CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH

O.A. No.30/2018 MA No.950/2018

Order reserved on: 01.03.2018 Order pronounced on: 22.03.2018

Hon’ble Mr. Justice Permod Kohli, Chairman Hon’ble Mr. K.N. Shrivastava, Member (A)

Devyani Khobragade, D/o Sh.Uttam Khobragade, R/o B-21, MEA Residential Complex, Chanakyapuri, New Delhi. … Applicant

(By Advocate: Mr. Sachin Chauhan)

VERSUS

1. Union of Through the Foreign Secretary, Ministry of External Affairs, New Delhi.

2. Joint Secretary, CNV, Ministry of External Affairs, New Delhi. … Respondents

(By Advocate: Mr. Rajeev Kumar)

O R D E R

Hon’ble Mr. K.N. Shrivastava, Member (A):

This Original Application (OA) has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 praying for the following main reliefs:

a) Quash and set aside the Memorandum dated 04.03.2015; b) Quash and set aside the UPSC Advise dated 10.02.2017;

2 (OA No.30/2018 MA No.950/2018)

c) Quash and set aside the Show Cause Notice dated 24.03.2017;

d) Quash and set aside the Final Order dated 10.11.2017;

e) Quash and set aside the Order dated 27.11.2017;

f) Pass an order or direction thereby directing the Respondent/MEA to consider the Applicant for her duly merited promotion as per her service records by opening the sealed cover…”

2. The factual matrix of the case, as noticed from the records, is as under:

2.1 The applicant joined (IFS) in the year

1999 through Civil Services Examination conducted by the Union

Public Service Commission (UPSC). She claims that she has been having consistently ‘Outstanding/Very Good’ service records. In support of this claim, she has placed on record some of her Annual

Performance Assessment Reports (APARs) (Annexure A-6 colly).

2.2 The applicant has stated that a number of defamatory articles were published by local newspapers in India in the year 2014, carrying false and tendentious information relating to her personal and professional life. Even false claims, relating to her matrimonial life as also those related to her minor girl children identifying them by name in the newspapers, contrary to the journalistic ethics, were made in the said articles. Her husband’s professional life was also adversely commented upon. These defamatory and degrading articles quoted their sources from within the respondent-Ministry. 3 (OA No.30/2018 MA No.950/2018)

It was also alleged that the applicant has illegally acquired US

Passports for her children. Anguished and hurt by such reports, the applicant requested the Foreign Secretary and Ministry’s

Administration to thoroughly investigate the sources behind the defamatory articles and plug the leak of official and classified information. However, the Ministry chose to ignore her request.

The applicant waited for almost seven months for the Ministry to act. She was, however, assured from time to time by the concerned officers in the Ministry that they would get the source of leaks, from within the Ministry, investigated but nothing happened. In order to put an end to her character assassination by way of media trials and to save her dignity, the applicant gave an interview on

13.10.2014 to Times Now and another one to NDTV on 12.12.2014.

The interviews covered applicant’s dispute with her domestic assistant while she was posted in US as well as the complaints to the US authorities by the said assistant. The interviews also covered the issue of US Passports of her minor children. The applicant claims that the interviews did not deal with any aspects contrary to the interest of and on the contrary, she appreciated the unconditional help and support provided to her by the Government. Following these interviews, the applicant filed a report with the respondent-Ministry as required under Rule 19 (2) of the CCS (Conduct) Rules, 1964. 4 (OA No.30/2018 MA No.950/2018)

2.3 The applicant wrote to the respondent-Ministry on 04.05.2014 and 26.12.2014, requesting to investigate the newspapers leaks against her but no action was taken.

2.4 For her interviews in the Electronic Media, the applicant was issued Annexure A-10 Memorandum/Show Cause Notice dated

29.10.2014, which reads as under:

“MEMORANDUM

A news channel, namely, Times Now telecast an interview with Dr.Decyani Khobragade, Director (TC-II), at 10:30 hours on 14 October 2014. Dr. Khobragade spoke to Time correspondent Ms. Megha Prasad.

2. In the interview, which was of half an hour duration, Dr. Khobragade, spoke about an incident involving her in New York, how she was subjected to physical search by the US Law Enforcing Agency, etc. Dr. Khobragade has been quoted as having stated that “things haven’t moved as such, but I am hopeful that specifically this Government will take it up positively because this is not just my matter, it’s about having a special judicial process against a diplomat.” Dr. Khobragade also informed that there have been certain other developments following which the incident in US on account of which she cannot be posted abroad. She also felt that these issues would get resolved. Apart from giving interview to Ms. Megha Prasad, Dr. Khobragade is stated to have given interview to Mr. Arnab Goswami of Times Now television.

3. Administration has confirmed that Dr. Devyani Khobragade, did not seek prior approval of the Ministry for giving the two interviews on television.

