Delhi High Court Sets Aside CAT’s Order Granting Relief To IFS Officer Charged Of Fraudulently Obtaining Birth Certificate Of Surrogate Child

The Delhi High Court has set aside an order passed by Central Administrative Tribunal (CAT) which had granted relief to an Indian Foreign Service (IFS) officer charged for fraudulently obtaining a birth certificate from Uttar Pradesh and then applying for an Indian diplomatic passport for his child born through an arrangement of surrogacy with a Mongolian national.

A division bench of Justice V Kameswar Rao and Justice Anoop Kumar Mendiratta observed that the order of the Tribunal was unsustainable and liable to be set aside.

On December 2, 2020, CAT had set aside the order of punishment passed by the Disciplinary Authority against the IFS officer.

The officer was imposed with a penalty of reduction to the next lower post for two years, with a bar for promotion during such period. It was also directed that on promotion on the expiry of two years, the reduction to lower post shall not operate to postpone future increments of pay and that the officer shall regain his original seniority in next higher post.

Setting aside the punishment, the Tribunal observed that it shall be open to the Disciplinary Authority to pass a fresh order, keeping in view the findings and observations given by it.

In 2021, the Union of India challenged the Tribunal’s order in High Court. Ruling in its favour, the court observed that there is no finding of the Tribunal that the punishment imposed on the officer had “shocked its conscience.”

“Rather, we feel the punishment imposed by the Disciplinary Authority was on the lighter side, given the position held by the respondent and the allegations and the evidence that have come on record. The order of the Tribunal to the Disciplinary Authority only to impose such punishment which will not come in the way of the entitlement of the respondent to be promoted, is also illegal as the Tribunal could not have prescribed the parameters for the Disciplinary Authority to impose a certain punishment,” the court said.

The IFS officer was issued a charge memo on February 23, 2017, alleging that he had a child through a woman, whom he did not legally marry and that he obtained a birth certificate fraudulently from Bijnor, UP in respect of the child and a passport on its basis.

It was the officer’s case that he had a child through a Mongolian national through an arrangement of surrogacy, without having any illicit relation with her.

In his reply to the charge memo, the officer stated that though he had a birth certificate for the child from United States of America, it became necessary to obtain a birth certificate from an authority in India for obtaining a passport for the surrogate child and that the same was presented for obtaining passport.

He submitted that none of the authorities who issued the certificates ever stated that any misrepresentation or fraud was played and that the charges framed against him were without any basis.

It was also his case that the entire episode was the result of an anonymous letter sent by an employee in a Foreign Embassy who was dismissed for acts of misconduct and that the initiation of the proceedings against him was without any legal or factual basis.

Before the CAT, the officer contended that the chargesheet against him was issued on the basis of an anonymous letter and that such proceedings are not initiated on the basis of anonymous letters.

He also submitted that the proceedings were initiated against him only with a motive to deny him promotion, which had become due at the relevant point of time.

It was contended that the child was born out of surrogacy which was permissible in the USA and no one connected with the process expressed any grievance.

He submitted that it cannot be said that the birth certificate was a fraudulent one, specially when no allegation was made and that he never had any relation outside his marriage, adding that the report of the Inquiry Officer was false.

On the other hand, the Union of India submitted that the officer fraudulently obtained a birth certificate from Uttar Pradesh to conceal the child’s birth and that the certificate showed the place of birth of the child as Chandpur and his spouse as the mother.

It was submitted that the birth certificate was then used by the officer to obtain a diplomatic passport for his child and while doing so, he suppressed the fact that the child had already acquired American nationality and passport.

It was also contended that the laws of surrogacy prevalent in India and abroad have to be considered and thus the Tribunal committed an error in holding that the officer cannot be visited with serious consequences. 

The government also submitted that the Tribunal had no power to suggest the quantum of punishment which falls exclusively within the domain of authority of Disciplinary Authority.

The court observed that the Tribunal had “clearly erred” in setting aside the punishment order against the officer, adding that the scope of judicial review is very limited as has been held by the Supreme Court in a catena of judgments.

“It is only in the eventuality that the finding/decision of the Inquiry Officer / Disciplinary Authority is manifestly perverse or illegal, or if the finding/decision has been arrived at without any evidence, that the Tribunal or even this Court under Article 226 of the Constitution of India can interfere with the decision of the Disciplinary Authority. It is a conceded case that except two charges, charges III to VI have been proved by the Inquiry Officer,” it said.

The bench said the charges against the officer are “very serious in nature” and having been imposed only the punishment of reduction to the next lower post for two years, the Tribunal could not have set aside the penalty.

“Looking from any angle, the order of the Tribunal is unsustainable and the same is liable to be set aside. It is ordered accordingly,” the court said.

Title: UNION OF INDIA & ANR. v. CR

Citation: 2023 LiveLaw (Del) 175