sub Clause ‘C’ of Clause-4 of the said agreement without taking into consideration para-(k) of the appointment order is contrary to the established law, which para-k of the said appointment order ought to have been followed scrupulously, which the respondents have failed to abide by. It was further alleged that the impugned Corrigendum is liable to be set aside as it is not in consonance with the terms and conditions of the appointment order dated 13.09.2010. He had also once again, through para 5.15 of this OA, sought sub Clause ‘C’ of Clause 4 of the Memorandum of the Agreement dated 19.01.2011 entered into between ICCR and himself needs to be struck down as unfair, un-reasonable and unconciousnable, and obnoxious and oppressive to public conscience, and also harmful and injurious to the public interest, as it tends to create a sense of insecurity in the minds of those to whom it applies, and consequently it is against the public interest, and termed it as The Henry VIII Clause once again.

38.  It was further submitted that there are no guidelines laid down by ICCR to indicate as to who on behalf of the ICCR can exercise the powers under sub Clause ‘C’ of Clause 4 of the Memorandum of the Agreement and in what circumstances. It was further submitted that the impugned Corrigendum order is a classic case of malafide, because the impugned order is not a ‘termination simplicitor’, but levels serious allegations against the applicant, and the impugned order shall always be read against the applicant, and would cause serious prejudice to the applicant for all the times to come, while no opportunity was ever given to the applicant to meet the serious allegations levelled against him before issuing the warning. It was further submitted that the statements and counter statements of various employees of ICCJ had not been taken into account, and the recommendations of the High Commissioner of India, Respondent No.4 in this OA, had not been given due weightage, while undue weightage had been given to the false complaints given by some disgruntled employees.

39.  It was further submitted that while the order dated 19.12.2011 passed by the ICCR was itself arbitrary, prejudiced and malicious, as his duty controlling authorities (High Commissioner and other senior Officers in South Africa) are completely satisfied with the performance of the applicant, further prejudice has been caused to him by issuing the impugned Corrigendum dated 18.01.2012, because it has been passed by the ICCR terminating his assignment without assigning any reason whatsoever. He had further submitted that as he had been appointed as Director, ICCJ, for a term of three years, he had enrolled his son in the University at Johannesburg for Bachelor of Engineering Course, and by terminating his contract, respondents have violated Article 41 of the Constitution of India which provides for 'Right to Education'. He had, therefore, prayed for the following reliefs in this third OA:

1.   That the impugned order No.ICC/566/12/2010 dated 18th January, 2012 be quashed and set aside.

2.   The respondents be restrained from taking any action on the basis of the impugned order No.ICC/566/12/2010 dated 18th January, 2012.

3.   A declaration may be given that Clause 4 sub-Clause ‘C’ of the memorandum of the agreement dated 19.01.2011, entered into between ICCR and an applicant is liable to be struck down being void, unfair, unreasonable and unconciousnable being opposed to public policy and also ultra virus to the provisions of article 14 of the Constitution of India.

4.   Cost of the proceedings be granted in favor of the applicant and against the respondents.

5. Any other relief which this Hon’ble Court deem fit be also be awarded in faovur of the applicant.

40.  He had was also prayed for interim relief as follows:

1.   To stay the operation of the impugned order No. No.ICC/566/12/2010 dated 18th January, 2012.

2.   Restrain the Respondents from taking cognizance of order No.ICC/566/12/2010 dated 18th January, 2012 for any purpose whatsoever.

3.   The respondent be restrained from taking any action on the basis of the impugned order No.ICC/566/12/2010 dated 18th January, 2012.’

41.  This case was heard separately on 30.01.2012 and 01.02.2012. Later on, it was got clubbed for the purposes of hearing with the earlier two OAs of the applicant vide order dated 16.02.2012 onwards. However, the applicant had filed copies of the earlier two OAs 156/2012 and 4640/2011 vide Annexures A-13 and 14 respectively and the interim order passed by the Vacation Bench on 27.12.2011 in OA 4640/2011 vide Annexure A-15. A copy of the agreement between ICCR and the applicant was filed vide Annexure A-17 and the reply filed on behalf of respondent no.2 in OA 4640/2011 was filed vide Annexure A-18. Before the reply could be filed by the respondents, the applicant had filed a copy of order dated 19.12.2011 and the Office Memorandum dated 23.09.2011, which have already been discussed in detail in the cases of earlier two OAs, as a part of this OA also.

42.  In this OA, the respondents filed reply written statement on 29.02.2012. It was submitted that it was a case of termination of agreement in terms of a Clause of the Memorandum of Agreement of a contract signed between the employee and the employer, and the issue raised in the OA is no longer res integra, in view of the authoritative pronouncements of the Apex Court in the case of State of Haryana and Anr. Vs. Satya Narayan Singh Rathore (2005) 7 SCC 518, Binny Ltd. and Anr. Vs. Sadasaivan and Ors. 2005 (6) Scale, and the Hon'ble High Court of Delhi in the case of Dr. Ajay Kumar vs. Management of National Institute of Immunology and Ors. (WP (c) No.2047/1997, decided on 04.07.2011, in which it was held as follows:

For the foregoing discussion and the law laid down, in my view, as per Clause 8 of the Agreement, Management has a right to terminate services without assigning any reason by giving three months notice or salary in lieu thereof’.

43. By way of preliminary objections, it was further stated that this OA is liable to be dismissed only on the ground that the applicant had filed two other OAs also on the same issue. In terms of Section 10 of the CPC, the applicant cannot be allowed to file two parallel Original Applications arising out of the same action of the respondents. In case one OA is decided, the decision of such OA would operate as res judicata in the other OA, and therefore, in such circumstances, it was submitted that the present OA deserves to be dismissed solely on this account, as the applicant cannot be permitted to resort to multiple proceedings just to harass the respondents. It was further submitted that the applicant had failed to point out any infringement of his legal rights as contained in the contract of appointment entered into by him on 19.01.2011 and therefore, the OA filed by the applicant is not maintainable.

44.  It was further submitted that the President, ICCR is the appointing authority for the Directors of ICCs all over the world, and he had approved appointment of 10 Directors, for different Indian Cultural Centres abroad, including that of the applicant as Director, ICC, Johannesburg. It was further submitted that the Foreign Service Board (FSB) of MEA only authorizes the diplomatic status for the foreign postings of such appointees. Going into the facts of the incidents with which we are concerned, it was further submitted by the respondents that from the period of June 2011, a stream of complaints were preferred with the ICCR Headquarters against the applicant regarding his improper behaviour with certain India based teachers deputed to Johannesburg as employees at ICCJ, because of which the competent authority of ICCR had deputed a senior officer to conduct a roving/preliminary inquiry into the said allegations and submit report. On his return, the said officer submitted a report to the concerned authority of the ICCR, which the respondents produced for our perusal.

45.  Based upon that preliminary inquiry by the DDG, ICCR, the President, ICCR, who was appointing authority of the applicant within ICCR decided that the applicant should be let off with a warning, so as to enable him to improve his performance in future. It was submitted that in pursuance thereto, in order to give the entire issue a quietus, the other party involved, i.e. the Tabla Teacher Shri Lalit Dixit, was recalled, and a warning letter dated 23.09.2011 was served on the applicant stating that in the event he did not improve his performance by the end of the year, he shall be recalled. It was further decided later by the ICCR that it would be in the best interest of the country as well as the Diplomatic Mission in South Africa that the ICCJ should remain free from any kind of controversy, which might malign the name of our country, and therefore only the order of recall of the applicant dated 19.12.2011 was issued invoking the terms of sub Clause ‘C’ of Clause 4 of the Memorandum of the Agreement. Later on, since the said orders of recall, calling upon the` applicant to relinquish charge did not specifically mention the provisions of sub Clause ‘C’ of Clause 4 of the contract, a corrigendum dated 18.01.2012 was issued, which was in continuation of the order of recall dated 19.12.2011, and therefore, any illegality in connection with the issuance of the Corrigendum dated 18.012012 was denied by the respondents.