4. As per Rule 9 of CCS (Conduct) Rules, 1964, no Government servant, shall, in any radio broadcast, telecast through any electronic media, or in any document published in his own name or anonymously or pseudonymously or in the name of any other person or in any communication to the press or in any public utterance, make any statement of fact or opinion- which has the effect of an adverse criticism of any current policy or action of the Central Government or a State Government.

5. There are separate decisions under Rule 11 of the Conduct Rules which states that officers specially authorized by the Minister are permitted to meet representatives of the Press and give information. Para 113(2) of the Manual of Office procedure stats that only Ministers, Secretaries and other officers specially 5 (OA No.30/2018 MA No.950/2018)

authorized on this behalf may give information or be accessible to representatives of the Press.

6. By the above act, Dr. Devyani Khobragade has violated the provisions of Rule 9 and 11 of the CCS (Conduct) Rules, 1964. Dr. Devyani Khobragade, Director (TC-II), is hereby directed to provide an explanation within a period of ten days from the date of receipt of this memorandum, as to why disciplinary action should not be initiated against her for not seeking prior approval of the Government for giving interviews to a private television channel failing which further necessary action would be taken against her ex-parte.”

2.5 The applicant replied to the Annexure A-10 Memorandum vide her Annexure A-11 letter dated 07.11.2014 denying the allegations contained in it that she had violated the provisions of Rules 9 and

11 of the CCS (Conduct) Rules, 1964. She also explained that she had told the interviewers that the views expressed by her were entirely her own and not that of the Government and that she would not make any statement of criticism of any policy of the

Government which might be capable of embarrassing the relation between the Government and the Government of any foreign State.

It was also clarified by the applicant that she did not communicate, directly or indirectly, any official document or any classified information during the course of her interviews.

2.6 In the month of December, 2014. the applicant was relieved of her charge and duties and was put under compulsory wait. She remained under compulsory wait until March, 2015, i.e., for about four months. 6 (OA No.30/2018 MA No.950/2018)

2.7 Not satisfied with the clarification of the applicant, the respondents issued impugned Annexure A-1 Memorandum of

Charges dated 04.03.2015 proposing to take action under Rule 16 of the CCS (CCA) Rules, 1965. The statement of imputation of misconduct and misbehaviour enclosed with the Memorandum of

Charges, besides quoting the excerpts of the interview, inter alia, noted as under:

“11. From the interviews given o the media, it is apparent and clear that Dr. Khobragade has

(a) Criticised the Government of India, Ministry of External Affairs;

(b) revealed to the media the action taken/contemplated to be taken by the Ministry of External Affairs which Dr. Khobragade is privy to in view of her official capacity;

(c) projected Government of India, Ministry of External Affairs, being responsible for all her woes;

(d) mentioned that FRRO has advised her that it is permissible for her children to retain dual nationality, i.e., retain both the US and Indian passports which is factually incorrect and misleading. (Ministry of Home Affairs, vide it U.O. No.26030/10/2014-IC.I dated 19.56.2014, has confirmed to the Ministry that as per the Citizenship Act, since her children were born in India, the day the children assumed United States of America citizenship by obtaining United States of America Passport, they ceased to be Indian nationals. A copy of the U.O. of Ministry of Home Affairs is enclosed as Annexure VI); and

(e) given the interview to build media pressure to resolve her legal case.

12. By the above acts, Dr. Devyani Khobragade, Director, has violated Rule 9 (i), decisions of the Government of India under Rule 11, and Rule 19 (i) of CCS (Conduct) Rules, 1964 and thereby exhibited conduct unbecoming of a Government servant violating the provisions of Rule 3 (1)(iii) of CCS (Conduct) Rules, 1964.”

2.8 The applicant replied to the Annexure A-1 Memorandum through her Annexure A-12 letter dated 23.03.2015. She rebutted 7 (OA No.30/2018 MA No.950/2018) the charges point-wise and denied violation of the provisions of Rule

19 of the CCS (Conduct) Rules, 1964, as alleged.

2.9. In the meanwhile, the applicant’s batch was considered for promotion to Grade-III of IFS, i.e., Joint Secretary rank against the vacancy year 2016-17. Her case was not considered for promotion and was kept in a sealed cover apparently due to pendency of the

DE proceedings against her (Annexure A-13), as is evident from

DoPT note dated 01.11.2016 conveying the decision of the

Appointments Committee of Cabinet (ACC) regarding promotion of her batch-mates to the Joint Secretary rank.

