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 India 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 Indian Foreign Service (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 Government of India 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.