46   The respondents further submitted that in accordance with the recall order dated 19.12.2011, the applicant should have relinquished his charge as Director, ICCJ, and come back to India by the end of December, 2011. However, he did not obey the orders, and delayed handing over the charge, and after some delay he filed OA No.4046/2011 before this Tribunal. After receipt of notice of said OA, the competent authority had re-examined the whole case, and the Corrigendum dated 18.01.2012 came to be issued. It was submitted that the respondents have acted within their powers, and as per the Memorandum of the Agreement signed by the applicant, and the applicant has only mentioned irrelevant facts in his OA, which have no relevance to the issue raised regarding the applicant’s repatriation.

47.  It was submitted that when the applicant had accepted the deputation based upon the terms and conditions as contained in the Memorandum of the Agreement dated 19.01.2011, he cannot now raise any grievance against the execution of the conditions contained in the aforesaid Memorandum of Agreement. The respondents had therefore gone on to explain the procedure for appointment by the ICCR, with prior approval of the MEA, and acting upon independent powers of the ICCR. A Tabla Teacher had already been recalled earlier on the applicant’s complaint, and it was submitted that such recall order does not require any prior approval to be taken by the ICCR from Foreign Service Board of MEA.

48.  It was further submitted that the preliminary inquiry conducted by the respondents-ICCR had found that the applicant is lacking in vision to do any good for the Indian community, and has no experience of implementing cultural projects and its promotion. The report had further noticed that after four months of the applicant's posting, the number of students taking music classes had gone down by 60 to 70%, and therefore, the applicant had no right to continue on the said post, when his performance has not been up to the mark as expected by the ICCR, and he had failed to improve his performance even after notice of warning having been issued to him. It was denied that any stigma is attached, and it was submitted that no illegality had been committed, and that the applicant has been recalled only as per the terms and conditions of the agreement signed by him with the ICCR.

49.  The respondents further defended the private respondent-respondent No.3, DDG, ICCR, stating that the applicant has tried to mislead this Tribunal by giving incorrect facts. It was denied that the respondents have imposed any punishment upon the applicant, or that the order passed for recalling him is either stigmatic, or not based on sound foundations, which would have necessitated them to give a proper notice to the applicant. The allegation of the applicant that the respondents have acted in violation of the principles of ‘lis pendency’ was also denied. It was therefore prayed that since the applicant has not raised any single valid ground, and has not been able to prove that the actions of the respondents are wrong, and the actions do not deserve interference by this Tribunal, hence the OA is liable to be rejected.

50.  The applicant thereafter filed a rejoinder on 21.03.2012. In this, he more or less repeated his submissions made in the OA. He further reiterated that none of the so called complaints against him were ever brought to his notice, nor to his controlling authority, namely the High Commissioner of India in Pretoria, and the Consul General of India at Johannesburg. The status or credibility of the said stream of complaints was never got verified from them. He submitted that he had filed an RTI Application dated 03.01.2012, and was informed by the High Commission and Consulate General of India on 12.01.2012 that no complaint whatsoever was received by those offices against him. It was denied that the private Respondent No. R-3 Shri Anwar Haleem could have conducted a roving/preliminary inquiry, as has been stated by the respondents in their reply, since even before the visit of Mr. Haleem, a detailed inquiry had already been conducted by the High Commissioner, HCI Pretoria, at the request of ICCR, which was communicated vide letter dated 21.07.2011. It was, therefore, submitted that the second inquiry conducted by the private respondent-Respondent No.3, was ill motivated, with malafide intention, and without following the laid down procedure for the conduct of the enquiry under the relevant rules applicable.

51.  It was submitted by the applicant that around 2 = months back he had received a warning letter dated 22.9.2011, in response to which he had made a representation on 10.12.2011 to the respondents. The locusof the respondents in issuing such a warning letter to the applicant to improve his performance was disputed by the applicant in view of the fact that the progressive improvement of the functioning of the newly established/upgraded ICCJ had been appreciated by the local organizations and the High Commissioner, who is the controlling authority of the applicant, and who had appreciated his performance vide his communication dated 19.12.2011. The applicant had cited that on his complaint Mr. Lalit Dixit, the Table Teacher, had already been repatriated, and an inquiry was conducted by Shri S.Chatterjee, a Consular senior officer of Consulate General of India, Johannesburg, in which it was submitted that the complaint against the applicant appears to be baseless and ill motivated, because of which the respondents  ICCR had ordered the repatriation of the said Tabla Teacher. The applicant also placed on record some letters of appreciation received by him from local cultural organisations, individuals and prominent community leaders, besides the appreciation from the High Commissioner of India.

52.  He also submitted that there was no occasion, reason or justification for the respondents to have invoked sub section ‘C’ of Section 4 of the Agreement dated 19.12.2011 for terminating his services. He also submitted that there was no reason further for the respondents to issue the impugned corrigendum on 18.01.2012, when the OA challenging the original order dated 19.12.2011 of his recall was already pending for disposal before this Tribunal. It was further denied that through the issuance of Corrigendum dated 18.01.2012, the services of the applicant with the respondent-ICCR had come to an end. It was denied that there was any misbehavior in the applicant having concealed the factum of execution of agreement dated 19.12.2011 in OA No.4640/2011, and it was submitted that since the order of recall dated 19.12.2011 had not relied upon the agreement, there was no occasion or reason for the applicant to place that agreement on record. It was further submitted that since the High Commissioner of India in South Africa, being the immediate controlling authority of Director, ICCJ, has repeatedly conveyed about the outstanding performance of the applicant to the ICCR, they could not have arrived at a different conclusion. In the result, the applicant had again prayed for the OA to be allowed, in the interest and furtherance of justice, and he had filed documents P-1 to P-9 (pages 196 to 264) in support of his contention.

53.  After the hearing of the case on 10.05.2012, it was adjourned to 22.05.2012. The applicant had filed in the meantime filed a fresh MA No.1461/2012 in OA No.313/2012, seeking permission to file additional documents, in order to bring on record the stand taken by the incumbent High Commissioner of India at Pretoria, which he filed as Annexures A to D (pages 5 to 16 of the MA and running pages 271 to 282). Through this MA, the applicant had tried to prove that the incumbent High Commissioner of India had taken a stand totally contrary to the stand taken by the ICCR, and even though the ICCR was well aware of the stand taken by the incumbent High Commissioner of India, intentionally and deliberately it had not incorporated the stand of the High Commissioner of India in its reply. It was further submitted that the statement made by the learned counsel for the respondents on 30.04.2012 was to try to mislead this Tribunal intentionally and deliberately, with a motive to get a favourable order. He had therefore submitted that he was initiating appropriate contempt proceedings against DG, ICCR, for committing the contempt of the court in this manner, and for interfering in the administration of justice, and thereby committing contempt of court. It was after this, that CP No.407/2012 in OA 313/2012 was filed by the applicant on 21.05.2012.