2.10 As noticed, hereinabove, the applicant had replied to the impugned Memorandum of Charges dated 04.03.2015 (Annexure

A-1) way back on 23.03.2015 itself but no immediate action was taken by the respondent-Ministry on her reply. Finally, the Ministry on 09.12.2016 made a reference to UPSC, seeking its advice, i.e., after 20 months. The UPSC vide its letter dated 10.02.2017

(Annexure A-18) advised the Ministry to impose a “penalty of reduction to a lower stage in the time scale of pay by one stage for a period of one year” on the applicant. A copy of the advice of the

UPSC was sent to the applicant by the respondent-Ministry vide

Memorandum dated 24.03.2017 calling upon her to make suitable representation against it (Annexure A-3). The applicant submitted 8 (OA No.30/2018 MA No.950/2018) her interim reply / representation against the UPSC advice vide her

Annexure A-19 letter dated 10.04.2017.

2.11 She wrote to the Foreign Secretary for providing her the entire record forwarded to the UPSC for seeking its advice. She also wrote letter dated 21.04.2017 to Minister of External Affairs, i.e., the

Disciplinary Authority (DA) as well on the issue.

2.12 It is the contention of the applicant that no reply to her ibid letters were received and consequently vide her Annexure A-21 letter dated 19.05.2017, she wrote to the respondent-Ministry to consider her interim reply dated10.04.2017 as her final reply.

2.13 Placing reliance on the advice of the UPSC and considering the representations of the applicant against the Memorandum of charges and UPSC advice, the Disciplinary Authority (DA) vide impugned Annexure A-4 letter dated 10/13.11.2017 imposed the penalty of “reduction to a lower stage in the time scale of pay by one stage for a period of one year without cumulative effect and not adversely affecting her pension” on the applicant.

2.14 Aggrieved by the impugned Memorandum of Charges dated

04.03.2015, UPSC advice dated 10.02.2017, Memorandum/Show

Cause Notice dated 24.03.2017, penalty order dated 10.11.2017 and penalty implementation order dated 27.11.2017 (Annexure

A-5), the applicant has filed the instant OA, praying for the reliefs as indicated in para-1 supra. 9 (OA No.30/2018 MA No.950/2018)

3. In support of the reliefs claimed, the applicant has pleaded the following important grounds:

3.1 It is settled law that in case of unexplained and wilful delay in disciplinary proceedings against an officer, denial of due promotion to the said officer will be extremely harsh, unfair and unreasonable.

3.2 The matter was referred to UPSC for its advice on 19.12.2016.

The applicant had replied to the Annexure A-1 Memorandum of

Charges dated 04.03.2015 vide her letter dated 23.05.2015. This would demonstrate that for almost 20 months, the matter was kept in cold storage by the respondents with pre-determined motive of denying promotion to her.

3.3 The UPSC advice was provided to her vide Annexure A-3

Memorandum dated 24.03.2017, i.e., almost after two years of the impugned Annexure A-1 Memorandum of charge dated 04.03.2015.

This long delay has not been explained by the respondents and it has prejudiced her case for promotion.

3.4 Had the respondents decided the case of the applicant within a reasonable period of time or period as mandated by Central

Vigilance Commission (CVC) guidelines, the applicant would have still received her due promotion in spite of the proposed punishment. The penalty order itself in its paras-6 & 7 has taken note of this undue delay adversely affecting the promotional prospects of the applicant. It also notes that the DA tentatively did 10 (OA No.30/2018 MA No.950/2018) not agree with the penalty advised by the UPSC and had proposed the minor penalty of ‘censure’, which would have permitted consideration of the applicant for promotion to Grade-III of IFS.

3.5 The UPSC failed to note that the applicant gave interviews only after her repeated requests to the respondent-Ministry to stop malicious media campaign against her, did not evoke any concrete action at the Ministry’s end. The UPSC also failed to note that the applicant had sent a report, as required under Section 19 (2) of the

CCS (Conduct) Rules, 1964 to the Ministry and hence the interviews could not have been considered as violation of the provisions of Rule 19 (1) of the CCS (Conduct) Rules, 1964. The

UPSC has also failed to point out any single sentence from the excerpts of her interviews which are adversely critical of the

Governmental policy or programme. On the contrary, the applicant during the course of the interviews was always appreciative of the

Government help and assistance to her. The UPSC further failed to note that the applicant’s replies to the questions of the interviewers in regard to her case in USA was nothing else but repetition of

Government’s official position as first told to press by official spokesperson of the Ministry.

3.6 As regards the Passports of her children, the averments of the applicants in the interviews were based on her understanding of the

Passport Act and Citizenship Act and that cannot be called as a 11 (OA No.30/2018 MA No.950/2018) violation of any Conduct rules. The UPSC failed to appreciate that the interviews of the applicant were intended to address libellous news concerning her personal conduct for obtaining passports for her children and her conduct towards her domestic assistance.

Hence, such averments would not fall under the ambit of Rule 19

(1) of CCS (Conduct) Rules. On the contrary, they are permitted under Rule 19 (2) of the Conduct Rules.

