Saturday, 25 April 2020

Supreme Court: Improper handling of Sexual Harassment complaint violates Fundamental Right to Life and Dignity of Victim

The scheme of the 2013 Act, Vishaka Guidelines and Convention
on Elimination of All Forms of Discrimination Against Women
(CEDAW) predicates that a nonhostile
working environment is the
basic limb of a dignified employment. The approach of law as regards
the cases of sexual harassment at workplace is not confined to cases
of actual commission of acts of harassment, but also covers
situations wherein the woman employee is subjected to prejudice,
hostility, discriminatory attitude and humiliation in day to day
functioning at the workplace. Taking any other view would defeat the
purpose of the law. A priori, when inaction or procrastination
(intentionally or otherwise) is meted out in response to the attempt of
setting the legal machinery in motion, what is put to peril is not just
the individual cries for the assistance of law but also the foundational
tenets of a society governed by the rule of law, thereby threatening the
larger public interests. The denial of timely inquiry and by a
competent forum, inevitably results in denial of justice and violation
of fundamental right. The factual matrix of the present case is replete
with lack of sensitivity on the part of Secretary (R) qua the complaint
of sexual harassment. To wit, time taken to process the stated
complaint and improper constitution of the first Complaints
Committee (intended or unintended) in violation of the Vishaka

Guidelines, constitute an appalling conglomeration of undignified
treatment and violation of the fundamental rights of the petitioner,
more particularly Articles 14 and 21 of the Constitution.

104. In the present case, the petitioner had faced exceedingly
insensitive and undignified circumstances due to improper handling
of her complaint of sexual harassment. Regardless of the outcome of
the inquiry into the stated complaint, the fundamental rights of the
petitioner had been clearly impinged. Taking overall view of the
circumstances, we consider this to be a fit case to award
compensation to the petitioner for the stated violation of her right to
life and dignity, quantified at Rs.1,00,000/(
Rupees one lakh only).

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2365 OF 2020

Nisha Priya Bhatia  Vs  Union of India

A.M. Khanwilkar, J.
Dated:April 24, 2020.

1. This lis throws up questions regarding striking a legal balance
between the Statecitizen
intercourse in the context of relationship of
an employer and employee. The nature of employment under the
umbrella of the State is complex and is often determinative of the
2
nature of duty to be performed and the rights to be enjoyed by those
must be correlated thereto. To wit, higher the position and
responsibilities, the extent and quality of individual rights ought to be
inversely proportional in the larger public interest. Thereby giving
rise to situations like the present case wherein the ultimate balance
between security of a State organisation dealing with sensitive
matters of security of the nation and individual interest of a person
employed thereat as an intelligence officer, is being put to a legal
scrutiny in light of the fundamental constitutional values of justice,
liberty, equality and fraternity.
2. This common judgment shall dispose of all the four cases
pertaining to and emanating from the action of compulsory retirement
of the appellant under Rule 135 of the Research and Analysis Wing
(Recruitment, Cadre and Services) Rules, 1975 (for short, “the 1975
Rules”) on the ground of “exposure”. Civil Appeal No. 2365/2020
arising out of SLP(C) No. 2307/2019 has been dealt with as lead
matter involving the main grievance of the appellant.
Civil Appeal No. 2365/2020 @ SLP (Civil) No. 2307 of 2019
3. Leave granted.
3
4. The primary challenge is to the judgment dated 7.1.2019 (for
short, ‘the impugned judgment’) passed in W.P. (C) No. 2735 of 2010
filed by the respondents, whereby the High Court of Delhi at New
Delhi (for short, ‘the High Court’) upheld the order of compulsory
retirement of the appellant, thereby reversing the order dated
16.3.2010 passed by the Central Administrative Tribunal (for short,
‘the Tribunal’) in O.A. No. 50 of 2010 quashing the order of
compulsory retirement and directing reinstatement of the appellant
back in service.
5. Briefly stated, on 22.2.1988, the appellant joined the Research &
Analysis Wing (for short “the Organisation” or “the Department”) as
“Directly Recruited” under the Research & Analysis Service (RAS).
She was assigned various portfolios during the term of service
including the post of Director, Training Institute (Gurgaon) where she
remained posted from 2.7.2004 to August, 2007. On 3.8.2007, the
appellant was posted as Director at Headquarters in New Delhi.
Whilst posted at Gurgaon and Delhi, the appellant had to interact
with Shri Ashok Chaturvedi and Shri Sunil Uke respectively, who
were working in the Organisation in various capacities at that time.
6. On 7.8.2007, the appellant filed a complaint of sexual
harassment against Shri Ashok Chaturvedi, working as Secretary (R)
4
Incharge
of the Organisation and Shri Sunil Uke, working as Joint
Secretary in the Organisation at that time. The appellant alleged that
the charged officers subjected her to harassment by asking her to join
the sex racket running inside the Organisation for securing quicker
promotions and upon refusal to oblige, she was subjected to
persecution. Thus began the series of allegations regarding acts of
commission and omission which culminated into litigation continuing
upto the present batch of four cases.
7. The Organisation responded to the allegations of sexual
harassment after a gap of almost three months by constituting a
Complaints Committee in accordance with the guidelines laid down in
Vishaka and Others vs. State of Rajasthan and Others1 and
appointed Ms. Shashi Prabha, a female officer in the Organisation, as
Chairperson of a threemember
Complaints Committee. The
Complaints Committee so constituted did not consist of a “third party
as a representative of an NGO or other body who is familiar with the
issue of sexual harassment”, as predicated by the guidelines given in
Vishaka (supra). Resultantly, the Committee was reconstituted
on
1.11.2007 with the addition of Dr. Tara Kartha, Director, National
Security Council Secretariat (NSCS).
1 (1997) 6 SCC 241
5
8. It is noteworthy that, despite multiple reminders, the appellant
refused to participate in the stated proceedings before the Committee
and cited the following reasons for such refusal:
(i) Need to constitute the Departmental
Committee as per Vishakha guidelines; and,
(ii) The committee had no mandate to proceed
against Shri Ashok Chaturvedi, as Chairperson of
the committee was not senior enough to inquire into
allegations against him.
9. The departmental Complaints Committee, in its exparte
report,
concluded that no allegations of sexual harassment could be proved
against Shri Sunil Uke. This report was followed by a ‘widely
reported’ incident at the Prime Minister’s Office (for short, “the PMO”)
where the appellant reportedly attempted to commit suicide on
19.8.2008. We are not required to dilate on the factual aspect of this
incident at the PMO, but for the purpose of present litigation, suffice
it to mention that due to this incident, the name and designation of
the appellant was widely reported in the media. Further, the criminal
case against the appellant evolving out of this incident came to be
dropped vide order dated 21.9.2013 passed by the Metropolitan
Magistrate, Patiala House Courts, New Delhi.
10. It was in the aftermath of this incident that another committee
was constituted by the then Prime Minister under the Chairmanship
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of Ms. Rathi Vinay Jha, a retired officer of the Indian Administrative
Service to look into the complaints against Shri Ashok Chaturvedi.
The Committee dealt with two aspects of allegations against Shri
Ashok Chaturvedi – firstly, allegation of not acting in accordance with
the Vishaka (supra) Guidelines on receipt of the complaint of the
appellant; secondly, allegations of actually indulging in acts falling
within the ambit of sexual harassment. We, at this juncture, are
concerned only with the former allegation, that is, the lapse
committed by the Secretary (R) to act in accordance with the elaborate
Guidelines passed by this Court in Vishaka (supra). For, Rathi Vinay
Jha Committee concluded the enquiry with the finding that no case of
sexual harassment of the appellant at the hands of her colleagues
was made out on the basis of evidence on record. However, the
Committee recorded a series of crucial observations. The same shall
be adverted to at an appropriate stage in the later part of this
judgment.
11. Furthermore, in the aftermath of the abovementioned
incident
at PMO, the Cabinet Secretariat, through the Press Information
Bureau, released a press note dated 19.8.2008 carrying the title “Fact
Sheet on Suicide Attempt by Ms. Nisha Priya Bhatia”. This press note
carried information pertaining to the incident, her complaints against
7
her colleagues within the Department and the state of her mental
health and psychological condition. It is pertinent to note that the
observations regarding the disturbed mental state of the appellant
were based on an ‘informal opinion’ sought by Secretary (R) from the
Head of the Department of Psychiatry, All India Institute of Medical
Sciences (AIIMS). Notably, this press note dated 19.8.2008 has been
quashed by this Court in W.P. (Crl.) No. 24 of 2012, vide order dated
15.12.2014, as being in gross violation of human rights and
individual dignity of the appellant. The relevant part of the order
notes thus:
“On proper appreciation of the aforesaid, it can definitely be
stated that the foundation and the fulcrum on which the
press note was issued has no basis. The press note, as we
perceive, creates a concavity in the reputation of a citizen
and indubitably against an officer whatever rank he/she
holds. There was no reason to issue a press note. We can
understand that the press note is issued that a crime has
been registered against the person concerned as it is a
cognizable crime but we cannot appreciate issuance of such
a press note which affects the dignity, reputation and
privacy of an officer.
In view of the aforesaid, we quash the press note dated
19.08.2008. Needless to emphasise, when we quash a press
note or anything, it does not exist in the eye of law and it has
to be understood that it had never existed for any purpose at
any point of time.”
12. The incident dated 19.8.2008 at the PMO had attracted
immense media attention across national and international portals
and culminated into a series of media reports whereby the appellant’s
identity, including her association with the Organisation, became a
8
subject of public discourse. This incident acted as the pivot around
which subsequent events of exposure took shape, eventually leading
to the ‘exposure’ of the appellant within the ambit of Rule 135. In
light of aforementioned developments, the appellant was declared as
“exposed”. This exposure, furthermore, led the respondents to
declare the appellant as unemployable, having regard to the nature of
work of the Organisation of which confidentiality and secrecy are
inalienable elements.
13. The declaration of unemployability of the appellant due to
exposure as an intelligence officer was made by way of an order of
compulsory retirement dated 18.12.2009 passed under Rule 135 of
the 1975 Rules. The appellant took exception to this order before the
Tribunal in O.A. No. 50/2010 on the grounds of mala fides and
manifest arbitrariness in the actions of the respondents. The
appellant’s challenge to this order was upheld by the Tribunal and,
vide order dated 16.3.2010, reinstatement of the appellant back in
service was directed. The Tribunal had observed thus:
“15. We had gone through the materials that had been
placed by the parties. After hearing them, we are of the
confirmed opinion that the applicant has been treated with a
large doze of arbitrariness and her statutory as well as
constitutional rights stand violated. Resort to Rule 135 (1)(a)
could not have been supported. Resultantly, we are of the
view that the applicant is entitled to the reliefs as might be
admissible, namely, reinstatement. We may give below our
reasons for coming to the said conclusion.”
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14. After the retirement of the appellant, the provisional pension of
the appellant was fixed under Rule 69 of CCS (Pension) Rules,1972
(for short, ‘the Pension Rules’) vide order dated 10.5.2010 with effect
from the date of retirement till regularization of her period of
unauthorized absence from 29.8.2008 to 26.11.2009. The provisional
pension was authorized on the last pay drawn by her on 28.8.2008.
Thereafter, the period of unauthorized absence was regularized by the
High Court vide order dated 21.10.2013 passed in W.P. (C) No. 3704
of 2012, as upheld by this Court in S.L.P. (Civil) C.C. No. 6762 of
2014, thereby entitling the appellant to complete pension benefits
with effect from 19.12.2009.
15. Be that as it may, the Tribunal held that the order of compulsory
retirement was violative of Articles 14 and 311 of the Constitution and
fell short of declaring Rule 135 as unconstitutional. It was content
with the following words:
“20. …..A subsidiary rule, we feel, is insufficient to
annihilate the guaranteed rights as are available to an
officer, who had put in considerable years of service. As we
have found that the applicant has been denied protection of
law, which is a fundamental right under Article 14 of the
Constitution, it may not be necessary for us to further
deliberate on the constitutionality of Rule 135 (1)(a) of the
R&AW (RCS) Rules or declare that the rule invoked is void,
since it operates to contravene clause (2) of Article 311.”
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16. The aforementioned order of the Tribunal was impugned by the
respondents in W.P. (C) 2735/2010 before the High Court, wherein
the High Court, by an elaborate judgment, reversed the decision of
the Tribunal vide impugned judgment dated 7.1.2019 and upheld the
order of compulsory retirement issued under Rule 135. The challenge
to the constitutional validity of Rule 135 of the 1975 Rules was also
examined and negatived by the High Court. At the outset, we deem it
apposite to deal with the issue whether Rule 135 of 1975 Rules could
be assailed as unconstitutional.