CP No.407/2012

54. The applicant had filed the Contempt Petition (CP) No.407/2012 in OA 313/2012 on 21.05.2012. In this CP, the petitioner had prayed to initiate contempt proceedings against Respondent No.1 Shri Anwar Haleem, DDG, ICCR, and the Respondent No.2 Shri Suresh Goel, DG, ICCR. From the records as obtained by the petitioner under the RTI Act from the High Commissioner of India at Pretoria, it was revealed to him that an apparently wrong submission was made by the learned counsel for the respondents before the Tribunal on 30.04.2012, that the Respondent No.3 of OA No.313/2012, i.e. the High Commissioner of India at Pretoria, was adopting the affidavit which had been filed by the respondent no.2 of that OA, which statement was not correct, as the Respondent No.3 of that OA, the High Commissioner of India at Pretoria, had never adopted the stand taken by the respondent no.2 ICCR in that OA. It was submitted that through Annexure ‘A’ dated 10.01.2012, and Annexure ‘B’ reply to the same dated 10.01.2012, and Annexure ‘C’, the E-mail sent by the High Commissioner of India at Pretoria to Respondent No.1 as from Shri Shambhu S.Kumaran, Deputy High Commissioner of India on 28.12.2011, the incumbent High Commissioner of India had stated that the categorical stand of the High Commission had been delineated in its earlier report and communication dated 13.08.2011 Annexure ‘D’, which is already annexed in both the OAs Nos.4046/2011 and 315/2012, and the same stand taken had been again reiterated by the High Commissioner in his communication dated 05.10.2011 Annexure ‘E’ of the CP, and Annexure ‘G’ dated 26.12.2011 of the CP.

55.  On the basis of this, the petitioner had stated that it is clearly established that ICCR was well aware of the different stand taken by the High Commissioner of India at Pretoria, and still the ICCR had intentionally and deliberately not incorporated the stand of the High Commissioner of India at Pretoria in its reply filed before this Tribunal in the said OA, and an incorrect statement was given intentionally and deliberately by the learned counsel for the respondents, with the intention to mislead this Tribunal, and that the respondents of the CP had also filed a false affidavit in the Court, claiming that the stand taken by the ICCR is also the stand taken by the High Commissioner of India.

56.  The Petitioner had, therefore, alleged that by filing a false affidavit, supporting a false and misleading reply/counter affidavit/statement, withholding from this Tribunal the different stand taken by the incumbent High Commissioner of India at Pretoria, the respondents had tried to mislead this Tribunal that the stand taken by the ICCR is also the stand of the respondent no.3 of the OA, even though they were well aware that the counter affidavit filed was baseless and misleading. It was alleged that by doing so, the respondents named in the CP had tried to interfere with the administration of justice, withholding the separate views of the Respondent No.3 of the OA, and had given a false statement that the stand taken by the ICCR in the O.A. had been adopted by all the respondents, including by the High Commissioner of India at Pretoria, and it amounts to a contempt of Court. After hearing the counsel in the CP along with three OAs concerned, on 24.05.2012 a direction was issued to the respondents to produce the concerned file, but no notices were issued to the respondents in the CP.

57.  During the course of detailed arguments, learned counsel for the applicant relied upon the various judgments. It is seen that in the case of Union of India through Govt.of Pondicherry and Anr. vs. V.Ramakrishnan and Others. Civil Appeal No.6332/2005; the case concerned with the absorption of deputationists and the Hon’ble Apex Court had ordered as follows:

“Ordinarily, a deputationist has no legal right to continue in the post. A deputationist indisputably has no right to be absorbed in the post to which he is deputed. However, there is no bar thereto as well. It may be true that when deputation does not result in absorption in the service to which an officer is deputed, no recruitment in its true import and significance takes place as he is continued to be a member of the parent service. When the tenure of deputation is specified, despite a deputationist not having an indefeasible right to hold the said post, ordinarily the term of deputation should not be curtailed except on such just grounds as, for example, unsuitability or unsatisfactory performance. But, even where the tenure is not specified, an order of reversion can be questioned when the same is malafide. An action taken in a post haste manner also indicates malice. [See Bahadursinh Lakhubhai Gohil Vs. agdishbhai M. Kamalia and Others,(2004) 2 SCC 65, para 25]”.

[Emphasis supplied]

58.  Thus, while it is true that ordinarily the term of deputation should not be curtailed, but, it was held by the Hon’ble Apex Court itself that it could be curtailed on the ground of unsuitability or unsatisfactory performance, which is the case of the respondents in this case. In this context, the findings arrived at after his enquiry by Shri Anwar Haleem, the DDG, ICCR are relevant to be cited here:-

Finding ICC, Johannesburg presents a sorry state of affairs. It is in mess. The present complaints and other activities have led to a stage where our shortcoming and failures are open to public. The two main parties to the conflict namely Vinod Kumar Sandlesh, Director, ICC and Shri Lalit Kumar Dixit, Tabla Teacher are responsible in equal manners for the present situation. Based on above, I am convinced that Director, ICC, Johannesburg Shri Sandlesh has not performed his assigned job to run the Cultural Centre. It is strikingly rare that all the teachers of a Centre are against there Director. He is neither able to built a team and take work out of it nor he was able to earn their fear and respect. He is also responsible of unable to organize performance, or to maintain the same level of students (leave aside enhancement) as before. It is painful neither that in the last 4 months neither the Centre was formed as a Centre with sign-board, activity configuration, full-filling the spacing norm nor making the Centre visible in its presence. It is painful to see that how a single Director could earn so much adverse remarks from most of the teachers, local Indian community and associations. Similarly, his putting word implicating Foreign Service Officers is makes his whole personality doubtful. The determination and adamancy of all the teachers in reiterating their complaints of harassment etc. leave not much doubt that most of it might have actually happened. The comments of independent community members to the similar team corroborate the complaint. He was a Hindi official and he joined Trinidad and Tobago as Raj Bhasha Adhikari and after completing his tenure he was asked by the High Commissioner to be in-charge of the Cultural Centre. He stayed in Trinidad and Tobago for more than 5 years and later on he was appointed as Director, ICC, Johannesburg. I have found him evasive and vague on issues which require specific response. He is also correctly depicted by an independent community member as a person who has been given a job too big. I am of the view that we need to deals with such situation very firmly otherwise the expansion plan of the Indian Cultural Centres might face similar situations.

I am also of the view in equal measure that Shri Lalit Dixit is irregular in his attendance and undisciplined in his attitude. He should not have sent such complaint to different placed without exhausting local channels fully. Shri Dixit should also have addressed his transportation problem by now as already addressed by other two teachers. He has failed to convince about his plans to promote Tabla in the Centre. He neither fear his Director nor respect him. Similarly, the differences between the Director and Lalit Dixit are beyond reconciliation and they cannot be addressed by counseling or issuing warning. The issue is much larger than that namely to re-establish the credibility of the Centre. I am also of the view that they both deserve equal action to be taken against them for their ill activities and conduct not fit to represent India. I am also of the view that any part implementation or blaming one could further aggravate the problem. I am also of the view that the two other teachers deserve reprimand /warning for their ways and attitude and to be part of this crises playing the game of one up-man-ship. With this I conclude my report and submit it for the examination of DDG(A) as desired by DG, ICCR and to recommend appropriate and suitable penal action’.

(Emphasis supplied).

59.  When the above report of the DDG, ICCR, Shri Anwar Haleem, was considered by the DDG (Administration), he recorded his comments as follows:-

“Subject: Personal issues in ICC, Johannesburg and DDG(I)’s report thereof.