3.7 The UPSC advice did not recommend withholding of the applicant’s promotion. However, the delay of two years involved has in fact resulted in withholding of her promotion for two years and thus rendering her to undergo agony of serving under her juniors.

3.8 The Hon’ble High Court of in Joseph D. Kunnappalli v.

Superintendent of Post Offices, [(1970) ILLJ 457], has held that

“in order that the publication may come within the mischief of the rule, it must be an adverse criticism of any current or recent policy of action of the Central Government or a State Government. Mere ventilation of the grievances cannot, in our opinion, amounts to adverse criticism.”

3.9 Since the applicant had almost missed one year of promotion and had, ‘ipso facto’ undergone penalty advised by UPSC, the DA initially had intended to impose the minor penalty of ‘censure’ on her so that she could be promoted to Grade-III. The UPSC advice dated 10.02.2017 has been rendered pursuant to the reference 12 (OA No.30/2018 MA No.950/2018) letter of the Ministry dated 19.12.2016 wherein the intended imposition of penalty had been indicated. This action of the respondent-Ministry is in violation of the guidelines contained in

DoPT OM dated 15.05.2012, wherein it has been clearly mentioned that the DA should not express any opinion regarding the penalty to be imposed on the officer while forwarding a disciplinary case for the advice of the UPSC. The impugned implementation order dated

27.11.2017 (Annexure A-5) is akin to imposition of double punishment on the applicant as her pay has already been reduced by one stage in the time scale for a period of one year and she has been denied promotion to Grade III of IFS (Joint Secretary) which was due to her about 2 years ago.

4. In response to the notices issued, the respondents entered appearance and filed their reply in which they have made the following important averments:

4.1 The applicant gave two interviews to TV channels without seeking approval of the respondent-ministry. She was issued a

SCN dated 29.10.2014 for it. Her reply to the SCN dated

07.11.2014 was not found satisfactory and consequently the DA decided to issue the Annexure A-1 Memorandum of Charges dated

04.03.2015 to her proposing to take action against her under Rule

16 of the CCS (CCA) Rules, 1965 for having violated the provisions of Rule 11, Rule 19 (1) and Rule 3 (1) (iii) (I) of CCS Conduct Rules. 13 (OA No.30/2018 MA No.950/2018)

4.2 The applicant’s reply to the charge memo was received on

23.03.2015 denying the charges. After obtaining the approval of the DA, the matter was forwarded to UPSC vide letter dated

09.12.2016 for its advice for imposition of suitable minor penalty, who vide its letter dated10.02.2017 advised the Ministry that ends of justice would meet by imposing a penalty of “reduction to a lower stage in the time scale of pay by one stage for a period of one year, without cumulative effect and not adversely affecting her pension” on the applicant.

4.3 The applicant was provided a copy of the UPSC advice and was called upon to submit her representation against it vide memorandum dated 24.03.2017. The applicant submitted her interim-representation against the UPSC advice on 10.04.2017 in which she had also requested for providing her the complete case records with a copy of covering note that was forwarded to the

UPSC seeking its advice. She, however, was informed vide memorandum dated 11.05.2017 that there was no provision in the

CCS (CCA) Rules, 1965 to provide any other document at that stage along with the UPSC advice and she was directed to submit her final representation against the advice of UPSC. The applicant vide her email dated 09.05.2017 informed the respondents that her response dated 10.04.2017 (interim-representation) may be treated as her final representation against the UPSC advice. 14 (OA No.30/2018 MA No.950/2018)

4.4 The applicant had sent a letter dated 25.04.2017 to respondent no.2 requesting for the quashment of the Memorandum of Charges and for grant her promotion by opening the sealed cover.

She was informed by the respondents vide note dated 12.07.2017 that the allegations made in her letter dated 25.04.2017 regarding delay in sending her case to the UPSC was misplaced and that she being a Presidential appointee, the disciplinary case against her could be finalized only after taking into consideration the advice tendered by the UPSC and on consideration of her representation thereon.

4.5 On considering the representation of the applicant, the disciplinary authority (DA) tentatively decided to impose the penalty of ‘censure’ which was in disagreement with the UPSC advice. As per the requirement of the provisions under Item No.39 (ii) of

Transaction of Business Rules pertaining to the cases of disagreement with the UPSC in the departmental cases of Group ‘A’ officers, the case was submitted to DoPT for advice. The DoPT vide note dated 09.10.2017conveyed that “the Prime Minister decided to resolve the disagreement between the UPSC and the Disciplinary

Authority (i.e. Ministry of External Affairs) in the disciplinary case against Dr. Devyani Khobragade (IFS:1999), Director, Ministry of

External Affairs by agreeing with the advice of the UPSC for imposing the penalty of “reduction to lower stage in the time scale of pay by one stage for a period of one year”. In accordance with the 15 (OA No.30/2018 MA No.950/2018) ibid advice of the DoPT, the DA imposed the penalty, as recommended by the UPSC.