Submissions re: Constitutionality of Rule 135
17. It has been contended by the appellant before us that Rule 135
is in direct contravention of Article 311 of the Constitution which
deals with “dismissal, removal or reduction in rank of persons
employed in civil capacities under the Union or the State”, as the stated
Rule modifies that right to the detriment of the employee. In
extension of the same argument, it has been contended that failure to
follow the procedural safeguards prescribed under Article 311
amounts to a denial of equal protection of law to the appellant,
thereby violating Article 14 of the Constitution. Furthermore, it has
also been argued that Rule 135 cannot be saved by Article 309 of the
Constitution, as Article 309 covers a separate field of recruitment and
11
conditions of service of public servants, whereas the legal procedure
to be followed during the termination of service is exclusively covered
by Article 311 of the Constitution. Additionally, the stated Rule 135
suffers from the vice of vagueness.
18. To buttress this submission, the appellant has placed reliance
on the principles expounded by this Court on voidness of enactments
in Kartar Singh vs. State of Punjab2 in the following terms:
“130. It is the basic principle of legal jurisprudence that an
enactment is void for vagueness if its prohibitions are not
clearly defined. Vague laws offend several important values.
It is insisted or emphasised that laws should give the person
of ordinary intelligence a reasonable opportunity to know
what is prohibited, so that he may act accordingly. Vague
laws may trap the innocent by not providing fair warning.
Such a law impermissibly delegates basic policy matters to
policemen and also judges for resolution on an ad hoc and
subjective basis, with the attendant dangers of arbitrary and
discriminatory application. More so uncertain and undefined
words deployed inevitably lead citizens to “steer far wider of
the unlawful zone ... than if the boundaries of the forbidden
areas were clearly marked.”
19. In further submissions, the appellant has also grounded her
arguments against the constitutionality of the Rule on the basis of the
Tribunal’s observation that the Rule does not provide for its
publication nor satisfies the cardinal requirement of fair play of prior
notice about the existence of such Rules to the employees serving in
the Organisation. It is urged that the appellant was not aware of the
2 (1994) 3 SCC 569
12
existence of the rule and even after procuring the copy of the rule, she
was required to keep it as a secret.
20. The respondents, on the other hand, have submitted that Article
311 of the Constitution has no application to a case of compulsory or
premature retirement, as Article 311 is confined to cases involving
dismissal, removal or reduction in rank. Stated in a nutshell, the
respondents contend that Article 311 is attracted in cases involving
termination as a punishment. Whereas, an order of compulsory
retirement under Rule 135 of the 1975 Rules, per se, does not entail a
punishment.
21. The respondents have also submitted that the power under Rule
135 to retire compulsorily flows from the proviso to Article 309 of the
Constitution, dealing with the conditions of service; and Article 310,
dealing with the doctrine of pleasure. It is further submitted that
Rule 135, being a provision for compulsory retirement, does not
involve any penal consequence as is the case of Fundamental Rule
56(j) (for short “FR 56(j)”). Additionally, reliance is placed on the
exposition of this Court in Union of India vs. Col. J.N. Sinha &
Anr.3 in the following terms:
“9. Now coming to the express words of Fundamental Rule
56(j), it says that the appropriate authority has the absolute
3 1970 (2) SCC 458
13
right to retire a government servant if it is of the opinion that
it is in the public interest to do so. The right conferred on the
appropriate authority is an absolute one. That power can be
exercised subject to the conditions mentioned in the rule,
one of which is that the concerned authority must be of the
opinion that it is in public interest to do so. If that authority
bona fide forms that opinion, the correctness of that opinion
cannot be challenged before courts. It is open to an aggrieved
party to contend that the requisite opinion has not been
formed or the decision is based on collateral grounds or that
it is an arbitrary decision…….. One of the conditions of the
1st respondent's service is that the government can choose
to retire him any time after he completes fifty years if it
thinks that it is in public interest to do so. Because of his
compulsory retirement he does not lose any of the rights
acquired by him before retirement. Compulsory retirement
involves no civil consequences. The aforementioned rule 56(j)
is not intended for taking any penal action against the
government servants. That rule merely embodies one of the
facets of the pleasure doctrine embodied in Article 310 of the
Constitution. Various considerations may weigh with the
appropriate authority while exercising the power conferred
under the rule. In some cases, the government may feel that
a particular post may be more usefully held in public
interest by an officer more competent than the one who is
holding. It may be that the officer who is holding the post is
not inefficient but the appropriate authority may prefer to
have a more efficient officer. It may further be that in certain
key posts public interest may require that a person of
undoubted ability and integrity should be there. There is no
denying the fact that in all organizations and more so in
government organizations, there is good deal of dead wood, it
is in public interest to chop off the same. Fundamental Rule
56(j) holds the balance between the rights of the individual
government servant and the interests of the public. While a
minimum service is guaranteed to the government servant,
the government is given power to energise its machinery and
make it more efficient by compulsorily retiring those who in
its opinion should not be there in public interest.”
Analysis of submissions and conclusions in Impugned Judgment
22. In the impugned judgment, the argument against nonpublication
of Rule 135 of the 1975 Rules and subsequent inability of
14
the appellant to acquire notice thereof was rejected in the following
words:
“61. It is undoubtedly true that there are some authorities
(B.K. Srinivasan & Another vs. State of Karnataka AIR 1987
SC 1054 being one such), which indicate that a norm should
be published for it to operate. However, in the present case a
peculiar situation has arisen, inasmuch as the organizationR&
AW is involved in intelligence work; during arguments, its
counsel preferred to refer it as a wing under the Cabinet
Secretariat. Publication of the conditions of service,
organizational structure and possibly letting out the work
flow of different officers and employees, was perceived as a
compromise of the confidentiality that the organization fights
to maintain at all times. Given these compulsions, this court
is of the opinion that the wide kind of publicity of R&AW’s
cadre structure was not in public interest. What is apparent
from the record, however is that the applicant was aware of
the rule and did not state in her application to CAT that she
was kept in the dark; what is stated in the application made
– challenging the rule is that for the first time, she became
aware at the time of her compulsory retirement and that the
rules were kept under lock and key. The UOI’s response is
that
“Rules of 1975 are kept in all the offices of R&AW, all
over the country and in different sections of the Head
Quarters. All officials of R&AW have access to these
Rules; however the same are not available to the
public in general as they are secret.”
62. It seems from the above facts that the petitioner was
aware of the Rules, especially Rule 135. She chose to
challenge it in a separate writ petition, much after the order
of compulsory retirement. Though estoppel on this score
cannot be invoked, the court is of opinion that the lack of
publicity to the rule cannot be a valid ground, given the
character of R&AW and the compulsions that impelled it not
to publish the said rule.”
23. The challenge to the constitutional validity of Rule 135 is further
based on an apprehension of abuse due to the usage of vague and
openended
terms like “exposed” and “security”. The High Court,
15
relying upon Union of India & Anr. vs. Tulsiram Patel4, rejected
the attribution of words like ‘vague’ and ‘openended’
to the term
“security of the State”. The High Court construed the meaning of this
term, in reference to the following dictum in Tulsiram Patel (supra):
“141 …The expression “security of the State” does not mean
security of the entire country or a whole State. It includes
security of a part of the State. It also cannot be confined to
an armed rebellion or revolt. There are various ways in
which security of the State can be affected. It can be affected
by State secrets or information relating to defence
production or similar matters being passed on to other
countries, whether inimical or not to our country, or by
secret links with terrorists. It is difficult to enumerate
various ways in which security of the State can be affected.
The way in which security of the State is affected may be
either open or clandestine…..”
24. The Court reiterated that R&AW is an organization engaged in
intelligence activities that concern security interests of the nation and
thus, the width of the expression “security of the State” ought to be
perceived in light of the specific activities undertaken by the
Organisation. In this context, the impugned judgment, in para 65,
records thus:
“65. The applicant’s arguments are that the expression
“security” is a vague term and does not have any meaning. It
is argued by her that the use of the term without the use of
any other expression renders it vague and capable of misuse.
In this context, the court would reiterate that the R&AW is
an organization concededly engaged in intelligence activities
that concern security interests of the nation. In the absence
of any other expression, the natural meaning of the
expression “security” would be – in the context of Rule 135 if
4 (1985) 3 SCC 398
16
the activities of the employee or the officer are such that it is
considered reasonably as a threat to the security of the
organization or the country, the Rule can apply. In this
context, the above observations in Tulsi Ram Patel (supra)
are relevant. The court had underlined that it is difficult to
enumerate the various ways in which the security of the
State can be affected. The court had also highlighted that
security of the State included the security of part of the
State. If one sees these observations in the context of the fact
that members of the R&AW are covered by Article 33 of the
Constitution (as amended by the 50th Amendment Act,
1984), it is obvious to the court that any act, to fall within
the mischief of Rule 135, should be of such nature as to
pose a threat to the security of the nation or security of
R&AW. Furthermore, the organization comprises of its
members and personnel. Therefore, if in a given case, any
member of R&AW indulges in behaviour that is likely to
prejudice its overall morale or lead to dissatisfaction, it may
well constitute a threat to its security.”
25. In order to further assail the constitutionality of Rule 135 of the
1975 Rules, a challenge was raised by the appellant against the term
“exposure” on the ground of vagueness and openendedness.
While
dealing with this objection, the High Court adopted a plain
interpretation of the expression and rejected the objection in the
following terms:
“66. As regards, the applicant’s objection to the term
“exposure”, here again upon a plain interpretation, it is
evident that if the identity of any member of R&AW, which
ought not to be known widely, is so made known or
published, and that incident or rationale is a cause of threat
– real or apprehended, to its security or the security of its
personnel or the security of the state, the rule can be
attracted. It is difficult to visualize the various situations in
which exposure of R&AW personnel might lead to a security
threat. For instance, identity of someone, who is known to
head a senior position, per se, may not pose a threat to the
security or to R&AW. However, the disclosure of identity
through any incident, of its officers who are involved in
sensitive functions or operations, in any manner whatsoever,
can lead to compromise of the security of R&AW or the state.
17
One of the ways this can happen is that if the truth of such
an individual is known, he or she can be open to scrutiny by
forces hostile and on occasions even subjected to threats
which might lead to disclosuresvoluntary
or otherwisewith
regard to the secrets of the organization which can be a
threat to the security of the country. Therefore, the use of
the expressions “security” and “exposure”, are not vague or
arbitrary but, having regard to the context and the
underlying objectives of the R&AW, mean security of the
State or security of R&AW and exposure of the identity of the
concerned individual.”
Determination of the challenge to constitutionality
26. Article 13 of the Constitution would get attracted if any law is
inconsistent with or in derogation of the fundamental rights. In that
case, such a law would be void to the extent of inconsistency. By
virtue of clause (3), the word “law”, used in Article 13, also
encompasses a statutory “rule” and thus the constitutionality of Rule
135, as being violative of Article 14 read with Article 311, could
legitimately be tested on the anvil of standard tenets for determining
the constitutionality of statutes.
27. Article 311 of the Constitution is a manifestation of the essential
principles of natural justice in matters of dismissal, removal or
reduction in rank of public servants and imposes a duty upon the
Government to ensure that any such decision against the public
servant is preceded by an inquiry, coupled with an opportunity of
being heard and making a representation against such decision. The
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abovementioned principles of natural justice are also generally
implicit under Article 14, as a denial of the same to the public servant
in question would taint the decision with the vice of arbitrariness and
deprive the public servant of equal protection of the law. Article 311
reads thus:
“Article 311 Dismissal,
removal or reduction in rank of
persons employed in civil capacities under the Union or
a State.(
1) 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.
(2) No such person as aforesaid shall be dismissed or
removed or reduced in rank except after an inquiry in which
he has been informed of the charges against him and given a
reasonable opportunity of being heard in respect of those
charges:
Provided that where it is proposed after such inquiry, to
impose upon him any such penalty, such penalty may be
imposed on the basis of the evidence adduced during such
inquiry and it shall not be necessary to give such person any
opportunity of making representation on the penalty
proposed:
Provided further that this clause shall not apply(
a) where a person is dismissed or removed or reduced
in rank on the ground of conduct which has led to his
conviction on a criminal charge; or
(b) where the authority empowered to dismiss or
remove a person or to reduce him in rank is satisfied
that for some reason, to be recorded by that authority
in writing, it is not reasonably practicable to hold such
inquiry; or
(c) where the President or the Governor, as the case
may be, is satisfied that in the interest of the security
of the State it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a
question arises whether it is reasonably practicable to hold
such inquiry as is referred to in clause (2), the decision
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thereon of the authority empowered to dismiss or remove
such person or to reduce him in rank shall be final.”