My comments on DDG (I)s report are as follows:-

(a)  Director (ICC) comes across as incapable of running the office. He has not been able to manage personal problems and the general morale of his staff seems to be low for which he should be held responsible. He certainly has not been proactive in handling the personal issues of his staff, and does not come across as a sympathetic person.

(b)  Externally also, he seems to have created a poor impression judging by the comments of various members of the Indian community whose opinion is that the ICC is not contributing anything to Joburg cultural scene.

(c)  Director (ICC) does not seem to have done anything to improve and effectively utilize the facilities available to him, and seems to have neglected even basic and essential details such as putting up a signboard. He is not making good use of the staff available to him, with classes held only on Saturdays, and apparently virtually no activities during the rest of the week. He also seems to have made no effort to tap local resources including those who have been keeping Indian Culture in Joburg before the ICC was opened and organize activities which would make the ICC an active institution. His failure to interact with the Consulate and keep them informed is inappropriate, to say the least. He seems to be acting as an adjunct to the High Commissioner, which is not his primary job. In this context, DDG (I)s comments on the attitude of the HC are very relevant, including the incredible statement that there is no law and order issue in Joburg to the fact that private classes for HC’s family seems to be a major activity of the ICC, which again is not the objective of the ICC.

d) Shri Dixit (the tabla teacher) also clearly comes across as indisciplined and unco-operative, and his behaviour (from the way his complaint was made, to his apparently not making any effort to try and deal with whatever problems he was facing as the other teachers have done, and his attempts to profit from his position by soliciting private tuition opportunities) has been clearly not in keeping with the demeanour expected of an ICC employee.

Based on the information contained in the attached report by DDG(I), some highlights of which I have mentioned above, I would agree with his recommendation that both Director (ICC) and Shri Dixit be relieved of their responsibilities at the earliest possible, before further damage is done to the functioning of the ICC and its image (and the image of ICCR) in Joburg.

I would also like to suggest that it be made clear that officials of the ICC should follow the established chain of command, and report to the High Commission through CGI Joburg.

For consideration, please.’

(Emphasis supplied).

60.  It was only after this that the concerned file was ultimately submitted to the President, ICCR, and he recorded his directions as already reproduced above in para 6/ante, and the rest of the sequence of events followed. Therefore, it appears that the instant case squarely falls within the exception laid down by the Hon’ble Apex Court in the cited case of Union of India through Govt. of Pondicherry and Anr. ’(supra), and therefore the benefit of that cited case cannot be granted to the applicant.

61.  The learned counsel for the applicant had further cited the latest judgment in the case of Ravi Yashwant Bhoir vs. District Collector, Raigad and Ors. Civil Appeal No.2085 of 2012; in which it was reiterated by the Apex Court that even in administrative matters, the reasons should be recorded, as it is incumbent upon the authorities to pass a speaking and reasoned order, by citing Kumari Shrilekha Vidyarthi etc.etc. v. State of U.P. and Ors., AIR 1991 SC 537, in which the Apex Court had observed as under:

"Every such action may be informed by reason and if follows that an act un-informed by reason is arbitrary the rule of law contemplates governance by law and not by humour, whim or caprice of the men to whom the governance is entrusted for the time being. It is the trite law that be you ever so high, the laws are above you.This is what a man in power must remember always.”

62.  From the findings and notings of the DDG, ICCR, who conducted the enquiry, and of the DDG (Administration), ICCR, who considered that enquiry report, as reproduced above, it cannot be said that they had acted according to whims or caprice. The DDG, ICCR who conducted the enquiry had submitted with his enquiry report the Annexures regarding Records of his discussions with Ms. Yvonne Pawlowski (Hatha Yoga Teacher), Ms. Adelaide Lorge, Pranayama Teacher, Ms. Monali Shome (Classical music teacher), Shri Debajit Shome, President of India Club, Johannesburg, Shri Yogesh Chauhan (Tabla Teacher), Dr. Vinod Hassal (Kathak Teacher and Director of R.K. Dance Academy), Ms. Tamara Jikijela, local Clerk, at ICCJ, Mr. Nazeem Pather, Programme Officer at ICCJ, Ms. Jayespree Moopen, Director, Tribhangi Dance Academy, Shri Lalit Kumar Dixit, Tabla Teacher, Smt. Pratishtha Saraswat (Yoga-cum-Kathak Performer), and the record of Interaction with Mr. Sujit Chatterjee, Consul at the Consulate General of India at Johannesburg.

63.  Therefore, since it is apparent that the respondent authorities have not acted merely upon their whims and caprice, the benefit of the observations of Hon’ble Apex Court in ‘Kumari Shrilekha Vidyarthi’s case (supra) cannot also be provided to the applicant before us.

64.  The learned counsel for the applicant cited the judgment in S.N. Mukherjee vs. Union of India AIR 1990 SC 1984; to support his contention that it has been held that the object underlying the rules of natural justice is to prevent miscarriage of justice and to secure fair play in action, and the respondents have committed legal malice. On this, Hon’ble Apex Court had held in this case as follows:

37. This Court has consistently held that the State is under an obligation to act fairly without ill will or malice- in fact or in law.

Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. ‘Legal malice or malice in law means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for purposes foreign to those for which it is in law intended. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law. (See: Addl. Distt. Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207; Union of India thr. Govt. of Pondicherry and Anr. v. V. Ramakrishnan and Ors., (2005) 8 SCC 394; and Kalabharati Advertising v. Hemant Vimalnath Narichania and Ors., AIR 2010 SC 3745).

65.  However, in this case it cannot be said that the respondents did not have any lawful excuse whatsoever to resort to the actions to which they have resorted, or that orders were passed with a depraved inclination, or for unauthorized purposes. Therefore, to our mind, the benefit of this cited judgment in S.N. Mukherjee’s case’ (supra) also does not inure to the applicant in this case.

66.  The learned counsel for the applicant also cited the case of Bhubaneswar Development Authority and Anr. vs. Adikanda Biswal and Ors. (supra) Civil Appeal No.4036-4040 of 2007; Judgment dated 01.02.2012; to state that the Apex Court has held as follows:

“18. The judicial review is not an appeal from a decision, but a review of the manner in which the decision is made and the Court sits in judgment only on the correctness of the decision making process and not on the correctness of the decision itself. The Court confines itself to the question of legality and is concerned only with, whether the decision making authority exceeded its power, committed an error of law, committed a breach of the rules of natural justice, reached an unreasonable decision or abused its powers”

67.  It does not appear to us that the respondents have in the instant case crossed the bounds of law in taking the decisions which have been taken, or that in the eyes of law the decisions have been beyond the terms and conditions of the contract which the applicant had signed, and that the respondents have in any manner been unreasonable to the applicant, or have in any manner acted in abuse of their powers. Since no formal departmental inquiry was instituted or conducted in this case, the applicant cannot also be allowed to assail not having been allowed a formal personal hearing, and production of defence witnesses, and cross examination of prosecution witnesses, and therefore this judgment in ‘Bhubaneshwar’ Development Authority and Anr (supra) also does not come to the benefit of the applicant in this case.

68.  Learned counsel for the applicant also cited the case of Asif Iqbal, IRS vs. Union of India and Anr. WP (Civil) No.11032/2009 in which in its judgment dated 01.09.2009, the Hon’ble Apex Court had in para-5 of the judgment held as follows:

“5. Learned Additional Solicitor General drew our attention to the fact that the deputation of the Petitioner was approved by the Appointments Committee of the Cabinet and his withdrawal from deputation was also approved by the Appointments Committee of the Cabinet for better and efficient working of the Foundation. It was pointed out that a replacement had already taken charge as Secretary on 14th September, 2009 and, therefore, there is no possibility of the Petitioner being permitted to rejoin as Secretary of the Foundation. It was also contended that there is no stigma cast on the petitioner”.