4.6 The respondents deny receipt of letters dated 04.05.2014 and

26.12.2014 of the applicant which purportedly she had written to the Foreign Secretary. However, an unsigned copy of letter dated

26.12.2014 was found enclosed with the note of the applicant dated

23.03.2017 which she had submitted in response to the charge- memo served to her.

4.7 Regarding the issue of keeping her under compulsory wait, it is stated that the compulsory wait is only an administrative action and not a penalty under the CCS (CCA) Rules, 1965. It is further stated that the respondents had not indicated the penalty intended to be imposed on the applicant while referring the matter to the

UPSC for its advice. Since the DE proceedings were initiated against the applicant under Rule 16 of the CCS (CCA) Rules, the DA had only indicated the intent of imposition of suitable minor penalty without specifying the penalty as such, in its note to the UPSC.

4.8 The applicant’s case for promotion to the grade of Joint

Secretary had to be kept under the sealed cover since she was facing the DE proceedings under Rule 16 of the CCS (CCA) Rules,

1965 when her case was considered by the Competent Authority for promotion along with her batch-mates. 16 (OA No.30/2018 MA No.950/2018)

4.9. The applicant was charge-sheeted one year and eight months prior to the date when she was actually eligible for promotion along with her batch-mates. Thus, it would be wrong to construe that the

Charge Memorandum dated 04.03.2015 was issued to the applicant with any mala fide intention.

5. On completion of the pleadings, the case was taken up for hearing the arguments of the learned counsel for the parties on

01.03.2018. Arguments of Shri Sachin Chauhan, learned counsel for the applicant and Shri Rajeev Kumar, learned counsel for the respondents were heard.

6. The applicant was subjected to disciplinary proceedings purportedly for violation of the provisions of Rule 9 (i), decision of

Government of India under Rule 11 and Rule 19 (1) of the CCS

(Conduct) Rules, 1964. These rules are reproduced below:

“9. Criticism of Government No Government servant shall, in any radio broadcast, telecast through any electronic media or in any document published in his own name or anonymously, pseudonymously or in the name of any other person or in any communication to the press or in any public utterance, make any statement of fact or opinion - (i) which has the effect of an adverse criticism of any current or recent policy or action of the Central Government or a State Government: 34Provided that in the case of any Government servant included in any category of Government servants specified in the second proviso to sub- rule (3) of rule 1, nothing contained in this clause shall apply to bonafide expression of views by him as an office-bearer of a trade union or association of Government servants for the purpose of safeguarding the conditions of service of such Government servants or for securing an improvement thereof; or (ii) which is capable of embarrassing the relations between the Central Government and the Government of any State; or (iii) which is capable of embarrassing the relations between the Central Government and the Government of any foreign 17 (OA No.30/2018 MA No.950/2018)

State; Provided that nothing in this rule shall apply to any statements made or views expressed by a Government servant in his official capacity or in the due performance of the duties assigned to him.”

“11. Communication of Official Information.

Every Government servant shall, in performance of his duties in good faith, communicate information to a person in accordance with the Right to Information Act, 2005 (22 of 2005) and the rules made thereunder : Provided that no Government servant shall, except in accordance with any general or special order of the Government or in performance in good faith of the duties assigned to him, communicate, directly or indirectly, any official document or any part thereof or classified information to any Government servant or any other person to whom he is no authorized to communicate such document or classified information.”

19. Vindication of acts and character of Government servant:

(1) No Government servant shall, except with the previous sanction of the Government, have recourse to any Court or to the Press for the vindication of any official act which has been the subject-matter of adverse criticism or an attack of a defamatory character. 34Provided that if no such sanction is received by the Government servant within a period of three months from the date of receipt of his request by the Government, he shall be free to assume that the permission as sought for has been granted to him.”

7. The charge against the applicant is that without taking permission of the Government, as required under Rule 19 (1), the applicant gave interviews to two TV channels during the course of which allegedly criticized the Government. The applicant in her defence has stated that several articles had appeared in the Indian print media, assassinating her character and that the said articles were motivated, malicious and defamatory in nature and that these articles had indicated that some officials of the respondent-Ministry were their sources. She has further contended that despite her repeated requests to the Ministry administration and the Foreign 18 (OA No.30/2018 MA No.950/2018)

Secretary no action was taken to stop leaks of information from the

Ministry and to ensure that such articles do not appear in the newspapers maligning her character. As a result, in order to vindicate her position and save her honour, she took recourse to explaining her side of the story by giving interviews to Times Now and NDTV news channels. She has further stated that immediately after her ibid interviews, complying with the requirement of Rule 19

(2) of the CCS (Conduct) Rules, 1964, she submitted a report to the

Government.