28. For further analysis, it is also apposite to advert to the text of
Rule 135 of the 1975 Rules, which reads as follows:
"135. Terminal benefits on compulsory retirement:
(1) Any officer of the Organization may be compulsorily
retired on any of the following grounds namely
(a) his being exposed as an intelligence officer or his
becoming unemployable in the Organization, for
reasons of security, or
(b) disability or injuries received by him in the
performance of his duties.
(2) On the retirement of an officer under subrule
(1), he
may be granted
(i) pension based on the emoluments which he would
have drawn had he remained in service until the
normal age of superannuation and earned promotion,
other than promotion by selection, due to him under
these rules or the maximum emoluments he would
have drawn in the grade in which he was permanent
or regularly appointed at the time of his retirement
had he continued to serve in that grade till the age of
superannuation, provided that in no case such
pension shall be less than twelve hundred and
seventyfive
rupees.
(ii) Family pension and deathcumretirement
gratuity
admissible under the rules for the time being in force.
(3) In addition to the pension, deathcumretirement
gratuity and family pension admissible under subRule
(2),
the person concerned may also be paid a resettlement grant
not exceeding twelve times the monthly pay drawn by him
immediately before his compulsory retirement.
(4) The Head of Organization may at his discretion permit
the officer concerned to exchange the entire pension due to
him under subrule
(2) for a lumpsum
which shall be equal
to the commuted value of that amount admissible to a
person retiring on attaining the normal age of
superannuation.”
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29. A perusal of the text of Article 311 reveals that this Article comes
into operation when a public servant is being subjected to dismissal,
removal or reduction in the rank. The usage of words “dismissal”,
“removal” or “reduction in rank” clearly points towards an intent to
cover situations where a public servant is being subjected to a penal
consequence. Thus, until and unless the action taken against a
public servant is in the nature of punishment, the need for
conducting an inquiry coupled with the grant of an opportunity of
being heard, as envisaged under Article 311, does not arise at all.
Succinctly put, the action contemplated against the public servant
must assume the character of ‘punishment’ in order to attract the
safeguards under Article 311. The policy, object and scope of Article
311 has been clarified by this Court in State of Bombay vs.
Saubhagchand M. Doshi5, wherein the Court observed thus:
“10. Now, the policy underlying Article 311(2) is that when
it is proposed to take action against a servant by way of
punishment and that will entail forfeiture of benefits already
earned by him, he should be heard and given an opportunity
to show cause against the order. But that consideration can
have no application where the order is not one of
punishment and results in no loss of benefits already
accrued, and in such a case, there is no reason why the
terms of employment and the rules of service should not be
given effect to. Thus, the real criterion for deciding whether
an order terminating the services of a servant is one of
dismissal or removal is to ascertain whether it involves any
loss of benefits previously earned. Applying this test, an
order under Rule 165A
cannot be held to be one of
5 AIR 1957 SC 892
21
dismissal or removal, as it does not entail forfeiture of the
proportionate pension due for past services.”
30. The question is: whether the action taken under Rule 135 of the
1975 Rules is in the nature of penalty or a dismissal clothed as
compulsory retirement so as to attract the safeguards under Article
311 of the Constitution? The real test for this examination is to see
whether the order of compulsory retirement is occasioned by the
concern of unsuitability or as a punishment for misconduct. In the
present case, the appellant has been subjected to the order of
compulsory retirement simpliciter, and no action in the nature of
dismissal, removal or reduction in rank, as envisaged under Article
311, has been taken against the appellant. In Saubhagchand M.
Doshi (supra), the distinction between an order of dismissal and that
of compulsory retirement was expounded in the following terms:
“9. …..Under the rules, an order of dismissal is a
punishment laid on a Government servant, when it is found
that he has been guilty of misconduct or inefficiency or the
like, and it is penal in character, because it involves loss of
pension which under the rules would have accrued in
respect of the service already put in. An order of removal also
stands on the same footing as an order of dismissal, and
involves the same consequences, the only difference between
them being that while a servant who is dismissed is not
eligible for reappointment,
one who is removed is. An order
of retirement differs both from an order of dismissal
and an order of removal, in that it is not a form of
punishment prescribed by the rules, and involves no
penal consequences, inasmuch as the person retired is
entitled to pension proportionate to the period of
service standing to his credit.”
22
31. This Court, in State of U.P. vs. Sri Shyam Lal Sharma6, also
laid down various propositions regarding the implication and effect of
the orders of compulsory retirement in the following terms:
“13. The following propositions can be extracted from these
decisions. First, in ascertaining whether the order of
compulsory retirement is one of punishment it has to be
ascertained whether in the order of compulsory retirement
there was any element of charge or stigma or imputation or
any implication of misbehaviour or incapacity against the
officer concerned. Secondly, the order for compulsory
retirement will be indicative of punishment or penalty if the
order will involve loss of benefits already earned. Thirdly, an
order for compulsory retirement on the completion of 25
years of service or an order of compulsory retirement made
in the public interest to dispense with further service will not
amount to an order for dismissal or removal as there is no
element of punishment. Fourthly, an order of compulsory
retirement will not be held to be an order in the nature of
punishment or penalty on the ground that there is possibility
of loss of future prospects, namely that the officer will not
get his pay till he attains the age of superannuation, or will
not get an enhanced pension for not being allowed to remain
a few years in service and being compulsorily retired.”
32. In the light of the settled legal position governing compulsory
retirement referred to above, let us embark upon the width of Rule
135 in order to address the challenge against it under Article 311
read with Article 14. The fundamental source of compulsorily retiring
an employee is derived from the “doctrine of pleasure”, as accepted in
India, which springs from Article 310 of the Constitution. Rule 135
merely sets out certain grounds to act as quintessence for taking
6 (1971) 2 SCC 514
23
such decision and the source of power vests in Article 309 read with
Article 310 of the Constitution. Rule 135 has been carved out as a
special provision and is premised on the doctrine of necessity. This
stand alone provision forms a small subset of the genus of Article 309
and deals strictly with cases of “exposure” of “intelligence officers”
who become unemployable in the Organisation for reasons of
security. Subrule
(1) of Rule 135 indicates that an order of
compulsory retirement could be passed only on the exhaustive
grounds specified therein, that is – exposure as an intelligence officer
or his becoming unemployable in the Organisation due to reasons of
security or disability/injuries received by an officer in the
performance of his duties. Thus understood, the stipulation is
objective, wellarticulated
and intelligible. Moreover, the stated
reason(s) make it amply clear that Rule 135 covers situations, the
existence of which would have an adverse impact, direct or indirect,
on the integrity of the Organisation if the officer is exposed as an
intelligence officer and becomes unemployable in the Organisation for
reasons of security. A priori, it would neither be a case of misconduct
or inefficiency or the like so as to attract penal consequences. It is in
no way a reflection on the employee regarding his conduct as such
but solely on account of public interests in reference to the nature of
24
sensitivity of operations undertaken by the Organisation. Therefore,
the order under Rule 135 falls in line with the first proposition
expounded in Shyam Lal (supra) and does not entail any charge,
stigma or imputation against the appellant.
33. To recapitulate, Rule 135 envisages a certain chronology and
gets triggered when an intelligence officer stands exposed or is
rendered unemployable for reasons of (individual, organisational or
national) security. The expressions “exposure”, “unemployability” and
“security” constitute the key ingredients of this Rule and are to be
understood in a chronological and natural order to discern their true
essence and effect.
34. Further, it is pertinent to note that the grounds referred to in
Rule 135 nowhere contemplate it as a consequence of any fault or
wrongful action on the part of the officer and unlike penal actions, do
not stigmatise the outgoing officer or involve loss of benefits already
earned by him and there is no element of punishment. Subrules
(2),
(3) and (4) of Rule 135 reinforce this view as the same provide for
appropriate benefits such as pension, gratuity, lump sum amount etc.
for the public servant who has been subjected to compulsory
retirement. Thus, the employee is not faced with any loss of benefits
already earned. We say so because the examination of the
25
characteristics of such a rule is not focussed around the motive or
underlying intent behind its enactment, rather, it lies in the
consequence and effect of the operation of such a rule on the outgoing
employee. The rule does not result into a deprivation of the retired
employee of any benefit whatsoever in lieu of such order of
compulsory retirement and thus, attracts no stigma or any civil
consequence to the retired employee for his/her future. The
invocation of this Rule, therefore, falls in sync with the second
proposition in Shyam Lal (supra) which looks down upon any loss of
profits in a nonstigmatic
order of compulsory retirement. Succinctly
put, a compulsory retirement without anything more does not attract
Article 311(2). We may usefully refer to Dalip Singh vs. State of
Punjab7 and Union of India and Others vs. Dulal Dutt8 to bring
home the stated position of law.
35. To concretize further, we now advert to the third limb of the
dictum in Shyam Lal (supra) that necessitates the absence of any
element of punishment in a just order of compulsory retirement. In
order to undertake this examination, we deem it crucial to expound
the true scheme and effect of rules governing the employees of the
Organisation by making a brief reference to the decision in Satyavir
7 AIR 1960 SC 1305
8 (1993) 2 SCC 179
26
Singh and Others vs. Union of India and Others9, wherein this
Court upheld the dismissal of two employees of the Organisation on
the grounds of misconduct, indiscipline, intimidation and
insubordination under Rule 19 of the Central Civil Services
(Classification, Control and Appeal) Rules, 1965 (for short “CCS (CCA)
Rules”), without holding any inquiry under Article 311 by virtue of the
proviso attached to the Article. Thus, it becomes amply clear that, at
par with other departments, in case of dismissal of an employee of
this Organisation also, the CCS (CCA) Rules, coupled with the
procedure under Article 311, could be and are expected to be
ordinarily resorted to. Therefore, Rule 135 of the 1975 Rules has
been enacted as a special provision dealing strictly with the nonpenal
domain of compulsory retirement and that too against intelligence
officer under specific circumstances referred to in clauses (a) and (b)
of subRule
(1) thereof. Whereas, the cases of
dismissal/removal/reduction in rank or any other penal action of
termination of service involving stigmatisation of the employee is
separately covered by the CCS (CCA) Rules, as discussed above.
36. A priori, the irresistible conclusion is that the effect of any action
taken under Rule 135 does not entail any penal consequence for the
employee and, therefore, it cannot be put at the same pedestal as an
9 (1985) 4 SCC 252
27
action of dismissal or removal, and no inquiry or opportunity of
hearing as envisaged under Article 311 is required while taking an
action under this Rule. Equally, it holds merit to note that mere loss
of some future career prospects per se is no ground for invalidating
an order of compulsory retirement as it may be in a given case an
inevitable consequence of any such order. What needs to be
delineated to attract the vice of invalidity to a statutory order is
illegality, at least of a minimum standard to trigger the conscience of
the Court. The exposition in Shyam Lal (supra) and Saubhagchand
M. Doshi (supra) would squarely apply.
37. To put it differently, the action under Rule 135 is not governed
by Article 311 nor it offends the same as
these two provisions
operate in separate spheres and thus an action taken under the
impugned Rule (Rule 135 of the 1975 Rules) need not be preceded by
the safeguards provided under Article 311 of the Constitution as
such. Since the action under Rule 135 is exclusive and is invoked in
the specified situations in public interest in reference to the
Organization and at the highest level by the head of the Government,
the question of violation of Article 14 on account of the denial of equal
protection of law does not arise.
28
38. Assailing the constitutionality of this Rule, the appellant has
also contended that the nonapplication
of this Rule to deputationists
is discriminatory and falls foul of Article 14. The impugned judgment
rejected this submission and observed thus:
“67. ….A deputationist’s services stand on a footing unlike
that of the official in a department, who is bound by its
terms and conditions. In case a deputationist –
hypotheticallyis
“exposed” or “exposes” himself and that
constitutes a security threat, surely the Central Government
can resort to other mechanisms: including compulsory
retirement (provided the employee fulfils the conditions
under Rule 56 (j); it may also resortif
the employee is
culpable for the “incident” and the facts so warrant,
invocation of Article 311 (2) (c) and summary dismissal or
penalty of similar nature. The possibility of other officers not
being governed by the rule, or that in other cases it was not
invoked, therefore, cannot be a ground to hold it arbitrary or
invalid.”
39. A deputationist is an employee who has been assigned to
another department from his/her parent department. The law
regarding employees on deputation is well settled. As regards the
matter of disciplinary control, this Court, in State of U.P. & Ors. vs.