69.  It was the contention of the learned counsel for the applicant that the initial appointment of the applicant having been approved by the Foreign Service Board, his recall order should also have to be approved by the same Board. However, in the instant case, the contention of the respondents that FSB approval was only for the purposes of conferring diplomatic status upon the persons selected for various ICCs abroad by ICCR, and was not an approval of his appointment, since their appointing authority was only the Chairman of the ICCR, appears to be true, and therefore, the benefit of this cited judgment in ‘Asif Iqbal’s case’ (supra) cannot also inure to the applicant.

70.  In their reply arguments, the learned counsel for the respondents had relied upon the case of State of Madhya Pradesh and Ors. v. Ashok Deshmukh and Ors.; AIR 1988 SC 1240; in which the question of malafide had been considered by the Apex Court, and it was held that the allegations of malafides and bias cannot be made in the absence of concrete proof of the same. In the instant cases, it appears to us that the applicant has only as an afterthought, and in a process of gradual improvement of his case, raised the issue of mala fides against private respondent-Respondent No.3, only in his third OA, which afterthought had not occurred to him earlier at any point of time from August 2011. Therefore, the issue of malafides raised by the applicant more than six months after August, 2011, and which was not raised by him in his first OA, or his second OA, cannot be sustained.

71.  Respondents further cited the case law in Kunal Nanda vs. Union of India and Another, (2000) 5 SCC 362; in which the rights of the deputationists for permanent absorption had been discussed by the Hon’ble Apex Court, and it was held as follows:

“6..The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation.

72.  It was submitted by the Respondents that by extension of the above ratio it follows that a person on deputation can be always and at any time repatriated to his parent department to serve in his substantive post therein. Since the present case is not a case of long deputation, or absorption, the cited case law is not directly applicable. However, the law as laid down by the Apex Court is clear that no vested right is created in favour of a deputationist.

73.  The respondents further cited the case of GRIDCO LIMITED and Anr vs.Sri Sadananda Doloi and Ors.: Civil Appeal No.11303 of 2011; decided on 16.12.2001, in which the case concerned termination of the services of the respondents therein, who were appointed with the petitioners therein on contract basis, and whose appointments were terminated on 19.02.2011 with three months salary in lieu of notice being paid to them. In para-26, 27 and 28 of the said judgment, the Hon’ble Apex Court has held as follows:

“26. A conspectus of the pronouncements of this court and the development of law over the past few decades thus show that there has been a notable shift from the stated legal position settled in earlier decisions, that termination of a contractual employment in accordance with the terms of the contract was permissible and the employee could claim no protection against such termination even when one of the contracting parties happened to be the State. Remedy for a breach of a contractual condition was also by way of civil action for damages/compensation. With the development of law relating to judicial review of administrative actions, a writ Court can now examine the validity of a termination order passed by public authority. It is no longer open to the authority passing the order to argue that its action being in the realm of contract is not open to judicial review. A writ Court is entitled to judicially review the action and determine whether there was any illegality, perversity, unreasonableness, unfairness or irrationality that would vitiate the action, no matter the action is in the realm of contract. Having said that we must add that judicial review cannot extend to the Court acting as an appellate authority sitting in judgment over the decision. The Court cannot sit in the arm chair of the Administrator to decide whether a more reasonable decision or course of action could have been taken in the circumstances. So long as the action taken by the authority is not shown to be vitiated by the infirmities referred to above and so long as the action is not demonstrably in outrageous defiance of logic, the writ Court would do well to respect the decision under challenge.”

27. Applying the above principles to the case at hand, we have no hesitation in saying that there is no material to show that there is any unreasonableness, unfairness, perversity or irrationality in the action taken by the Corporation. The Regulations governing the service conditions of the employees of the Corporation, make it clear that officers in the category above E-9 had to be appointed only on contractual basis.

28. It is also evident that the renewal of the contract of employment depended upon the perception of the management as to the usefulness of the respondent and the need for an incumbent in the position held by him. Both these aspects rested entirely in the discretion of the Corporation. The respondent was in the service of another employer before he chose to accept a contractual employment offered to him by the Corporation which was limited in tenure and terminable by three months' notice on either side. In that view, therefore, there was no element of any unfair treatment or unequal bargaining power between the appellant and the respondent to call for an over-sympathetic or protective approach towards the latter. We need to remind ourselves that in the modern commercial world, executives are engaged on account of their expertise in a particular field and those who are so employed are free to leave or be asked to leave by the employer. Contractual appointments work only if the same are mutually beneficial to both the contracting parties and not otherwise.

74.  Though the cited case law is not directly applicable, since the applicant is not merely a contractual employee, and he holds a lien on his substantive post even while being on contractual deputation with ICCJ, what can be borrowed from the cited judgment is that when in the modern commercial world, executives are engaged on contract basis on account of their expertise in a particular field, those who are so employed are free to leave, or be asked to leave by the employer, since contractual appointments work only if the same are mutually beneficial to both the contracting parties, and not otherwise. In the present case, when now the ICCR has come to the conclusion that it is not benefiting from the continued contractual deputation of the applicant at ICCJ, and is rather getting a bad name and spoilt reputation and image, therefore, the applicant cannot be allowed to claim continuation of his deputation.

75.  Respondents also cited the case of Dr. Ajay Kumar vs. The Management of the National Institute of Immunology and Ors., in which, in WP (C) 2047/1997, the High Court of Delhi was dealing with the question of stigma attached with the letter of termination of a contractual employee, and had held that when admittedly the service of the petitioner with the respondents was purely on a contract basis, the employer had the full right to terminate the service of the employee, as per the terms and conditions of the employment, and no stigma could be attached to such termination of contract. Though the cited case law is not directly applicable in the instant case, since the applicant is not merely a fully contractual employee, and he holds a lien on his substantive post in his parent office even while being on contractual deputation, the law as laid down by the Hon’ble High Court is clear that there is no stigma attached to the termination of even a fully contractual appointment.

76.  The learned counsel for the respondents also pointed out that even the Lok Sabha Question Dy.No.12070 had been raised on 09.05.2012 regarding misbehavior on the part of the applicant with a woman employee, and in providing response to the question, the Government was finding it difficult to give a proper reply without the repatriation of the applicant herein. He had therefore prayed that this issue having been raised in Parliament also should be taken notice of by this Tribunal.

77.  It is seen that the basic pleas raised by the applicant herein were that (a) by the impugned order of his repatriation dated 19.12.2011, his rights under Article 311 of the Constitution have been affected, and (b) that the further clarification issued on 18.01.2012 by way of Corrigendum, based upon sub clause-C of Clause-4 of the Agreement dated 09.01.2011, which he had signed in pursuance of the appointment letter dated 13.09.2010 issued by the ICCR to his official superior regarding his appointment, could not have been issued at all. The applicant has further challenged in OA No.156/2012 (c) the issuance of the warning letter to him on 23.09.2011, which, according to him, could not have been issued to him without a full-fledged departmental enquiry being conducted against him, and giving him an opportunity of being heard and cross-examining the witnesses, as per the provisions of the CCS (CCA) Rules, 1965, by which he continues to be governed even during the period of his deputation with the ICCR on contractual basis at ICC Johannesburg. The next main contention of the applicant is (d) regarding mala-fides on the part of DDG, ICCR. Next, (e) the issue of contempt has to be considered by us. and lastly (f) the competence of the ICCR to take the decision regarding the applicant's repatriation has to be examined by us.