8. We notice from the records that following her TV interviews, the applicant was issued a SCN dated 29.10.2014 (Annexure A-10), seeking her explanation, which she furnished vide her letter dated

07.11.2014 (Annexure A-11). Not satisfied with the applicant’s explanation to the SCN, the DA decided to issue Annexure A-1

Memorandum of Charges dated 04.03.2015 proposing to take disciplinary action against her under Rule 16 of the CCS (CCA)

Rules, 1965 for her misconduct of giving interviews to the Press in violation of the provisions of Rule 9 (1), Rule 11 and 19 (1) of the

Conduct Rules. The applicant’s representation dated 23.03.2015

(Annexure A-12) against the charge-memo was found to be not acceptable by the DA and consequently as per the requirement of

Rule 16 (1) (e) of the CCS (CCA) Rules, the DA decided to consult the UPSC in the matter. Accordingly, the DA referred the matter to the UPSC vide letter dated 09.12.2016. We have perused this letter, 19 (OA No.30/2018 MA No.950/2018) which is Annexure-VI to the reply filed on behalf of the respondents.

Para-9 of this letter reads as under:

“9. Thus, by speaking out on the media, the CO had violated Rules 9, 11, 19 (1) and 3 (i) (iii) of the Conduct rules. Considering these facts, the Disciplinary Authority has come to the tentative conclusion that the misdemeanour of the CO stands proved and the case call for imposition of a suitable minor penalty.”

9. From the above it is quite clear that the DA has not indicated the punishment intended to be inflicted on the applicant. The letter, however, does indicate that the DE proceedings against the applicant have been started for imposition of minor penalty. This was definitely required to be mentioned in the said letter since the

DE proceedings were started under Rule 16 of the CCS (CCA) Rules.

The said letter also clearly indicated that the misdemeanour of the applicant had been proved. We further notice that the UPSC in its letter dated 10.02.2017, after going through the materials provided by the respondents, recommended to impose the penalty of reduction to a lower stage in the time scale of pay by one stage for a period of one year without cumulative effect and not adversely affecting her pension, on the applicant. Thus the allegation of the applicant that the DA in its communication to UPSC has indicated the punishment intended to be inflicted upon her and thus has prompted the UPSC to make the recommendation which the UPSC did, stands disproved. 20 (OA No.30/2018 MA No.950/2018)

10. One significant fact, which we would like to highlight, is the delay that had occurred in the conclusion of the disciplinary proceedings against the applicant. Hence, we consider it necessary to recapitulate the relevant dates. The important incidences and their dates in relation to the DE proceedings are as under: i) Date of SCN : 29.10.2014 ii) Reply of the applicant to the SCN : 07.11.2014 iii) Date of issue of the memorandum of charges : 04.03.2015 iv) Reply of the applicant to the memorandum of charges : 23.03.2015 v) Reference made by the Ministry to UPSC for advice : 09.12.2016 vi) Date of UPSC advice : 10.02.2017 vii) Date of furnishing UPSC advice to the applicant : 24.03.2017 viii) Date of applicant’s interim reply to the UPSC advice : 10.04.2017 ix) Date of final reply of the applicant to the UPSC advice : 19.05.2017 x) Date of penalty order : 10/13.11.2017 xi) Date of implementation of the penalty order : 27.11.2017

11. From the above chronology, it is quite evident that there has been an inordinate and unexplained delay of about 20 months at the end of the respondent-Ministry in acting on the reply of the applicant to the Memorandum of Charges which was received on 21 (OA No.30/2018 MA No.950/2018)

23.03.2015. The action on the applicant’s reply was for the first time initiated by making a reference to the UPSC for its advice, on

09.12.2016. The respondents in their reply have nowhere explained this delay, which indisputably has caused grave prejudice to the applicant. Pertinent to note that the ACC approval for promoting the batch-mates of the applicant to the grade of Joint Secretary was notified by DoPT on 01.11.2016. Presumably, the DPC for such promotion would have met much earlier. It is also noticed from the records that the UPSC took just two months for tendering its advice; the reference to UPSC was made on 09.12.2016 and the

UPSC furnished its advice to the Ministry on 10.02.2017.