Ram Naresh Lal10 has observed that a deputationist continues to be
governed by the rules of his/her parent department and is deemed to
be under the disciplinary control of his/her parent department unless
absorbed permanently in the transferee department. In Kunal
10 (1970) 3 SCC 173
29
Nanda vs. Union of India & Anr.11, it was further observed that the
basic principle underlying deputation is that the person concerned
can always and at any time be repatriated back to his parent
department. By sending back the person to his parent department,
any adverse effect on the Organisation (R&AW) including of reasons of
security would be averted. Therefore, a deputationist stands on an
altogether different footing than a direct recruit of the
Organisation/Department who is exposed as an intelligence officer or
his/her becoming unemployable in the Organisation for reasons of
security. A deputationist can be repatriated back to his/her parent
department and in cases of misconduct, necessary action can also be
initiated against him/her as per the conditions of service governing
his/her parent department. In that sense, a deputationist and a
direct recruit are not stricto sensu similarly placed and thus the plea
of differential treatment meted out to them is unavailable. It would
not entail discrimination nor be violative of Article 14. Accordingly,
we must negate the challenge to constitutional validity of Rule 135.
40. We also deem it necessary, at this juncture, to note that the
mere fact of nonprescription
of inquiry under Rule 135 of the 1975
Rules, before making the order of compulsory retirement, does not go
11 (2000) 5 SCC 362
30
against the constitutionality of the Rule. Additionally, the rule does
not prohibit any inquiry and is in general line with the orders of
compulsory retirement wherein the right of outgoing employee to
participate in the process of formation of such decision is not
envisaged in law, as the underlying basis of such action is the larger
public interest and security of the Organisation; and not any culpable
conduct of the employee. Moreover, Rule 135 incorporates a language
that is selfguiding
in nature. The usage of words “exposure” and
“unemployability for reasons of security” are not insignificant, rather,
they act as quintessential stimulants for the competent authority in
passing such order. The mandatory determination of what amounts
to an exposure or what renders an employee unemployable due to
reasons of security under Rule 135, is both a precondition
and
safeguard, and incorporates within its fold the subjective satisfaction
of the competent authority in that regard. In order to reach its own
satisfaction, the authority is free to seek information from its own
sources. Thus, in cases when the ingredients of Rule 135 stand
satisfied in light of the prevalent circumstances, the need for giving
opportunity to the officer concerned by way of an inquiry is done
away with because the underlying purpose of such inquiry is not the
31
satisfaction of the principles of natural justice or of the concerned
officer, rather, it is to enable the competent authority of the
Organisation to satisfy itself in a subjective manner as regards the
fitness of the case to invoke the rule. Therefore, the procedure
underlying Rule 135 cannot be shackled by the rigidity of the
principles of natural justice in larger public interest in reference to
the structure of the Organisation in question, being a special Rule
dealing with specified cases.
41. Reverting to the challenge in reference to Article 309, suffice it to
observe that the 1975 Rules fall under the “conditions of service”
governing the appellant and have been framed under the proviso to
Article 309 of the Constitution. The phrase “conditions of service” is
not a phrase of mathematical precision and is to be understood with
its wide import. The natural, logical and grammatical meaning of the
phrase “conditions of service” would encompass wide range of
conditions relating to salary, time period of payment, pay scales,
dearness allowance, suspension and even termination of service. The
appellant’s argument that since Article 311 covers the field of
dismissal, removal and reduction in rank of an employee, it
automatically implies the exclusion of these matters from Article 309,
does not commend us.
32
42. A conjoint reading of Articles 309 and 311 reveals that Article
311 is confined to the cases wherein an inquiry has been commenced
against an employee and an action of penal nature is sought to be
taken. Whereas, Article 309 covers the broad spectrum of conditions
of service and holds a wider ground as compared to Article 311. That
would also include conditions of service beyond mere dismissal,
removal or reduction in rank. It holds merit to state that this wide
ground contemplated under Article 309 also takes in its sweep the
conditions regarding termination of service including compulsory
retirement. In Pradyat Kumar Bose vs. The Hon’ble The Chief
Justice of Calcutta High Court12, this Court touched upon the
ambit and scope of Article 309 of the Constitution and expounded
that the expression “conditions of service” takes within its sweep the
cases of dismissal or removal from service.
43. We further note that generally it is correct to say that the rules
governing conditions of service, framed under Article 309, are subject
to other provisions of the Constitution, including Article 311. The
opening words of Article 309 “
Subject to the provisions of this
Constitution” point
towards the same analogy. However, this
subjection clause shall not operate upon the rules governing
12 AIR 1956 SC 285
33
compulsory retirement. For, the legal concept of compulsory
retirement, as discussed above, is a nonpenal
measure of the
government and steers clear from the operation of Article 311, unless
it is a case of removal or dismissal clothed as compulsory retirement.
Had there been a rule providing for removal, dismissal or reduction in
rank, it would have been controlled by the safeguards under Article
311. It has also been observed in State of U.P. & Ors. vs. Babu
Ram Upadhya13 that the validity of a rule shall be hit by Article 311
only if it seeks to affect the protection offered by Article 311, and not
otherwise as in the present case.
44. Let us now address the next ground of challenge against Rule
135 of the 1975 Rules, that is the
expressions “security” and
“exposure” used in Rule 135 are of wide import and their usage
attracts the vice of vagueness and arbitrariness to the Rule. The
appellant has relied upon the priorquoted
extract of Kartar Singh
(supra) to set up this challenge on the ground of vagueness.
45. It is a settled principle of interpretation of statutes that the
words used in a statute are to be understood in the light of that
particular statute and not in isolation thereto. The expression used
in Rule 135 is “security”, as distinguished from the more commonly
13 AIR 1961 SC 751
34
used expression “security of the State” used in Article 311. This
deliberate widening of the expression by the enacting body points
towards the inclusive intent behind the expression. The word
“security” emanates from the word “secure” which, as per the Law
Lexicon, means to put something beyond hazard. It is understood
that the exposure of an intelligence officer could be hazardous not
only for the Organisation but also for the officer concerned and the
expression “security”, therefore, is to be understood as securing the
Organisational and individual interests beyond hazard and squarely
covers the security of the Organisation as well as the security of the
State. Similarly, the expression “exposure” refers to the revelation of
the identity of an intelligence officer as such to the public, in a
manner that renders such officer unemployable for the Organisation
for reasons of security.
46. It is noteworthy that in Indian constitutional jurisprudence, a
duly enacted law cannot be struck down on the mere ground of
vagueness unless such vagueness transcends in the realm of
arbitrariness. We may usefully refer to the exposition of this court in
Municipal Committee, Amritsar & Ors. vs. State of Punjab &
Ors.14 However, challenge to Rule 135 on the ground of vagueness,
14 (1969) 1 SCC 475
35
could only be sustained if the Rule does not provide a person of
ordinary intelligence with a reasonable opportunity to know the scope
of the sphere in which the Rule would operate. In the present case,
the test of reasonable man is to be applied from the point of view of a
member working in the Organisation as an intelligence officer. The
members working in the Organisation, more particularly a ClassI
Intelligence Officer, ought to know the scope, specific context and
import of the expressions – “exposed as an intelligence officer”,
“becoming unemployable in the Organisation” or “reason of security”,
as the case may be. A member working in the Organisation would
certainly be aware of the transnational repercussions emerging from
the exposure of the identity of an intelligence officer. Thus, there is
no inherent vagueness or arbitrariness in the usage of above
expressions so as to attach the vice of unconstitutionality to the Rule.
However, whether or not an executive act of exercising the power
under the Rule reeks of arbitrariness is a matter of separate
examination, to be conducted on a case to case basis and does not
call for a general declaration by the Court. To conclude, the challenge
on this ground is rejected and the impugned judgment is, therefore,
held to have answered this challenge correctly. However, despite
upholding the order of the High Court as regards the constitutionality
36
of Rule 135, we are of the view that the meaning placed by the High
Court on the expression “security”, in the impugned judgment, is of a
wide import. As regards what would constitute a threat to security,
so as to invoke Rule 135, the impugned judgment, in para 65, notes
thus:
“….. Therefore, if in a given case, any member of R&AW
indulges in behaviour that is likely to prejudice its overall
morale or lead to dissatisfaction, it may well constitute a
threat to its security.”
47. We hold that this observation does not guide us towards the true
scope of the usage of the expression “reasons of security” or what
would constitute a security threat and opens the contours of Rule 135
to uncontemplated areas. Thus, this observation shall stand effaced
in light of the interpretation of Rule 135 by us hitherto and shall not
be operative for any precedentiary purpose, or otherwise.
Legality of the order of compulsory retirement
48. Having answered the challenge to the constitutional validity of
Rule 135 in negative and settling the question of existence of power to
retire compulsorily, we embark upon the determination of the next
issue, whether the power of compulsory retirement exercised by the
respondents in the fact situation of the present case is just and legal.
According to the appellant, the respondents have acted in a mala fide
manner and the invocation of Rule 135 is an act of victimisation of
37
the appellant due to her refusal to accede to the illegitimate demands
of her superiors. The appellant has also contended that the power to
retire compulsorily could be exercised in accordance with the FR 56(j)
only.
49. The contentions of the appellant find an answer in the impugned
judgment in the following terms: “
78. Therefore, as long as a public employee’s services are
dispensed with prematurely for reasons which are germane
to the concerned body’s service rules and terms and
conditions, and are not mala fide or do not suffer from any
grave procedural impropriety, the courts would not interfere
with the decision. Considering the circumstances of this case
from this perspective, it is evident that at the higher levels of
the UOI i.e. at the stage of Cabinet Secretary, the PMO and
the Ministry of Law and Justice, various options were
explored. It is not as if the option to invoke Rule 135 was the
only choice pursued at the highest echelons of the
government. The notings disclose that the Prime Minister
had desired to consider the impact of the decision from all
perspectives. Evidently, the concern was not only with
respect to the impact upon the employee/officer i.e. the
applicant but also upon the service as a whole. Significantly,
the Prime Minister also desired – after the adverse remarks
were noticed, in the Shashi Prabha Committee’s
recommendations, that prompt triggering of complaint
mechanisms should be ensured at all government levels.
One of the notings of the Cabinet Secretary suggested the
option of pursuing disciplinary proceedings under Rule 9 of
the Central Civil Services (Pension) Rules, 1972 against the
retired Secretary level R&AW Head, Mr. Tripathi.
Given all these facts and materials on record, it cannot be
held that the government acted in a mala fide manner, in
choosing what it considered to be inevitable option i.e.
invoking Rule 135.”
38
On mala fide exercise of power
50. Reliance has also been placed upon Baikuntha Nath Das &
Anr. vs. Chief District Medical Officer, Baripada & Anr.15 in order
to support the claim of mala fides by asserting that a decision of
compulsory retirement has to be made under a detailed formal
procedure and in light of the past performance records.
51. Indubitably, in a society governed by Rule of Law, the presence
of mala fides or arbitrariness in the system of governance strikes at
the foundational values of the social order. Every public functionary,
including the three organs of government, are bound to discharge
their functions in a bona fide, unvitiated and reasonable manner. A
mala fide exercise of power is essentially a fraud on the power. The
law regarding mala fide exercise of power, running across a catena of
cases, is well settled. For an exercise of power to steer away from the
taint of mala fides, such power ought to be exercised within the
contours of the statute/law bestowing such power. Any exercise
which exceeds the limits laid down by law; or is driven by factors
extraneous or irrelevant to such exercise; or guided by malicious
intent or personal animosity; or reeks of arbitrariness must fall foul in
15 1992 (2) SCC 299
39
the eyes of law. This legal position is consistently expounded by this
Court in S. Partap Singh vs. State of Punjab16, Express
Newspapers Pvt. Ltd. & Ors. vs. Union of India & Ors.17, J.D.
Srivastava vs. State of M.P. and Others18 and Jaichand Lal
Sethia vs. State of West Bengal19. The fact situation in the present
case does not attract any of the above stated factors.
52. Notably, the appellant has not impleaded the concerned persons
against whom allegations of mala fides are made, as party
respondent. Hence, those allegations cannot be taken forward. We
may usefully advert to the exposition in Purushottam Kumar Jha
vs. State of Jharkhand & Ors.20 which records the abovestated
position of law, while addressing the allegations of mala fide exercise
of power, in the following words: “
22. As to mala fide exercise of power, the High Court held
that neither sufficient particulars were placed on record nor
the officers were joined as party respondents so as to enable
them to make the position clear by filing a counter affidavit.
In the absence of specific materials and in the absence of
officers, the Court was right in not upholding the contention
that the action was mala fide.”
16 AIR 1964 SC 72
17 (1986) 1 SCC 133
18 (1984) 2 SCC 8
19 AIR 1967 SC 483
20 (2006) 9 SCC 458
40
Resultantly, the ground of mala fide action in fact does not survive for
consideration.
On nonapplication
of mind
53. In order to analyse the challenge of nonapplication
of mind, we
deem it worthwhile to trace the timeline of relevant events to
understand the chain of proceedings.
DATE EVENT
01.02.200731.01.2009
Shri Ashok Chaturvedi became the Secretary (R), Cabinet
Secretariat, Government of India and held this post till
31.01.2009.