78.  On the other hand, the basic stand of the respondents is that (x) the applicant is a permanent employee of the Ministry of Home Affairs and his permanent employment is in no way being affected by any of the actions of the respondents, including the termination of his contract, and his recall back to India, and that therefore the provisions of Article 311 of the Constitution are not attracted in the instant case. Their further contention is that (y) the applicant had sought deputation with the ICCR, while continuing to retain his lien against his permanent post in the Central Translation Bureau, under the Ministry of Home Affairs, which was approved by the ICCR, and for the purposes of providing diplomatic immunity and diplomatic passports during the period of his posting at Johannesburg, it was further approved by the MEA’s Foreign Service Board, and the Hon’ble Minister for External Affairs. Their contention is that the appointment letter dated 13.09.2010 was issued addressed to the official superior of the present applicant, intimating him the terms and conditions on which it was proposed to offer the deputation to the present applicant, subject to his signing the contract with the ICCR to this effect, since the ICCR is an independent Society, and is only an extended arm/limb of the Ministry of External Affairs. Their further contention is that (z) the applicant signed the contract with the ICCR Society on 19.01.2011 knowingly and willingly, with open eyes, without any kind of duress, before he proceeded to Johannesburg for joining as Director, ICCJ for a three years deputation period, which could have been prematurely curtailed by any of the two sides, either by the applicant himself by giving three months notice, or by the respondents by giving three months notice, or upto three months salary in lieu of the full or the balance of the three months notice period, as the case may be.

79.  We have considered the detailed arguments submitted by the learned counsel for the applicant, and the learned counsel appearing for Respondents No.1 and 3 and Respondent No.2 of OA No.4640/2011 and OA No.156/2012, and Respondents No. 1 and 4 and Respondent No.2 in OA No. 313/2012. No separate Advocate put in his appearance on behalf of the private Respondent No.3 Shri Anwar Haleem, DDG,ICCR in respect of OA No. 313/2012.

80.  After considering and weighing the rival contentions, and the lengthy arguments of the learned counsel of the applicant, the applicant’s first contention in para 77(a)/above that the provisions of Article 311 are attracted in the instant case, does not appeal to us at all. The protection of the provisions of Article 311 would have been available to the applicant only if his services as a permanent Government servant were likely to be affected, which they are not. The applicant cannot also seek shelter behind the Article 311 of the Constitution of India, since he has neither been dismissed nor removed from the permanent service which he holds under the Union of India, Ministry of Home Affairs, nor has he been reduced in rank. The applicant is a permanent Government servant, and continues to be so with the Union of India. Therefore, the first basic plea of the applicant (para 77(a) above) that his rights under Article 311 of the Constitution have been affected, or trampled upon by the respondents, does not stand to reason, and is therefore rejected.

81.  As regards his second basic plea (para 77(b)/above), the status of the applicant within the ICCR can be described in two fold manner, firstly, his status is that of a deputationist to ICCR from the Central Translation Bureau, Ministry of Home Affairs, and secondly that of a contractual employee of ICCR, because such deputation of his to ICCJ for a period of three years is governed by the express provisions of a contract dated 19.01.2011, which had been entered into by the applicant willingly, knowingly, and with open eyes before he signed the contract.

82.  Surprisingly, however, in OA-313/2012, in para 5.10 of the OA, the applicant himself has prayed for the contract dated 19.01.2011 itself to be declared illegal. Since his deputation with ICCJ at Johannesburg itself was an outcome of that contract entered into by the applicant with the ICCR, in case his prayer in that OA for declaring the contract itself as ultra-vires is accepted, then automatically the contract would stand terminated, and the applicant would revert to his substantive post in the Ministry of Home Affairs, which he is otherwise opposing.

83.  The applicant has also tried to take shelter behind the so called appointment letter dated 13.09.2010, and has tried to state that that appointment letter did not contain the provisions of the option of his repatriation at three months notice, or salary in lieu of the notice or balance notice period, being decided by the ICCR as per sub clause-C of Clause-4 of the Agreement, and, that therefore, the Agreement is void. However, we cannot but notice that even though the letter dated 13.09.2010 was called an Appointment Letter, since the applicant was already in Government employment, and it was not a case of a fresh appointment, it was not a letter addressed by the ICCR to the applicant herein before us, but was a letter addressed to his official superior Shri Rakesh Kumar, Director, Central Translation Bureau, informing him that on the application of one of the employees working under him, i.e., the present applicant, his candidature had been approved by the Foreign Service Board, and by the Hon’ble Minister for External Affairs, after his selection by the ICCR, for the purposes of joining on the deputation post of Director, ICC at Johannesburg. A copy of this letter was however marked to the applicant, and he was directed to communicate his concurrence or acceptance of the broad terms and conditions contained in that letter, so that the necessary contract could be entered into with him by the ICCR.

84.  As a result, the second basic plea raised by the applicant (at para 77(b)/above) can be answered by stating that while it is clear that none of the rights of the present applicant as a permanent Government servant could be altered or reduced by the Respondents, either by way of the conditions as contained in the so-called appointment letter dated 13.09.2010 sent to his official superior, or by the Agreement dated 19.1.2011 signed by the applicant himself with the ICCR, these two could, however, certainly govern the status and the nature of the three years deputation tenure, which the ICCR had agreed to grant to the applicant before us. Therefore, any clarification issued under the terms of the contract/agreement, which had been signed by the applicant himself, cannot be declared ultra-vires, as the applicant has now prayed, and the plea at para 77 (b)/above fails. At the same time, the second contention of the respondents (at para 78 (y)/above) is therefore upheld that the applicant is bound by the terms of the agreement signed by him.

85.  Detailed submissions were made by the applicant’s counsel during the arguments regarding the numerous allegations and counter allegations regarding a number of India Based Teachers deputed to ICCJ, the consideration of which led to the issuance of the warning letter to the applicant on 23.09.2011 (para 77(c)/above). In this case, we do not consider it necessary to go into the factual aspects of any of those complaints or counter complaints. The fact of the matter is that complaints were there, and a senior officer of the ICCR, of the rank of Dy. Director General, equivalent to a Joint Secretary, Govt. of India, was deputed to conduct a fact-finding preliminary enquiry in respect of those allegations and counter allegations, that he visited Johannesburg from 9th August to 12 August 2011, and gave his report, the findings of which have already been reproduced in para 58/above.

86.  As per another Confidential Note recorded by the said DDG, ICCR Shri Anwar Haleem, which was produced by the respondents before us, when he had reached Johannesburg, he spent two hours on the same night with the applicant, when the applicant spoke about all the issues concerned, and also gave his view points. The DDG ICCR and the present applicant again had an inter-action on 11.08.2011 (afternoon), when the applicant visited the Consulate General of India (CGI, in short) at Johannesburg, and the record of that discussions had been recorded by one Shri Chauhan, an India Based official at the CGI at Johannesburg, which has been produced before us. On 11.08.2011, the DDG (ICCR) visited ICCJ for more than 3 hours along with the applicant. The assistance of the present applicant was also sought in arranging witnesses such as Shri Joshi and Shri Rastogi. Before leaving Johannesburg, the DDG (ICCR) again paid a visit to ICCJ, and in that meeting/discussion also the applicant again repeated his view point and spoke out his mind.

87. It is seen that the point of view of the applicant was appreciated at that point of time, and even the Respondent No.3 - Shri Anwar Haleem, DDG, ICCR, during the course of his preliminary inquiry, too upheld the view point of the present applicant. The Tabla Teacher, who was not proving to be amenable to discipline at the hands of the applicant herein, was repatriated forthwith, which shows the bona-fides of the respondents.