Assuming that the Ministry would have taken a month’s time to process the reply of the applicant dated 23.03.2015 to the

Memorandum of Charges, at the most the matter should have been referred to the UPSC by the respondent-ministry in April, 2015 for its advice. The UPSC advice would have come within two months or say by June, 2015. Assuming further that the respondent-

Ministry and the DA would have taken about two months to pass the final penalty order, such order could have been passed latest by

August, 2015. Thus the currency of the penalty of reduction to a lower stage in the time scale of pay by one stage for a period of one year without cumulative effect which was to be imposed upon the applicant would have ended by July, 2016. As noticed hereinabove, the DoPT notified the ACC approval for promotion of the applicant’s 22 (OA No.30/2018 MA No.950/2018) batch-mates on 01.11.2016 and hence the applicant would have been eligible by that time for promotion to the post of Joint

Secretary as the currency of penalty imposed on her would have ended. From the inordinate delay of 20 months at the end of the respondents, we are fully convinced that the respondents have not shown any alacrity or seriousness to complete the DE proceedings against the applicant in a reasonable timeframe. Even the time prescribed in the DoPT & CVC guidelines have not been adhered to.

This delay has severely prejudiced the case of the applicant for promotion to the next higher grade.

12. Rule 16 of CCS (CCA) Rules, 1965 does not prescribe any time limit for completion of the enquiry.

13. The Central Vigilance Commission has, however, issued administrative circulars prescribing the period for completion of the enquiry. Some relevant portions of the Circular No.000/VGL/18 dated 23.05.2000 issued by the CVC are extracted below:

“Delays in disposal of disciplinary cases are a matter of serious concern to the Commission. Such delays also affect the morale of the suspected/charged employees and others in the organisation. The Commission has issued instructions, vide its communication No. 8(1)(g)/99(3) dated 03.03.1999, that departmental inquiries should be completed within a period of six months from the date of appointment of Inquiry Officers.....

S.No. State of Investigation or Time Limit inquiry 1. Decision as to whether the One month from complaint involves a receipt of the vigilance angle complaint. 2. Decision on complaint, whether to be filed or to be entrusted to CBI or to be 23 (OA No.30/2018 MA No.950/2018)

taken up for investigation -do- by departmental agency or to be sent to the concerned administrative authority for necessary action.

7. Issue of charge-sheet, if (i) One month from required. the date of receipt of Commission's advice.

(ii) Two months from the date of receipt of investigation report

8. Time for submission of Ordinarily ten days defence or as specified in statement CDA Rules.

9. Consideration of defence 15 (Fifteen) days. statement. 10. Issue of final orders in Two months from minor penalty cases. the receipt of defence statement.

14. The applicant submitted her reply to the memorandum of charges on 23.03.2015. Hence, in terms of the periods stipulated in columns 8, 9 and 10 of the table supra, the penalty order ought to have been passed by the DA within a period of two months from the receipt of the reply to the memorandum of charges since the penalty to be imposed was a minor penalty. In the other words, the penalty order should have been passed latest by the end of May, 2015.

Hence the currency of the penalty imposed would have ended by the end of April, 2016. As noticed hereinabove, the root cause of delay in concluding the DE proceedings is inaction on the part of the DA 24 (OA No.30/2018 MA No.950/2018) for about 20 months from the receipt of the reply of the applicant to the memorandum of charges.

15. The Hon’ble Apex Court in the case of State of A.P. v. N.

Radhakishan, [(1998) 4 SCC 154], has held that unexplained delay in conclusion of the DE proceedings is an indication of prejudice caused to the employee. The relevant portion of the judgment is extracted below:

It is not possible to lay down any pre-determined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all relevant factors and to balance and weight them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he s not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. if the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer enterusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations.” (Emphasis supplied)

25 (OA No.30/2018 MA No.950/2018)

16. The respondents in response to the grounds 5 (B) to (D) pleaded by the applicant in the O.A., have submitted in their reply that ‘she was charge sheeted one year and eight months prior to the date when she was eligible for promotion along with her batch mates’. Pertinent to mention that even the Hon’ble Supreme Court in the case of Prem Nath Bali v. Registrar, High Court of Delhi & another (Civil Appeal No.958/2010) decided on 16.12.2015 has observed that the DE proceedings should normally be concluded within a period of one year. The relevant observation of the Hon’ble

Apex Court in Prem Nath Bali’s case (supra) is reproduced below:-

“33. Keeping these factors in mind, we are of the considered opinion that every employer (whether State or private) must make sincere endeavour to conclude the departmental inquiry proceedings once initiated against the delinquent employee within a reasonable time by giving priority to such proceedings and as far as possible it should be concluded within six months as an outer limit. Where it is not possible for the employer to conclude due to certain unavoidable causes arising in the proceedings within the time frame then efforts should be made to conclude within reasonably extended period depending upon the cause and the nature of inquiry but not more than a year.” (emphasis supplied)

If the aforesaid time frame was adhered to by the respondents, the applicant would have secured her promotion along with her batch mates as the currency of the punishment would have ended by that time, as noted in para (11) supra.

17. The unexplained delay of 20 months at the end of the respondents has definitely prejudiced the case of the applicants.