03.08.2007 Appellant posted as Director at the Headquarters, New
Delhi.
07.08.2007 Appellant filed complaint of sexual harassment.
26.10.2007 Appellant filed a written complaint to PMO against Shri
Ashok Chaturvedi, Secretary (R).
12.11.2007 Appellant joined as Director, Training Institute, Gurgaon.
08.08.2008 Number of complaints received by Organisation regarding
appellant’s uncalled for behaviour, unauthorized
communications, objectionable messages, contact with
media etc. and ‘Preliminary Inquiry’ was ordered by
Secretary (R). The inquiry was conducted by Shri A.K Arni
and appellant refused to participate in the inquiry upon
intimation.
19.08.2008* Information of Preliminary Inquiry conveyed to appellant,
thereby leading to the incident at PMO which led to wide
coverage in national and international media.
41
10.09.200811.09.2008
Preliminary Inquiry report concluded that most of the
charges against the appellant appear to be substantiated
and report was submitted J.S. (SA) on 10.09.2008, who
further submitted it to Secretary (R) on 11.09.2008.
22.09.2008** Proposal for compulsory retirement of appellant made by
Secretary (R).
04.04.2009 Appellant wrote letter to Shri Ajit Seth, Secretary (PG &
Coord) regarding her apprehension to be retired without
inquiry under Article 311.
17.04.2009* Incident of shouting, removal of clothes etc. at the office of
Jt. Secretary (Trg.).
18.04.2009** Proposal for invoking Rule 135 against appellant by Shri
K.S. Achar, Director in PMO.
05.05.2009** Meeting to check the possibility of any other action
against appellant, presided over by NSA and Principal
Secretary to Prime Minister. Meeting reached the
conclusion that Rule 135 was the most appropriate
option.
11.05.2009** Request by Secretary (R) to Cabinet Secretary for
expeditious decision on the proposal of compulsory
retirement.
13.05.2009** Secret Note sent to PMO by Cabinet Secretariat
suggesting compulsory retirement under Rule 135.
27.07.2009* Incident of tearing off clothes by appellant in the Supreme
Court premises.
03.10.2009 &
13.10.2009**
Request made by Secretary (R) to Cabinet Secretary for
early decision on proposal of compulsory retirement of
appellant on account of continued erratic behaviour.
13.11.2009** Communication by Secretary (R) to Cabinet Secretary
informing about the act of trespass by appellant in a
42
Director’s house in Training Campus.
26.11.2009* Appellant tried to commit suicide at Central
Administrative Tribunal.
07.12.2009** Another request by Secretary (R) for early decision on the
proposal.
16.12.2009 PMO communication conveying approval of the Prime
Minister to the recommendation of compulsory
retirement.
18.12.2009 Order of compulsory retirement issued by Cabinet
Secretariat in the name of the President of India.
* Incidents
of Exposure ** Procedural
steps
54. Given the factual matrix of the present case, we deem it proper
to carve out some important events from the aforementioned chain.
The aforementioned sequence of events reveals the chain of internal
communications in the aftermath of which the order dated
18.12.2009 was eventually passed. The secret note sent by Secretary
(R) to P.M.O., dated 11.5.2009, opinion of the then Solicitor General
of India by letter dated 21.7.2009, opinion of the Department of Legal
Affairs, Union Ministry of Law and Justice and the PMO note in which
the invocation of Rule 135 was determined as the only viable option,
constitute together a complete chain of inquiry revealing due
application of mind by the respondents into the question of
compulsory retirement. It is settled law that the scope of judicial
review is very limited in cases of compulsory retirement and is
43
permissible on the limited grounds such as nonapplication
of mind
or mala fides. Regard can be had to Pyare Mohan Lal vs. State of
Jharkhand and Others21. The abovequoted
set of events are so
eloquent that it leaves us with no other conclusion but to hold that
the action of compulsory retirement was the just option. Assuming
that some other option was also possible, it would not follow that the
decision of the competent authority to compulsorily retire the
appellant was driven by extraneous, malicious, perverse,
unreasonable or arbitrary considerations. The prerequisite
of due
application of mind seems to be fulfilled as the decision has been
reached in the aftermath of a series of discussions, exchanges and
consultations between the Organisation and the PMO over the course
of 15 months from 22.9.2008 to 18.12.2009.
55. Moreover, the preliminary inquiry conducted against the
appellant, commencing 8.8.2008, forms a crucial building block in
the chain of events and calls for our attention. This inquiry was
ordered in the aftermath of a series of complaints made against the
appellant by the fellow officers. Such complaints pertained to
misbehaviour, unauthorised communication, vulgar SMSes, media
contact etc. A notice of this inquiry was communicated to the
21 (2010) 10 SCC 693
44
appellant on 19.8.2008 (the day of the PMO incident), seeking her
participation in the inquiry. However, the appellant refused to
participate, thereby leading to an exparte
report of the inquiry, which
concluded that most of the allegations against the appellant stood
substantiated. This report was submitted to Secretary (R) on
11.9.2008 and the first proposal for invocation of Rule 135 against
the appellant was made on 22.9.2008 by Secretary (R) i.e. 11 (eleven)
days after the receipt of the report. The continuity of the above
transactions belies the allegation of nonapplication
of mind, as the
proposal seems to have been made strictly in light of the materials on
record.
56. Thus, in the present case, the appellant has not been able to
establish the factum of nonapplication
of mind in material terms and
especially because the final decision has been taken at the highest
level by the head of the Government in the aftermath of unfurling of
successive events of exposure of appellant to the public and media in
particular. In other words, even if we were to accept the argument of
personal animosity between the appellant and the then Secretary (R),
Shri Ashok Chaturvedi, it does not help the appellant’s case as the
final authority on the decision of compulsory retirement was vested in
the PMO and there is no tittle of evidence regarding exercise of
45
influence by the then Secretary (R) in the PMO. In an allegation of
this nature, defacto
prejudice needs to be proved by evidence and
this requirement of law fails to garner support from the factual
position emanating in this case.
57. Having said thus, we deem it essential to emphasize upon the
approach of the court in scrutinising the decisions taken at the
highest levels and constitutional challenge thereto. Indeed, there can
be no ipso facto presumption of validity in favour of actions taken at
higher pedestals of the dispensation. However, constitutional offices,
like that of the PMO, are entrusted with a constitutional trust by the
people of India through the holy Constitution. Such constitutional
trust absorbs within itself an inherent expectation that actions
emerging out of such functionaries are driven by bona fide
considerations of public interest and constitutional propriety.
Constitutional trust, as a concept of constitutional application, has
been duly accepted by this Court in a string of judgments. In Manoj
Narula v. Union of India22, a fiveJudge
bench of this Court
observed thus: “
92. Centuries back what Edmund Burke had said needs to
be recapitulated:
“All persons possessing a position of power ought to be
strongly and awfully impressed with an idea that they
act in trust and are to account for their conduct in
22 (2014) 9 SCC 1
46
that trust to the one great Master, Author and
Founder of Society.”
93. This Court, in Delhi Laws Act, 1912, In re, AIR 1951
SC 332, opined that the doctrine of constitutional trust is
applicable to our Constitution since it lays the foundation of
representative democracy. The Court further ruled that
accordingly, the Legislature cannot be permitted to abdicate
its primary duty, viz. to determine what the law shall be.
Though it was stated in the context of exercise of legislative
power, yet the same has signification in the present context,
for in a representative democracy, the doctrine of
constitutional trust has to be envisaged in every high
constitutional functionary.”
(emphasis supplied)
The constitutional faith invested in such functionaries has also been
reverberated in Govt. Of NCT of Delhi v. Union of India23 and
Kihota Hollohon v. Zachilhu and Others24 wherein this Court, in
reference to the constitutional trust imposed in the office of
Speaker/Chairmen of the Houses of Parliament while exercising
powers under the Tenth schedule, observed thus:
“J] That contention that the investiture of adjudicatory
functions in the Speakers/Chairmen would by itself vitiate
the provision on the ground of likelihood of political bias is
unsound and is rejected. The Speakers/Chairmen hold a
pivotal position in the scheme of parliamentary democracy
and are guardians of the rights and privileges of the House.
They are expected to and do take far reaching decisions in
the functioning of parliamentary democracy. Vestiture of
power to adjudicate questions under the Tenth Schedule in
such a constitutional functionary should not be considered
exceptionable.”
On Fundamental Rule 56(j) and Rule 9 of the Pension Rules
23 2019 (3) SCALE 107
24 (1992) 1 SCC 309
47
58. The next examination relates to the allegation of failure to
proceed in accordance with FR 56(j). In normal parlance, compulsory
retirement of a public servant is governed by the procedure laid down
in FR 56(j) as Fundamental Rule 2
provides that “the Fundamental
Rules apply to all Government servants whose pay is debitable to Civil
Estimates and to any other class of Government servants to which the
President may, by general or special order, declare them to be
applicable”. Thus, FR 56(j) is a rule of general application. To analyse
this contention, it is imperative to reproduce the relevant portion of
this rule, which reads thus:
"F.R. 56(j). Notwithstanding anything contained in this
Rule, the appropriate authority shall, if it is of the opinion
that it is in the public interest to do so, have the absolute
right to retire any Government servant after he has attained
the age of fiftyfive
years by giving him notice of not less than
three months in writing….”
59. It is clear that FR 56(j) incorporates twin elementsfirst,
the
absolute right of the Government to retire an employee and second,
the specific circumstance in which such right could be exercised i.e.,
the necessity of public interest. The rule also provides for a prior
notice of at least three months to the outgoing employee. Rule 135 of
the 1975 Rules, on the other hand, deviates from this dispensation. It
is a special provision dealing with clan of intelligence officers in the
Organisation in question. The fundamental distinction between FR
48
56(j) and Rule 135 lies in the usage of expressions “public interest”
and “security” respectively. The concern of security finds special
place in an exclusive provision that gets triggered for reasons of
security. On the other hand, FR 56(j) is in reference to public interest
generally. Framed in 1975, during the existence of FR 56(j), Rule 135
was carved out as a special provision. It is pertinent to note that Rule
135 recognises the presence of a vested and inherent right in the
government to compulsorily retire an employee and explicitly specifies
certain exclusive grounds for taking such action. Therefore, Rule 135
presents a deliberate deviation from FR 56(j) and covers special
circumstances of ‘exposure’ or ‘unemployability for reasons of
security’ as prerequisites
for its invocation. Indubitably, Rule 135 is
not exhaustive of all circumstances and matters of compulsory
retirement of intelligence officer of the Organisation. For, it holds no
operatibility beyond the specified situations therein. All other
situations (not covered by Rule 135) warranting compulsory
retirement would, therefore, continue to be governed by FR 56(j) in
reference to public interest. Thus, Rule 135 is a special provision and
operates independent of the grounds and procedure laid down in FR
56(j). In other words, once the ingredients of Rule 135 are satisfied,
then, within the meaning of Article 309, Rule 135 will get activated as
49
a ‘condition of service’ of the intelligence officer of the Organisation
and FR 56(j), being a general provision, could be invoked on the
grounds transcending beyond the stipulation in Rule 135 in public
interest. Thus, the general provision such as FR 56(j) must give way
to the special provision (Rule 135) as predicated in S.C. Jain vs.
State of Haryana and Another25.
60. Taking cue from the procedural standards prescribed in FR 56(j),
the appellant would urge that nonobservance
of the principles of
natural justice in invoking Rule 135 had rendered the final order
dated 18.12.2009 arbitrary. Though we have already stated in clear
terms that Rule 135 of the 1975 Rules is not bound by the rigidity of
the principles of natural justice, we deem it necessary to add that
natural justice is not an allpervasive
precondition
in all the
executive decisions and its extent of applicability varies in myriad set
of situations. This Court, in New Prakash Transport Co. Limited
vs. New Suwarna Transport Co. Limited26, succinctly observed
against the absoluteness of the rules of natural justice and stated
that such rules vary with varying statutory rules governing the facts
of the case. Speaking on the exclusion of such principles in the light
of specific statutory rules, this Court, in Union of India vs. Col. J.N.
25 (1985) 4 SCC 645
26 AIR 1957 SC 232
50
Sinha and Another27, quoted A.K. Kraipak & Ors. vs. Union of
India & Ors.28 with approval, and observed thus: “
8. ...It is true that if a statutory provision can be read
consistently with the principles of natural justice, the courts
should do so because it must be presumed that the
legislatures and the statutory authorities intend to act in
accordance with the principles of natural justice. But if on
the other hand a statutory provision either specifically or by
necessary implication excludes the application of any or all
the principles of natural justice then the court cannot ignore
the mandate of the legislature or the statutory authority and
read into the concerned provision the principles of natural
justice. Whether the exercise of a power conferred should be
made in accordance with any of the principles of natural
justice or not depends upon the express words of the
provision conferring the power, the nature of the power
conferred, the purpose for which it is conferred and the effect
of the exercise of that power.”