88.  When it was decided by the respondents to immediately recall the Tabla Teacher, who was not considered to be amenable to discipline under the present applicant, at the same time the applicant was also issued a letter of warning through letter dated 23.09.2011, warning him to improve his performance. The immediate challenge to his authority in the form of the Tabla Teacher having been removed, and his having been let off only with a warning to improve his performance in future, the applicant acquiesced to the issuance of that warning, and did not even protest against the issuance of such a warning to him for a full period of three months thereafter.

89.  It was only in the month of December, 2011 that the applicant sent a letter of protest against that letter of warning dated 23.09.2011, and much after having filed his first OA No.4640/2011 on 26.12.2011, against the order of termination of his deputation with ICCR and recalling him back to India passed on 19.12.2011, only as an afterthought, he also challenged the said warning letter issued to him on 23.09.2011 through the second OA No.156/2012 filed on 13.01.2012. Therefore, we do not find any merit in the third main plea raised by the applicant (para 77 (c)/above), which gets defeated by the application of the principle of acquiescence.

90.  Further, it is quite clear that the allegations of malafide raised belatedly by the applicant against Shri Anwar Haleem, DDG, ICCR, (para 77(d)/above), cannot also be sustained at all, because he had neither raised these issues soon after the visit of the DDG to ICCJ in August, 2011, nor in his first OA No.4640/2011, nor in his second OA No.156/2012 assailing the issuance of warning to him on the basis of the report of the said DDG ICCR. He has chosen to rake up these issues of malafide against the private respondent No.3 only much afterwards, as a result of which his third OA No.313/2012 was filed. Therefore, the contention of malafide against Shri Anwar Haleem, DDG, ICCR, attempted to be foisted by the applicant in OA No.313/2012, para 77(d)/above, is also rejected.

91.  We have to examine the plea of contempt arising out of OA No.313/2012 (para 77(e)/above), in which the applicant has submitted that ICCR, Respondent No.2 in all the three OAs, and the learned counsels appearing for the Union of India and ICCR, had tried to mislead the Tribunal by making wrong submissions on behalf of the High Commissioner of India at Pretoria, and has produced numerous letters addressed by the incumbent High Commissioner, and the people working under him, to the ICCR and to the MEA, favouring the case of the applicant. But it appears to us that the applicant herein cannot be allowed to derive any benefit out of any internal correspondence which takes place between the High Commissioner of India and his official superiors in the Ministry of External Affairs, or with his equivalent officers in the ICCR. As a respondent named in all the three OAs, and after service of notice upon him, the High Commissioner has not chosen to file any affidavit or pleadings before this Tribunal in any of these three OAs. Therefore, those are at best the personal views of an incumbent officer, or a particular set of officers, and may not constitute the official view of the chair of the High Commissioner, which cannot have a stand different than that of his superiors in the MEA.

92.  It must be further stated that there is a difference between the office and the officer. An office, or a chair in that office, may come to be occupied by any officer who may be posted to perform the functions associated with that office or chair, but the individual views of that incumbent officer do not matter at all, if they have been over-ruled subsequently by any officer or authority superior to him in the official hierarchy. Decisions in the Governmental system are taken by order and in the name of the President of India, and individual opinions expressed during internal correspondence or nothings on the note-sheets travel in the official hierarchical system up to the level which may be the final level for taking a particular decision, as per the delegation of powers issued under Article-73 of the Constitution of India. In such a decision making process, the views of an individual officer, who is just a cog in the wheel, matter only in so far as whether he is able to convince his immediate official superiors with his views, nothings, submissions, communications, letters and the arguments contained therein, or not, but if he gets over-ruled by his superiors, nobody can be allowed to later on cite that officer’s personal views or opinions, because the official view would ultimately be only that view which has been upheld by the highest authority concerned in the decision making process, as per the prescribed delegation of powers.

93.  In this particular case, it is quite obvious from the documents and correspondence as produced by both the sides, and files submitted for our perusal by the respondents, that the present incumbent High Commissioner of India at Pretoria, who was the immediate previous Director General of ICCR also, holds the present applicant in high esteem, and has left no opportunity to try to plead with the authorities within the ICCR and within MEA at New Delhi not to disturb the present applicant from his deputation post at the ICCJ. However, as discussed above, that view would remain the individual view of the concerned incumbent officer, and cannot be stated to be the view of the institution. The Institutional view can only be that which has been taken by the highest authority to whom the powers have been delegated within the Government for the purpose of exercise of delegated powers of the President of India. Therefore the plea of contumacious act on the part of respondents 1 and 2 of the three OAs., as raised in the Contempt Petition No.407/2012 also separately, of their having made incorrect submissions before this Tribunal cannot be sustained.

94.  While considering the applicant’s contention at para 77 (f)/above, we have to consider that the ICCR is a Society and not the Government. At best, it is a limb of the Government, to which Government officials are sent on deputation, and who later return back to the Government. The ICCR has its own set of Rules, By-Laws and Regulations, under the Societies Registration Act, 1868, and it has a highly eminent person, most knowledgeable about cultural affairs, as its President. The decision making process in ICCR is, therefore, independent of the decision making process within MEA, even though technically it is an attached Office of the Ministry of External Affairs.

95.  ICCR had taken the applicant on deputation, which had to be approved by the Foreign Service Board in MEA only for the purpose of grant of diplomatic status and associated facilities to the applicant. But, by virtue of that, it was not that the applicant had got deputed to the Ministry of External Affairs from the Ministry of Home Affairs, rather than having been deputed to the ICCR. The mere fact that for the purposes of immediate superintendence over the functioning of the ICC at Johannesburg, the Consul General of India at Johannesburg, and the High Commissioner of India at Pretoria, had been entrusted by the ICCR the additional responsibility of keeping a watch over the activities of the ICCJ, did not mean that the applicant became a deputationist either to the Consulate General of India at Johannesburg, or to the office of the High Commissioner of India at Pretoria. The applicant continued to be a deputationist with the ICCR, at its Indian Cultural Centre at Johannesburg, in terms of the specific contract which he had signed for such deputation on 19.01.2011, which could not have gone beyond the broad parameters of the protection of the applicants basic service conditions, as indicated to the applicants official superior through the so called Appointment Letter dated 13.09.2010.

96.  The term deputation has been dealt with by the Hon’ble Courts in a number of cases. In the case of State of Mysore Vs. M.H. Bellary AIR 1965 SC 868; 1964 (7) SCR 471; 1966 (1) LLJ 50, the Hon’ble Supreme Courts findings can be summarized as follows:-

“Service on deputation in another department is treated by rule as equivalent to service in the parent department. So long, therefore, as the service of the employee in the new department is satisfactory, and he is obtaining the increments and promotions in that department, it stands to reason that satisfactory service, and the manner of its discharge in the post which he actually fills, should be deemed to be rendered in the parent department also, so as to entitle him to promotions which are open on seniority-cum-merit basis”.

(Emphasis supplied)

97.  It is clear that in the instant case, the applicant has been found to have been wanting in the manner of discharge of his duties of the post which he actually fills while on deputation. Therefore, his case is entirely covered by the above observations of the Hon’ble Apex Court, and the respondents can take into consideration the manner of discharge of his duties by the applicant.

