Was whistle-blower victimised for doing her job?

PMO probe on as officials deny their own records

It could have been just another day at work. For IAS officer Smita Bharadwaj, it turned out to be anything but. The day she blew the whistle on financial irregularities and sought an inquiry, little did Ms. Bharadwaj know she had stirred up a hornet's nest.

Ms. Bharadwaj, a Madhya Pradesh cadre IAS officer, “joined on deputation” as Executive Director of the Synthetic and Rayon Textiles Export Promotion Council in 2009. In the course of her job, she found that the assistant director (Finance) “had taken higher grade pay for himself without taking due approvals which would have financial implications for the SRTEPC,” as stated in the Bombay High Court order.

The move ensured her swift and summary ouster. It provoked a welter of allegations and counter-allegations, an attempt to sully her service record and above all a string of peculiar denials from the government in courts of law. Everything but an official probe into the irregularities she had brought to notice.

“This is a case of a whistle-blower being victimised,” Nitish Bharadwaj, the officer's husband and former MP, told The Hindu.

CAT's opinion

Ms. Bharadwaj was prematurely repatriated; her deputation cancelled on grounds of poor performance. Noting that no explanation was sought before repatriating her, the Central Administrative Tribunal (CAT), where she challenged her repatriation, observed: “It was as if the applicant was seen as a stumbling block against smooth functioning of the SRTEPC and her summary removal from the scene was seen as the solution. That was done.”

The October 8, 2010, order concludes: “ ... we find that the impugned repatriation order is not sustainable in the eyes of law for being illegal.”

The High Court and the Supreme Court upheld the CAT order for reinstating Ms. Bharadwaj. However, till date she has not been reinstated in her position, compelling her to initiate contempt proceedings.

In line with the CAT order, the High Court observed that the Council found Ms. Bharadwaj to be “an inconvenient officer” and sought her “ouster.”

“There is no material on record even to reach a prima facie conclusion that the applicant was proved to be dishonest, high-handed or whimsical in her approach or that while discharging her duties she acted against the interests of the Council.”

Deputation denied, Ms. Bharadwaj's case stood legal scrutiny, but the government went to astonishing lengths to put its foot in its mouth.

Consider this. The Council and the Ministry of Textiles, on whose request Ms. Bharadwaj was deputed, told the courts she was never deputed in the first place. Charging her with “suppressing” facts before the CAT, the Council contended Ms. Bharadwaj was a “direct entrant.”

However, records of the Government of India's (GoI) Ministry of Textiles (MoT) and Department of Personnel and Training (DoPT) obtained under the Right to Information Act by Mr. Bharadwaj prove otherwise.

The “Department has ‘no objection' to the proposed deputation ... for a period of five years,” wrote the DoPT in a letter dated January 23, 2009. An earlier office memorandum of the MoT stated that her “selection procedure” was to be “in conformity with the provision of para 1.2.1 of the Consolidated Deputation Guidelines.”

What's more, Ms. Bharadwaj's salary slip even shows a “deputation allowance,” paid by the SRTEPC every month. And the Council's request letters to the MoT asked for “cancellation of deputation.”

Upholding the appointment as deputation, the CAT noted, “... the sheer fact of her appointment in SRTEPC having been considered and treated as a case of deputation and cadre clearance ... her limited rights as a deputationist cannot be whittled down by the respondents by turning back and saying that hers was not a case of deputation.”

Private company

In another surprising twist, the Council contended that it was a private company. It countered nearly six decades of claims that it was set up by the Union government in 1954.

The nature of the Council is now a matter pending before courts. However, there lies a bizarre prelude of flip-flops whereby the Council is seen to owe allegiance to the GoI and deny it at will.

For instance, a year ago, when Council Chairman Ganesh Kumar Gupta's car was stopped from entering the office premises he shot off a letter to the director of DB Realty (which has the building's ownership rights).

“The Council,” Mr. Gupta said in the letter, “is an all-India apex organisation of around 4,000 exporters set up by the Ministry of Textiles, Government of India.” A copy of the letter dated November 9, 2010, obtained under the RTI, was furnished to the Tribunal.

The phrase ‘Set up by the Government of India, Ministry of Textiles' also finds a proud mention on Mr. Gupta's visiting card. Plus, a list of public authorities downloaded from the MoT's website by Mr. Bharadwaj and submitted to the court includes SRTEPC. Currently, SRTEPC is absent from this list.

In the Supreme Court, however, the Council did a stunning U-turn.

“It may be clarified at this stage that, on account of some oversight in the past, inadvertently, on some of the official documents, including letter-head ... it came to be historically written that it is ‘Set up by the Government of India, Ministry of Textiles',” says the Special Leave Petition filed by the Council on April 4, 2011.

When The Hindu spoke to Vinod Kumar Ladia, current Chairman of the Council, he said: “We are a private company, never set up by the GoI. We are only promoted by the GoI. We were set up under Section 25 of the Companies Act. The GoI does not hold a single share in the company ... She [Ms. Bharadwaj] was sent by the MoT. The matter is sub judice. There are legal points to be decided.”

Annual reports of the Council are tabled in Parliament. Its primary objectives of export promotion are akin to performing a government function for which the Council receives grants. As the courts have observed, it has “multiple trappings of a ‘State'.”

Complaint

Contempt proceedings are under way, in the absence of compliance with the CAT order. In addition, Mr. Bharadwaj has written to the Prime Minister's Office seeking an inquiry against Textile Secretary Rita Menon and the Council, for “an unnecessary legal battle ... [and] wasting of public money and precious time of the judiciary as well as gross misconduct of senior IAS officers.”

Subsequently, in May, the Cabinet Secretariat sought “comments” from Ms. Menon, “on all the allegations levelled in the complaint.”

When contacted over the phone, Ms. Menon refused to comment saying the matter was sub judice. “I can't say anything. I have not heard of the Supreme Court order. I don't wish to say anything about the case,” she said.

It is apparent from the mountain of litigation in the case that the Ministry and the Council, which receives government funds, have spent a colossal amount of time and, expectedly, money in simply undoing their own records.

Refusal to comply

On condition of anonymity, an official from the Ministry said in an emailed response, “[The] government's position on the matter is that the case is sub judice and we have no comments to offer on the subject at this stage.”

“Any publication citing government officials other than the above would be rebutted by the government in the light of the above clarification.”

Mr. Bharadwaj refuted the stand that the matter is sub judice. “It is not. The Supreme Court has dismissed SRTEPC's SLP and its order was served to the MoT. A contempt notice has also been sent,” he said.

Misrepresentation

Smelling a rat in the whole affair, the DoPT, which acted on the MoT's requests for deputation and repatriation, asked the MoT to present the correct facts.

“The contention of the Respondents No. 3 [the MoT], 4 and 5 [SRTEPC] that the appointment of Ms. Smita Bharadwaj is not a deputation does not appear to be fully correct … The Ministry of Textiles is, therefore, requested to discuss the matter with the government standing counsel in Mumbai and apprise the Hon'ble CAT of the factual position,” as per the DoPT's letter obtained under the RTI.

Its internal note sheet dated November 15, 2010, clearly states, “…it appears that Ministry of Textiles has suppressed these documents [obtained under RTI] from the Hon'ble Tribunal and completely misrepresented DoPT.”

The CAT too pulled up the MoT for producing only “part of” the official records. “It does not give us any pleasure,” the CAT observed, “to mention that complete official records have not been produced before us.”

In the wake of the ongoing PMO inquiry, the MoT's position and its vain attempt at suppressing its records have been put under the scanner.

But at the heart of the matter is the question: Was Ms. Bharadwaj victimised for being a whistle-blower?