A priori, a mechanical extension of the principles of natural justice
would be against the proprieties of justice. This has been restated in
the post Maneka Gandhi vs. Union of India & Anr.29 era in a series
of judgments. This Court, in Managing Director, ECIL, Hyderabad
and Others v. B. Karunakar and Others30, summarised the post
Maneka (supra) position thus: “
20. The origins of the law can also be traced to the
principles of natural justice, as developed in the following
cases: In A.K Kraipak v. Union of India, (1969) 2 SCC 262, it
was held that the rules of natural justice operate in areas
not covered by any law. They do not supplant the law of the
land but supplement it. They are not embodied rules and
their aim is to secure justice or to prevent miscarriage of
27 (1970) 2 SCC 458
28 (1969) 2 SCC 262
29 (1978) 1 SCC 248
30 (1993) 4 SCC 727
51
justice. If that is their purpose, there is no reason why they
should not be made applicable to administrative proceedings
also especially when it is not easy to draw the line that
demarcates administrative enquiries from quasijudicial
ones. An unjust decision in an administrative inquiry may
have a more far reaching effect than a decision in a quasijudicial
inquiry. It was further observed that the concept of
natural justice has undergone a great deal of change in
recent years. What particular rule of natural justice should
apply to a given case must depend to a great extent on the
facts and circumstances of that case, the framework of the
law under which the inquiry is held and the Constitution of
the tribunal or the body of persons appointed for that
purpose. Whenever a complaint is made before a Court that
some principle of natural justice has been contravened, the
Court has to decide whether the observance of that rule was
necessary for a just decision on the facts of that case. The
rule that inquiry must be held in good faith and without bias
and not arbitrarily or unreasonably is now included among
the principles of natural justice.
21. In Chairman, Board of Mining Examination v. Ramjee,
(1977) 2 SCC 256, the Court has observed that natural
justice is not an unruly horse, no lurking landmine,
nor a
judicial cureall.
If fairness is shown by the decisionmaker
to the man proceeded against, the form, features and the
fundamentals of such essential processual propriety being
conditioned by the facts and circumstances of each
situation, no breach of natural justice can be complained of.
Unnatural expansion of natural justice, without reference
to the administrative realities and other factors of a
given case, can be exasperating. The Courts cannot look
at law in the abstract or natural justice as a mere
artifact. Nor can they fit into a rigid mould the concept
of reasonable opportunity. If the totality of
circumstances satisfies the Court that the party visited
with adverse order has not suffered from denial of
reasonable opportunity, the Court will decline to be
punctilious or fanatical as if the rules of natural justice
were sacred scriptures.
22. In Institute of Chartered Accountants of India v. L.K.
Ratna, (1986) 4 SCC 537, Charan Lal Sahu v. Union of India,
(1990) 1 SCC 613 (Bhopal Gas Leak Disaster Case) and C.B.
Gautam v. Union of India, (1993) 1 SCC 78, the doctrine that
52
the principles of natural justice must be applied in the
unoccupied interstices of the statute unless there is a clear
mandate to the contrary, is reiterated.”
(emphasis supplied)
61. Rule 135 of the 1975 Rules operates in situations of exposure of
an intelligence officer and the revelation of identity of such
intelligence officer attracts immense adverse exposure to the
Organisation and could legitimately result into an embarrassing
security breach with long lasting impacts on the integrity of the
Organisation in question, if not the country. The circumstances in
which Rule 135 operates incorporate a sense of urgency.
Indisputably, a continued presence of an exposed officer in the
Organisation in the name of participation in inquiry could seriously
jeopardize the institutional and national security interests. We deem
it essential to highlight that such a consequence could ensue even
without the knowledge or connivance of the exposed officer. Further,
no stigma or fault is imputed upon such officer in any manner by the
mere factum of such exposure. Therefore, Rule 135 clearly excludes
the observance of these principles by necessary implication. In other
words, rigid adherence to the principles of natural justice could defeat
the very object of carving out this special provision. We may usefully
refer to the exposition in ExArmymen’s
Protection Services Private
53
Limited vs. Union of India and Others31, wherein it is observed
thus:
“16. What is in the interest of national security is not a
question of law. It is a matter of policy. It is not for the court
to decide whether something is in the interest of State or not.
It should be left to the Executive. To quote Lord Hoffman in
Secy. of State for Home Deptt. vs. Rehman, (2003) 1 AC 153:
“...in the matter of national security is not a question
of law. It is a matter of judgment and policy. Under the
Constitution of the United Kingdom and most other
countries, decisions as to whether something is or is
not in the interest of national security are not a matter
for judicial decision. They are entrusted to the
executive.”
17. Thus, in a situation of national security, a party
cannot insist for the strict observance of the principles
of natural justice. In such cases it is the duty of the
Court to read into and provide for statutory exclusion, if
not expressly provided in the rules governing the field.
Depending on the facts of the particular case, it will however
be open to the court to satisfy itself whether there were
justifiable facts, and in that regard, the court is entitled to
call for the files and see whether it is a case where the
interest of national security is involved. Once the State is of
the stand that the issue involves national security, the court
shall not disclose the reasons to the affected party.”
(emphasis supplied)
62. Be it noted that the order of compulsory retirement in the
present case was preceded by a chain of preliminary inquiry,
commencing from 8.8.2008, in the highest echelons of the
government (as indicated above) and such preliminary inquiry, in our
view, is advisable. For, it is only after a preliminary inquiry that the
competent authority can satisfy itself about the existence of the
prescribed ground in a particular case. However, we reiterate that the
31 (2014) 5 SCC 409
54
participation of the concerned officer in such inquiry is neither
mandated by the jurisprudential essence of compulsory retirement or
the rigid observance of the principles of natural justice. Such
principles cannot be offered a free ride at the peril of larger public
interests bordering on reasons of security of the Organisation or the
State. Despite being harsh at times, unambiguous provisions of the
Rule under consideration offer no space for infusing any element of
judicial creativity against the legislative intent [see State of
Rajasthan vs. Leela Jain & Ors.32 and Sri Nasiruddin vs. State
Transport Appellate Tribunal33]. We hold that Rule 135 of the
1975 Rules, excludes any requirement of prior notice or abiding by
principles of natural justice.
Re: Pension claim
63. The appellant had assailed the retirement order before the High
Court in reference to the Pension Rules, on diverse counts. However,
by this appeal, the appellant has raised the following question only:
“(b) Whether the President of India can delegate his power,
under Rule 9(1) of the CCS (Pension) Rules, 1972, to modify
pension of an employee to any other authority? It is evident
that the President of India cannot delegate this power. It
means that where an employee’s pension is to be modified,
the decision is to be taken by the President on case to case
32 AIR 1965 SC 1296
33 AIR 1976 SC 331
55
basis. There cannot possibly be a generic rule like Rule 135
which can govern pension of a certain set of employees
overlooking the CCS (Pension) Rules, 1972. Existence of Rule
135 is, in fact, a case where a few officers of R&AW got
together to bestow on their own selves the power to remove
R&AW officers at their whims and fancies.”
64. This question emanates from the order dated 10.5.2010,
whereby the respondents granted provisional pension to the appellant
instead of full pension. The appellant contends that this order
amounted to withholding of the appellant’s final pension and part of
her provisional pension, without adopting the route prescribed by
Rule 9 of the Pension Rules. It is further submitted that clauses (2)(
4) of Rule 135 deviate from the pension provisions of the retired
officer and are in derogation to Rule 9(1) of the Pension Rules
whereunder only the President of India can exercise such power on a
case to case basis. Therefore, Rule 135 of the 1975 Rules is bad and
cannot be sustained.
65. The respondents would contend that Rule 9 of the Pension Rules
does not apply to the case of appellant and that provision would apply
only to an employee who has been found guilty of misconduct or
negligence during the period of service in any departmental or judicial
proceeding. Thus, contend respondents that grant of pension was
justly made in terms of provisions of Rule 135 of the 1975 Rules.
56
66. In order to examine the rival contentions, we deem it apposite to
first advert to Rule 9(1), which reads thus:
“9. Right of President to withhold or withdraw pension.
(1) The President reserves to himself the right of
withholding a pension or gratuity, or both, either in full or in
part, or withdrawing a pension in full or in part, whether
permanently or for a specified period, and of ordering
recovery from a pension or gratuity of the whole or part of
any pecuniary loss caused to the Government, if, in any
departmental or judicial proceedings, the pensioner is found
guilty of grave misconduct or negligence during the period of
service, including service rendered upon reemployment
after
retirement :
......
......”
67. The appellant may be right in contending that the power to
withhold or withdraw pension of an officer is circumscribed by Rule 9.
Indeed, it is settled law that the exercise of power of modification of
pension under Rule 9 is subject to the finding of misconduct or
negligence against the employee, reached after conducting
departmental or judicial proceedings. This Court in D.V. Kapoor vs.
Union of India and Others34, had observed thus: “
8. It is seen that the President has reserved to himself
the right to withhold pension in whole or in part therefore
whether permanently or for a specified period or he can
recover from pension of the whole or part of any pecuniary
loss caused by the Government employee to the Government
subject to the minimum. The condition precedent is that in
any departmental enquiry or the judicial proceedings, the
pensioner is found guilty of grave misconduct or negligence
during the period of his service of the original or on re34
(1990) 4 SCC 314
57
employment. The condition precedent thereto is that there
should be a finding that the delinquent is guilty of grave
misconduct or negligence in the discharge of public duty in
office, as defined in Rule 8(5), explanation (b) which is an
inclusive definition, i.e. the scope is wide of mark dependent
on the facts and circumstances in a given case. Myriad
situation may arise depending on the ingenuity with which
misconduct or irregularity is committed. It is not necessary
to further probe into the scope and meaning of the words
'grave misconduct or negligence' and under what
circumstances the findings in this regard are held proved. It
is suffice that charges in this case are that the appellant was
guilty of wilful misconduct in not reporting to duty after his
transfer from Indian High Commission at London to the
Office of External Affairs Ministry, Government of India, New
Delhi. The Inquiry Officer found that though the appellant
derelicted his duty to report to duty, it was not wilful for the
reason that he could not move due to his wife's illness and
he recommended to sympathetically consider the case of the
appellant and the President accepted this finding, but
decided to withhold gratuity and payment of pension in
consultation with the Union Public Service Commission.
9. As seen the exercise of the power by the President is
hedged with a condition precedent that a finding should be
recorded either in departmental enquiry or judicial
proceedings that the pensioner committed grave misconduct
or negligence in the discharge of his duty while in office,
subject of the charge. In the absence of such a finding the
President is without authority of law to impose penalty of
withholding pension as a measure of punishment either in
whole or in part permanently or for a specified period, or to
order recovery of the pecuniary loss in whole or in part from
the pension of the employee, subject to minimum of Rs.60.”
68. The raison d’etre of Rule 9 is to provide for an additional
safeguard on the pensionary right of an employee by vesting the
power of reduction/modification in the President of India. However, it
is a general rule and not an overarching provision of pervasive
application. Framed under Article 309 of the Constitution, this rule
operates in the area specified for it and cannot override other special
58
rules such as Rule 135. Succinctly put, this rule (Rule 9) does not
and cannot control Rule 135 of the 1975 Rules, which derives its own
independent authority from Article 309. As both the rules emanate
from Article 309, the question of illegality of one rule cannot be
premised on the argument that it acts in deviation from another rule
albeit concerning the same subject of pension. As aforementioned, in
cases where the action taken is of compulsory retirement, in exercise
of power under Rule 135, there is no contemplation of any finding of
misconduct or negligence against the employee as such. It is not
preceded by departmental or judicial proceedings. Rule 135 operates
as a selfcontained
code covering certain aspects of termination and
posttermination
benefits in an exclusive manner as a special
dispensation and is not controlled by any other rule much less
general provisions. There is no overlapping between Rule 135 and
Rule 9.
69. As regards the grant of pension to appellant, the appellant shall
be entitled to all the benefits under clauses (2)(
4) of Rule 135 in their
true letter and spirit. The impugned judgment has directed the
respondents to secure various benefits to the appellant, including the
benefit of promotion and fixation of date of pension as per the date of
notional superannuation in 2023. That direction has not been
59
challenged before us by the respondents. The pension of an employee
retired under Rule 135 is to be determined in accordance with the
date of notional superannuation and not in accordance with the date
of actual retirement. This, in our view, reflects the beneficial,
balancing and protective outlook of the Rule as it seeks to deal with
the competing considerations of public interest including security (of
the Organisation or the State) and individual interest of the outgoing
employee. Thus, we direct the respondents to abide by the
stipulations contained in clauses (2)(
4), and in particular the benefit
extended to the appellant by the High Court referred to above, in their
true letter and spirit and in right earnest, if already not done.