98.  Further, in the case of State of Mysore Vs. P.N. Nanjundaiah; 1969 SLR 346; 1969 (3) SCC 633; AIR 1968 SC 1113, the Hon’ble Supreme Court had further clarified the same point in deciding that in the case of service on deputation being satisfactory, an employee gets his right of promotion in the parent department. Therefore, it follows that unsatisfactory performance while being on deputation can be held against a deputationist, as has happened in this case.

99.  It is, therefore, clear that the rights of deputationists differ from those of the direct appointees, and since deputation involves three voluntary decisions, of (a) the lending authority, (b) the borrowing authority, and (c) the employee concerned, in all this while, when the present applicant has continued to maintain his lien in his parent Ministry, in the case any of these three voluntary decisions of either (a) the lending authority, or (b) the borrowing authority, or (c) the employee concerned is reversed, he can always be reverted back from his status of a deputationist to his parent cadre/Ministry, subject to the qualification laid down by the Hon’ble Apex Court in the case ‘Union of India through Govt. of Pondicherry and Anr’ (supra) that ordinarily the specified terms of deputation should not be curtailed, except on just grounds, for example, unsuitability or unsatisfactory performance.

100. In this particular case, ICCR was only the borrowing authority. If in the context of the particular controversy which first arose from June to July 2011, and then once again erupted in December 2011 at ICCJ, if the ICCR has come to a conclusion that the applicant’s performance on deputation was unsatisfactory, and has decided to terminate the deputation of the applicant with the ICCR at Johannesburg, in order to try to rescue its image in the eyes of the local NRIs, they cannot be faulted on this account, as has been mentioned above also.

101. The respondents have however committed a mistake of issuing a Corrigendum, and perhaps there was no need for it to have been issued, because of the inherent powers already available with the ICCR under sub-clause(c) of Clause-4 of the Agreement signed by the applicant with the ICCR before his deputation. So, a Corrigendum was unnecessary, but there is no doubt regarding the legal capacity and the powers of the ICCR to terminate the deputation of the applicant in the manner as prescribed either in sub clause-(a) of Clause-4, or under sub clause (b) of Clause-4, or under sub-clause-(c) of Clause-4 of the contract of deputation entered into by the applicant on 19.1.2011.

102. The contention of the applicant that such a pre-mature termination of his deputation with the ICCJ is stigmatic, and he would carry a stigma throughout his life, cannot also be accepted at all.The fact is that when the letter of warning was issued to the applicant on 23.09.2011, a copy was not marked to his substantive employer, the Central Translation Bureau, and, therefore, would not form part of the permanent record of his service. His pre-mature recall/repatriation to India cannot also be called to be stigmatic, because such an action can be taken by the respondents even without a formal finding on the complaint of sexual harassment raised against the applicant, which are under investigation by the concerned committee of MEA, under the directions of the National Commission for Women, as per the case law in the case of ‘Dr. Ajay Kumar’ (supra), already discussed in para 76 above.

103. The applicant does not have any indefeasible right to continue on deputation, which was offered to him as a result of the contract entered into by him with the ICCR. At best, it is a defeasible right, and in case of his performance not being found satisfactory, the respondents ICCR would always have the right to withdraw their part of the three-fold consents required for continuation of the said deputation. The contention of the applicant at para 77(f)/above in this regard is therefore rejected.

104. In regard to the contention of the respondents at para 78(x)/above, there is no denying the fact that there was some friction in between the applicant and the other India Based Teachers posted at ICCJ resulted in the fact-finding preliminary enquiry being conducted by the DDG, ICCR. It was not a formal enquiry under CCS (CCA) Rules, 1965, and no formal opportunity of being allowed to record a submission, or to produce defence witnesses, or to cross-examine prosecution witnesses, was required to be given in such an enquiry.The averments of the respondents that the DDG, ICCR, had met the applicant during his stay at Johannesburg from 9th August to 12th August 2011, have also remained uncontroverted by the applicant. Therefore, it is clear that for the purpose of and during the course of the informal fact-finding enquiry, which was conducted by the DDG, ICCR at Johannesburg, sufficient opportunity was given to and was availed of by the applicant in putting forth his point of view before the respondent authorities, and that the provisions of Article 311 of the Constitution are not attracted in the instant case. It is further clear from the fact that even the applicant himself did not consider the letter of warning dated 23.09.2011 serious enough to impugn it in his first OA No.4640/2011 filed on 26.12.2011. It was only nearly one month later, as an afterthought, and after reply having been filed in OA No.4640/2011, that the applicant filed his second OA No.156/2011, impugning the said warning letter, which had by then already run its course, unassailed by the applicant, for more than four months since the date of its issue on 23.09.2011.

105. It is only that something else that must have happened in the functioning of the ICCJ concerning the present applicant even thereafter, which is apparent from the process resulting in his recall/repatriation back to India. We see that this appears to relate to an incident of an alleged sexual harassment, which appears to have happened on 03.12.2012, about which an email was sent by Ms. Pratishtha Saraswat on that evening itself, at 8.30 p.m., and the applicant himself has also explained about the incident of that date in his averments in OA No.4640/2011 and OA No.156/2012, and has tried to explain away that incident.

106. The applicant has also used all opportunities in these 3 OAs to make a lot of allegations against Mrs.Pratishtha Saraswat and her husband, and has also stated that they had made wrong and concocted allegations against him. It is relevant to note that cross allegations of sexual harassment were made by Mrs.Pratishtha Saraswat, which are pending for consideration before the Sexual Harassment Committee of the MEA. Therefore, it would not be proper for us to go into these allegations and counter-allegations at this stage, specially when the respondents have categorically stated that the applicant was re-called only after looking at his overall performance as Director, ICCJ, which was not found to be satisfactory.

107. The applicant may perhaps be innocent, and may get out unscathed by the allegations of sexual harassment, and the complaint made against him by the National Commission for Women. But we have to only see whether it is necessary for the ICCR to suffer all this muckraking at Johannesburg, which may spoil the image of the nation in a friendly foreign country, populated by so many persons of Indian origin. To our mind, the further order of recall of the applicant passed by the ICCR dated 19.12.2011, was intended to finally put an end or ultimate quietus to the further ongoing muckraking at ICC Johannesburg. The ICCR therefore cannot be faulted for trying to rescue or restore their image in the eyes of the local public at Johannesburg, and the NRI population in South Africa.

108. Very strangely, the applicant has also laid a challenge to the capacity of DG, ICCR, to file an affidavit on behalf of ICCR, saying that he did not have the competence to do so. We dismiss this outrageous contention of the applicant. In a Society like ICCR, where the highest official functionary is the Director General, and the Chairman of the Society is a very highly respected non-official, the Director General certainly has the full competence and the authority to swear and file affidavits on behalf of the ICCR.

109. Another contention has been raised by the applicant in OA No.313/2012 that by such a recall of him from his deputation, the right to education of his son has been affected. No such right to education, to be educated only in Johannesburg, can perhaps lie in favour of the son of the applicant. This is a consequence of the order of recall which he has to face.

110. In the result, the three OAs clubbed together in this case fail, and are rejected. The Contempt Petition No.407/2012 is also dismissed as being not maintainable, as discussed in para 91 to 93 above. The two MAs are also disposed off.

111. The applicant was already ordered by ICCR to be relieved on 19.12.2011, but he has continued at Johannesburg under the protection of the interim orders passed by the Tribunal on 27.12.2011. It would now be open to the respondents to pass fresh orders for relieving the applicant from his present deputation posting at ICCJ within 15 days of receiving a copy of this order. It is made clear that respondents shall give full assistance to the applicant for his return to India as per the proper Diplomatic procedure in this regard. There shall be no order as to costs.