Hence, following the ratio of law laid down in the above judgments, 26 (OA No.30/2018 MA No.950/2018) we are of the view that judicial review is warranted in this case to eliminate the adverse effect of this delay on the applicant. We are not questioning the decision of the DA but certainly the decision making process adopted by the DA needs to be adversely commented upon and its consequential effect needs to be corrected.

18. We are conscious of the fact that the scope of judicial review in a matter of disciplinary proceeding is highly limited. However, we consider it necessary to refer to some of the important decisions on the issue of judicial review.

18.1 According to Lord Diplock, in the case of Council of Civil

Service v. Minister of Civil Service [1985 AC 374] –

“Administrative action is subject to control by judicial review on the following three grounds-

i) illegality;

ii) irrationality

iii) procedural impropriety

Principle of proportionality could also be a ground.”

18.2 Laying down the scope of judicial review, the Hon’ble Apex

Court in Union of India v. P. Gunasekaran, [(2015) 2 SCC 610] has observed as under:

“Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act 27 (OA No.30/2018 MA No.950/2018)

as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:

a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of natural justice in conducting the proceedings;

d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;”

(Emphasis supplied)

18.3 In B.C. Chaturvedi v. Union of India & Others, [(1995) 6

SCC 749] the Hon’ble Apex Court on the scope of judicial review has held as under:

“Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the 28 (OA No.30/2018 MA No.950/2018)

conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.”

18.4 The Hon’ble Apex Court in Ashif Hamid v. State of J&K,

[(1989) Supp. 2 SCC 364] & Ekta Shakti Foundation v. Govt. of

NCT of Delhi, [(2006) 10 SCC 337] has held as under:

“i) “While exercising the power of judicial review of administrative action, the Court is not the appellate authority and the Constitution does not permit the Court to direct or advise the executive in matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the Legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. (See Ashif Hamid v. State of J. & K. (AIR 1989 SC 1899), Shri Sitaram Sugar Co. v. Union of India (AIR 1990 SC 1277).

ii) The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or is violative of the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court it cannot interfere.

iii) The correctness of the reasons which prompted the Government in decision making, taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation.”

19. From the perusal of the records, we are quite convinced that the DA has observed principles of natural justice in the matter of conduct of the DE proceedings at every stage against the applicant.

We, however, refrain from commenting on the final view taken by the DA in regard to the alleged misdemeanour of the applicant in view of the ratio of law laid down by the Hon’ble Apex Court in the judgments cited above. However, we would like to observe that the tentative decision of the DA was to impose minor penalty of 29 (OA No.30/2018 MA No.950/2018)

‘Censure’ on the applicant but influenced by the UPSC advice and thereafter by DoPT advice, the DA has chosen to impose the minor penalty of “reduction to a lower stage in the time scale of pay by one stage for a period of one year without cumulative effect and not adversely affecting her pension” on the applicant. As discussed by us in para-11 supra, the applicant’s interest has been grievously prejudiced by the unexplained delay of 20 months that had occurred at the end of the respondent-Ministry in not proceeding in the matter after the receipt of the applicant’s representation dated

23.03.2015 to the Memorandum of Charges. If there was any seriousness shown by the respondents to conclude the enquiry in a reasonable period of time as per the guidelines of DoPT and CVC, the DE proceedings could have been concluded between May to

August, 2015 as discussed in para-11 & 13 supra. The applicant would have been thus eligible for promotion to the grade of Joint

Secretary along with her batch-mates when they were considered for such promotion and would have found her name in the DoPT notification dated 01.11.2016 because by that time the currency of the punishment imposed on her would have ended.

20. In the conspectus of the discussions in the foregoing paras, we are of the view that the end of justice would duly meet by suitably compensating the applicant for the inexplicable delay of 20 months that had occurred at the end of the respondents in her case.

Accordingly, we dispose of this OA in the following terms: 30 (OA No.30/2018 MA No.950/2018) i) The punishment inflicted on the applicant vide penalty order dated 10/13.11.2017 (Annexure A-4) shall be treated as effective from 01.09.2015 (refer para-16 of the order) with its currency ending on 31.08.2016. ii) The sealed cover relating to the promotion of the applicant to the grade of Joint Secretary shall be opened and if she is found fit for promotion, she shall be promoted to the grade of Joint Secretary w.e.f. 01.11.2016 when her batch- mates were promoted to such grade. This shall be done within a period of two months from the date of receipt of a certified copy of this order. It is also clarified that the applicant shall be entitled to all consequential benefits.

21. There shall be no order as to costs.

MA No.950/2018

In view of the above, no separate orders are required to be passed on the MA. It accordingly stands disposed of.

(K.N. Shrivastava) (Justice Permod Kohli) Member (A) Chairman

‘San.’