70. Our attention has been drawn to the order of postponement of
the date of retirement of the appellant from 18.12.2009 to
31.12.2012, by the High Court vide impugned judgment. The order
has been passed presumably in the interest of justice, as is evident
from paragraph 79 of the impugned judgment wherein the High Court
records thus:
“79. …At the same time, the peculiarities and
circumstances of this case, warrant a measure of relief to the
applicant, Ms. Bhatia as well….”
The impugned judgment records no other reasoning for ordering such
postponement. We are mindful of the peculiar circumstances of the
60
case, however, we take exception to the measure adopted by the High
Court as the same goes beyond the scope of Rule 135. The order of
compulsory retirement was passed in the name of the President of
India, the relevant part of which read thus: “…
Therefore, as per provisions contained in Rule 135 of
the R&AW (RC&S) Rules, 1975, Ms. Nisha Priya Bhatia is
hereby compulsorily retired from Government service with
immediate effect.”
(emphasis supplied)
71. The decision to retire an officer compulsorily is purely an
executive function exercised in light of the prevailing circumstances.
The scrutiny by the Court is restricted to an examination of whether
such order is smitten by mala fides or extraneous considerations.
Once such order is upheld in a Court of law in its entirety, as the
High Court rightly did, there is no question of altering or modifying
the technical aspects of such order, including the date from which it
should be given effect. The usage of words “immediate effect” makes
it amply clear that the order of compulsory retirement was meant to
take effect immediately and the date of such order could not have
been postponed by a Court of law in the garb of exercising power of
judicial review. To do so without any legal basis, could lead to
abhorrent consequences and result into a spiral of issues, including
putting to jeopardy the principle of conclusivity of the decision. Even
61
if we assume that the Court intended it as an equitable measure, we
are of the view that the same could have been achieved without
postponing the date of retirement. Subrule
(2) of Rule 135 of the
1975 Rules categorically provides for the calculation of pension as per
the date of notional superannuation as well as for the earned
promotions. However, despite our disapproval for this approach, in
the peculiar facts of this case, we stop short of modifying the High
Court’s order as regards postponement of date of retirement as the
same has not been assailed by the respondents and instead has been
complied with sans any demur.
72. We have been informed by the respondents that in lieu of the
order of postponement of retirement, consequential benefits have
already been transferred to the appellant. We, therefore, make it
clear that our observations as regards the order of postponement
shall not affect the benefits already transferred to the appellant in
terms of the High Court’s order, and no recovery be effected from the
appellant of the excess payment in that regard. Being mindful of the
peculiar circumstances of the case, we are not inclined to order any
restitution of the same.
73. The appellant has placed reliance on decisions relating to the
applicability of pension rules visavis
the officers serving in the
62
Organisation. This contention of the appellant overlooks the scope of
applicability of Rule 135 of the 1975 Rules visavis
the Pension
Rules. Rule 2(h) of the Pension Rules explicitly predicates that the
said rules (Pension Rules) shall not apply to persons whose terms and
conditions of service are regulated by or under any other law for the
time being in force. Rule 135, as noted earlier, forms part of the
‘conditions of service’ governing the officers serving in the
Organisation and thus, in the field covered by Rule 135, the Pension
Rules would be inapplicable. However, the areas that fall outside the
purview of Rule 135 would and must be governed as per the CCS
Rules, as is restated in the departmental order dated 10.5.2010
sanctioning the provisional pension of the appellant under Rule 69 of
the Pension Rules. Thus, there is no conflict between the two.
74. Before we part with this issue, we deem it incumbent upon us to
address two concerns with regard to clauses (2)(
4) of Rule 135. First,
the import of the usage of expression “may” in clauses (2)(
4) and
second, the nonavailability
of the copy of the rule to compulsorily
retired officers.
75. It is cardinal that pension is a valuable statutory right of an
employee and is not controlled by the sweet will or pleasure of the
Government. In the absence of express exceptions to the same, any
63
provision resulting in denial thereof ought to be subjected to strict
judicial scrutiny. This position of law has been succinctly exposited
by this Court in D.S. Nakara and Others vs. Union of India35,
which reads thus:
“20. The antequated notion of pension being a bounty a
gratuitous payment depending upon the sweet will or grace
of the employer not claimable as a right and, therefore, no
right to pension can be enforced through Court has been
swept under the carpet by the decision of the Constitution
Bench in Deoki Nandan Prasad vs. State of Bihar, (1971) 2
SCC 330 wherein this Court authoritatively ruled that
pension is a right and the payment of it does not depend
upon the discretion of the Government but is governed by
the rules and a Government servant coming within those
rules is entitled to claim pension. It was further held that
the grant of pension does not depend upon anyone's
discretion. It is only for the purpose of quantifying the
amount having regard to service and other allied matters
that it may be necessary for the authority to pass an order
to that effect but the right to receive pension flows to the
officer not because of any such order but by virtue of the
rules. This view was reaffirmed in State of Punjab vs. Iqbal
Singh, (1976) 2 SCC 1.”
76. Indeed, clauses (2) and (3) of Rule 135 of the 1975 Rules, posit
that the grant of pension to a compulsorily retired employee under
this rule is preceded by expression “may”. That gives an impression
that the grant of pension to the outgoing employee is subject to the
discretion of the competent authority. The setting in which
expression “may” has been placed in this provision, it must be read as
“shall”. Lest, it could be argued that a compulsorily retired officer
under Rule 135 can be denuded of pensionary benefits. That would
35 (1983) 1 SCC 305
64
result in not only loss of job for the employee concerned due to
fortuitous situation referred to in Rule 135, but also deprive him/her
of the source of his livelihood (even though the action against
him/her is not to inflict civil consequences). In fact, Rule 135 is cast
in the form of a beneficial, balancing and protective provision for the
nature of action against the employee concerned. We find it highly
incongruous to permit the rule to operate in a manner so as to leave
the scope for denial of pensionary benefits to an officer who has been
retired without his/her volition for the sake of meeting organisational
exigencies. Notably, the rule, being a special provision, does not
prescribe for any minimum age or length of service of the officer
concerned and the necessities of the situation may demand the
invocation of this rule even within short period of service. In such
circumstances, subjugating the statutory right of pension of such
officer, who is being ousted without his/her fault because of public
interest in reference to the integrity of the Organisation, would be
preposterous and in fact, violative of fundamental rights under the
Constitution.
77. We are mindful of the fact that Intelligence Organisations
(Restriction of Rights) Act, 1985, enacted by the Parliament under
Article 33, provides for restriction of certain rights conferred by Part
65
III in their application to intelligence officers. However, the same is
confined to restrictions respecting right to form associations, freedom
of speech etc. and does not stretch its sweep to curb the right to
livelihood of an officer, that too when the officer is being compulsorily
retired under Rule 135. This could not have been the object and
intent of the stated legislation. Even in the Pension Rules, Rule 40 is
the only provision which subjects the pension of a compulsorily
retired officer to a discretionary “may” provision. However, this rule
comes into play when the said retirement is ordered as a penalty and
thus, it stands on a different footing than Rule 135 of the 1975 Rules
which is not linked to the conduct of the officer nor does it entail any
consequence, either civil or penal.
78. By now it is well established that it is the duty of the Court to
give effect to the object sought to be achieved by the legislature
through the enacted provision and to prevent its defeat. In order to
fulfil this duty, the settled canons of interpretation enable this Court
to scrutinise the true import of the usage of “may” and “shall”
provisions, as reiterated by this Court in D.K. Basu vs. State of
West Bengal & Ors.36
“13. A long line of decisions of this Court starting with
Sardar Govind Rao vs. State of Madhya Pradesh, AIR 1965
SC 1222 have followed the above line of reasoning and
36 (2015) 8 SCC 744
66
authoritatively held that the use of the words 'may' or 'shall'
by themselves does not necessarily suggest that one is
directory and the other mandatory, but, the context in which
the said expressions have been used as also the scheme and
the purpose underlying the legislation will determine
whether the legislative intent really was to simply confer the
power or such conferment was accompanied by the duty to
exercise the same.
14. In The Official Liquidator vs. Dharti Dhan (P) Ltd.,
(1977) 2 SCC 166, this Court summed up the legal position
thus:
“7. In fact, it is quite accurate to say that the word
‘may’ by itself, acquires the meaning' of ‘must’ or ‘shall’
sometimes. This word however, always signifies a
conferment of power. That power may, having regard to
the context in which it occurs, and the requirements
contemplated for its exercise, have annexed to it an
obligation which compels its exercise in a certain way on
facts and circumstances from which the obligation to
exercise it in that way arises. In other words, it is the
context which can attach the obligation to the power
compelling its exercise in a certain way. The context,
both legal and factual, may impart to the power that
obligatoriness.
8. Thus, the question to be determined in such
cases always is, whether the power conferred by the use
of the word ‘may’ has, annexed to it, an obligation that,
on the fulfilment of certain legally prescribed conditions,
to be shown by evidence, a particular kind of order must
be made. If the statute leaves no room for discretion the
power has to be exercised in the manner indicated by
the other legal provisions which provide the legal
context. Even then the facts must establish that the
legal conditions are fulfilled. A power is exercised even
when the Court rejects an application to exercise it in
the particular way in which the applicant desires it to be
exercised. Where the power is wide enough to cover both
an acceptance and a refusal of an application for its
exercise, depending upon facts, it is directory or
discretionary. It is not the conferment of a power which
the word ‘may’ indicates that annexes any obligation to
its exercise but the legal and factual context of it.””
79. In the present case, as discussed above, the usage of “may”
provision in a discretionary manner could lead to highly iniquitous
results and leave scope for arbitrary exercise of discretion. Thus,
67
keeping in mind the context, object, legislative intent and the general
policy of resolving ambiguities of beneficial provisions in favour of the
employees, we hold that the expression “may” occurring in Rule 135
needs to be construed as “shall” and to make it mandatory upon the
competent authority to grant specified pension benefits, in line with
the spirit of the rule, to the compulsorily retired officer without
exception. While doing so, we are not substituting our notion of
legislative intent, rather, we are merely exercising the power to choose
between two differing constructions in order to further the intent of
the legislature, in line with the dictum in Kehar Singh & Ors. vs.
State (Delhi Administration)37.
80. Reverting to the next aspect as to whether the officers
compulsorily retired under Rule 135 must be furnished with the copy
of the stated Rules, we are of the considered view that the officers,
whose services are being terminated under Rule 135, ought to be
provided with at least the extract of relevant applicable rules
alongwith the order of compulsory retirement so that the concerned
employee would know about the entitlement and benefits under the
governing Rule for pursuing claim thereunder in accordance with the
law.
37 (1988) 3 SCC 609
68
Criminal Appeal No. 413/2020 @ SLP (Crl.) No. 10668 of 2015
81. Leave granted.
82. By this appeal, the appellant has assailed the final judgment
and order dated 2.11.2015 passed by the High Court in Crl.M.C. No.
4497 of 2015, whereby the order dated 10.9.2015 passed by the
Additional Sessions Judge, Patiala House Courts, New Delhi in C.R.
No. 18/2015 and order dated 28.4.2015 passed by Metropolitan
Magistrate, Patiala House Courts, New Delhi in C.C. No. 475/1/13,
refusing to summon the respondents as accused in the absence of
sanction under Section 197 of the Code of Criminal Procedure, 1973
(for short “the Cr.P.C.”), came to be upheld by the High Court. The
short question for consideration before us is whether the refusal to
issue summons to the respondents without prior sanction under
Section 197 of the Cr.P.C. is just and proper.
83. The appellant has alleged that the recording of observations on
her psychological state of mind by the respondents was an act of
fabrication and not within their official duties as Committee members,
so as to grant them the protection under Section 197 of the Cr.P.C.
It is further alleged that the act of constitution of another committee,
headed by Ms. Rathi Vinay Jha, acted as a proof that the first
Committee constituted by the respondents was without a legal
69
mandate and thus, members of such Committee could not be said to
have acted within their official duties. It is also urged that the
sanction was deemed to be granted as it was not refused within three
months of the proposal by virtue of Rule 19 of CCS (Conduct) Rules,
1964 (for short, ‘the Conduct Rules’) and the dictum in Vineet
Narain & Ors. vs. Union of India & Anr.38. The appellant, in her
complaint, had levelled allegations against the private respondents of
having committed offences under Section 167 of the Indian Penal
Code, 1860 (for short “the IPC”) by forging the report of the Committee
constituted to inquire into the appellant’s complaint of sexual
harassment. The trial court refused to issue summons to the private
respondents for the lack of sanction under Section 197 of the Cr.P.C.
and the High Court upheld the order of trial court.
84. Before we go into the merits of the contentions, we note that the
Department had already ruled on the appellant’s request for sanction
vide a detailed order dated 10.2.2012. That order has been brought
on record by the respondents and we deem it necessary to reproduce
the relevant extract thereof, which reads thus:
“13. WHEREAS, in so far as the allegations made against
Smt. Shashi Prabha and Smt. Anjali Pandey, who were
members of the Committee, regarding the finding recorded
by them at Sl. No. 3 of the CONCLUSIONS, which reads as
under: 38
(1998) 1 SCC 226
70
“3. Ms. Bhatia’s threat to take her own life,
allegation of threats to her from other quarters and her
behaviour on subsequent occasions (AnnexureC)
appear to indicate a disturbed state of mind. As such
counselling may benefit her.”
14. WHEREAS, apparently, these observations were made
by the Committee, in view of the fact, that the Applicant –
Ms. Nisha Priya Bhatia had threatened to take her life. It was
in this background, that all the seven members of the
Committee had unanimously observed, that her behaviour
indicates a disturbed state of mind and as such counselling
may benefit her. Therefore, no malafides can be attributed to
Smt. Shashi
Prabha and Smt. Anjali Pandey, who were the two
signatories along with five other members of the Committee,
who had signed the report dated 19th May, 2008. In view of
this, no case under Section 167 or Section 44 of IPC is made
out against Smt. Shashi Prabha and Smt. Anjali Pandey.
xxx xxx xxx
19. NOW, THEREFORE the Competent Authority after
thoroughly examining the relevant record and perusal of the
complaint dated 10.02.2010 and also Criminal Complaint
alongwith the annexures filed in the Court of Chief
Metropolitan Magistrate, District Courts, Dwarka, under
Section 200 Cr.P.C. and Sections 167 & 44 IPC, is satisfied
that no case is made out to accord sanction under Section
197 Cr.P.C. to prosecute Smt. Shashi Prabha, Joint
Secretary and Smt. Anjali Pandey, Director (now Joint
Secretary), u/s 167 and 44 of IPC as requested by Ms. Nisha
Priya Bhatia. Therefore, the request made by Ms. Nisha Priya
Bhatia in her complaint dated 10.02.2010 is hereby
declined.”
85. The position of law regarding the grant of sanction under Section
197 is well settled. The provision is crafted to protect the public
servants from the vice of frivolous complaints against the acts done
by them in the course of their official duties. Sanction under Section
197 of the Cr.P.C. is a prerequisite,
in law, for taking cognizance
71
against public servants. Nevertheless, we do not wish to dilate on the
merits of the question of sanction as the order dated 10.2.2012
refusing to accord sanction against the private respondents has not
been assailed by the appellant and absent any challenge thereto, it
continues to operate in law.
86. Additionally, the appellant has contended that the order of this
Court dated 15.12.2014 in W.P. (Crl.) No. 24 of 2012 quashing the
press note dated 19.8.2008 adds weight to her case against the
respondents. Even this submission cannot be taken forward so long
as the order dated 10.2.2012 is in force.
87. Similarly, the exposition in Inspector of Police and Another
vs. Battenapatla Venkata Ratnam and Another39 that no sanction
is necessary in cases involving allegations under Section 167 of the
IPC will be of no avail because the appellant has allowed the decision
of the competent authority dated 10.2.2012, refusing to grant
sanction against the private respondents to become final. Therefore,
we need not dilate on the grounds urged in this appeal any further.
Hence, this appeal is dismissed.
Writ Petition (Criminal) No. 24 of 2012
39 (2015) 13 SCC 87
72
88. In this writ petition, the petitioner seeks to invoke the
jurisdiction of this Court under Article 32 of the Constitution and
prays for issuance of appropriate directions to the respondents for
bringing about necessary modifications in the CCS (CCA) Rules in
tune with the guidelines laid down by this Court in Vishaka (supra).
Primarily, the attempt of the petitioner is to put to scrutiny the
procedure laid down in the CCS (CCA) Rules with respect to the
complaints of sexual harassment.
89. The petitioner contends that these rules do not provide for
sufficient participation to the victim of sexual harassment during the
inquiry into her complaint. It is further contended that the charged
officer has wide rights of participation in the inquiry process, whereas
the victim/complainant has no such corresponding rights. It is urged
that these rules do not oblige the Complaints Committee to take into
account her documents, her witnesses or her objections against the
composition of the Committee, thereby leading to unfairness and
denial of natural justice.
90. It is further contended by the petitioner that the rules do not
provide for the supply of the report of Complaints Committee to the
victim/complainant and O.M. dated 2.8.2016 also falls short of
remedying this lacunae as it comes into operation only if the
73
Complaints Committee does not recommend any action against the
charged officer, thereby leaving out situations in which an action has
been recommended and is found to be inadequate. Furthermore, it is
averred that as per O.M. dated 2.8.2016, the victim/complainant is
entitled to such report only after it has been placed before the
Disciplinary Authority and the authority has reached the decision of
not recommending any action. The specific prayer made by the
petitioner reads thus: “
1. Issue a writ or any other order directing the
Respondent No. 1 to amend the Central Civil Services
(Classification, Control & Appeal) [CCS (CCA)] Rules, 1965 –
under which enquiries are conducted against employees of
the Central Government – so as to give a victim of sexual
harassment her due representation in the process of enquiry
initiated into her complaint – thereby complying with the
Vishakha Guidelines, 1997 of this Hon’ble Court.”
91. The respondents, on the other hand, have submitted that the
provisions of O.M. dated 16.7.2015 clearly lay down the procedure to
be followed by the Complaints Committee and the victim/complainant
is sufficiently involved in the process. Further, the Complaints
Committee has been granted the status of an inquiring authority and
the procedure operates as provided in Rule 14 of CCS (CCA) Rules.
Further, it is submitted that O.M. dated 16.7.2015 vindicates the
apprehension of bias as regards the composition of the Complaints
Committee, vide paragraph 10 of the O.M., which reads thus: 74
“10. As the Complaints Committee also act as Inquiring
Authority in terms of Rule 14(2) mentioned above, care has
to be taken that at the investigation stage that impartiality is
maintained. Any failure on this account may invite
allegations of bias when conducting the inquiry and may
result in the inquiry getting vitiated. As per the instructions,
when allegations of bias are received against an Inquiring
Authority, such Inquiring Authority is required to stay the
inquiry till the Disciplinary Authority is required to stay the
inquiry till the Disciplinary Authority takes a decision on the
allegations of bias. Further, if allegations of bias are
established against one member of the Committee on this
basis, that Committee may not be allowed to conduct the
inquiry.”
92. As regards the supply of the report of Complaints Committee to
the petitioner, the respondents submit that as per O.M. dated
2.8.2016, where a Complaints Committee has not recommended any
action against the charged officer, the Disciplinary Authority shall
supply a copy of the report of the Complaints Committee to the
victim/complainant and shall consider her representation before
coming to a final conclusion. Notably, this submission is in line with
the contention raised by the petitioner and needs to be examined as
such.
93. The inquiry procedure adopted to deal with the complaints of
sexual harassment at workplace has assumed a sacrosanct position
in law and cannot be undermined under any pretext whatsoever.
This Court, in a catena of pronouncements, has made it clear that
fairness and reasonableness are inalienable parts of any procedure
75
established by law. In the present case, however, we are inclined to
observe that the relief claimed by the petitioner is ill advised.
94. The petitioner has called upon us to issue directions to the
respondents (Department of Personnel and Training) for making
additions in the CCS (CCA) Rules on certain counts. Strictly speaking,
the law as regards the contours of powers to be exercised by the
Court visavis
the law/rule making authorities, is well settled and is
premised on the tenets of judicial restraint and separation of powers.
In other words, the Court should be loath to issue direction to the
law/rule making bodies to enact a particular rule, more so when the
alleged shortcomings in the rules are not even a part of the subject
matter at hand. In Divisional Manager, Aravali Golf Club & Anr.
vs. Chander Hass & Anr.40, this Court expounded the essence of
judicial powers of this Court by relying upon Montesquieu’s The Spirit
of Laws and noted thus: “
21. The theory of separation of powers first propounded by
the French thinker Montesquieu (in his book `The Spirit of
Laws') broadly holds the field in India too. In chapter XI of
his book `The Spirit of Laws' Montesquieu writes:
“When the legislative and executive powers are united
in the same person, or in the same body of
magistrates, there can be no liberty; because
apprehensions may arise, lest the same monarch or
senate should enact tyrannical laws, to execute them
in a tyrannical manner.”
40 (2008) 1 SCC 683
76
Again, there is no liberty, if the judicial power be
not separated from the legislative and executive.
Were it joined with the legislative, the life and
liberty of the subject would be exposed to arbitrary
control; for the judge would be then the legislator.
Were it joined to the executive power, the judge
might behave with violence and oppression.
There would be an end of everything, were the same
man or the same body, whether of the nobles or of the
people, to exercise those three powers, that of enacting
laws, that of executing the public resolutions, and of
trying the causes of individuals.”
(emphasis supplied)
In Social Action Forum for Manav Adhikar and Another vs.
Union of India, Ministry of Law and Justice & Ors.41, this Court
had the occasion to delve into the same aspect again and observed
thus: “
40. We have earlier stated that some of the directions
issued in Rajesh Sharma vs. State of U.P., (2018) 10 SCC 472
have the potential to enter into the legislative field. A threeJudge
Bench in Suresh Seth v. Indore Municipal Corporation,
(2005) 13 SCC 287 ruled thus: (Suresh Seth case, SCC pp.
28889,
para 5)
5. ... In our opinion, this is a matter of policy for the
elected representatives of people to decide and no
direction in this regard can be issued by the Court.
That apart this Court cannot issue any direction to the
legislature to make any particular kind of enactment.
Under our constitutional scheme Parliament and
Legislative Assemblies exercise sovereign power to
enact laws and no outside power or authority can
issue a direction to enact a particular piece of
legislation. In Supreme Court Employees' Welfare Assn.
v. Union of India, (1989) 4 SCC 187 it has been held
that no court can direct a legislature to enact a
particular law. Similarly, when an executive authority
exercises a legislative power by way of a subordinate
legislation pursuant to the delegated authority of a
legislature, such executive authority cannot be asked
41 (2018) 10 SCC 443
77
to enact a law which it has been empowered to do
under the delegated legislative authority. ....”
95. Be that as it may, in our opinion, the petitioner seems to have
confused two separate inquiries conducted under two separate
dispensations as one cohesive process. The legal machinery to deal
with the complaints of sexual harassment at workplace is well
delineated by the enactment of The Sexual Harassment of Women at
Workplace Act, 2013 (hereinafter “2013 Act”) and the Rules framed
thereunder. There can be no departure whatsoever from the
procedure prescribed under the 2013 Act and Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Rules,
2013 (for short, “the 2013 Rules”), either in matters of complaint or of
inquiry thereunder. The sanctity of such procedure stands
undisputed. The inquiry under the 2013 Act is a separate inquiry of
a factfinding
nature. Post the conduct of a factfinding
inquiry under
the 2013 Act, the matter goes before the department for a
departmental inquiry under the relevant departmental rules [CCS
(CCA) Rules in the present case] and accordingly, action follows. The
said departmental inquiry is in the nature of an inhouse
mechanism
wherein the participants are restricted and concerns of locus are
strict and precise. The ambit of such inquiry is strictly confined
between the delinquent employee and the concerned department
78
having due regard to confidentiality of the procedure. The two
inquiries cannot be mixed up with each other and similar procedural
standards cannot be prescribed for both. In matters of departmental
inquiries, prosecution, penalties, proceedings, action on inquiry
report, appeals etc. in connection with the conduct of the government
servants, the CCS (CCA) Rules operate as a selfcontained
code for
any departmental action and unless an existing rule is challenged
before this Court on permissible grounds, we think, it is unnecessary
for this Court to dilate any further.
96. The notifications issued by the respondent in the form of O.Ms.
are in the nature of departmental instructions and are intended to
supplement the 2013 Act and Rules framed thereunder. Such
notifications do not operate in derogation of the 2013 Act, rather, they
act in furtherance of the same. The O.M. dated 02.08.2016, for
instance, reads thus: “
3. In accordance with Section 18(1) of the SHWW (PPR)
Act, 2013, it has been decided that in all cases of allegation
of sexual harassment, the following procedure may be
adopted...”
97. A bare perusal of the aforequoted O.M. makes it amply clear that
the said notification furthers the procedure predicated under the
2013 Act and do not, in any manner, reduce the vigour thereof. It is
not the petitioner’s case that the 2013 Act itself is plagued with
79
procedural drawbacks. Furthermore, if the present procedural
scheme falls short of just, fair, equitable and reasonable procedural
standards as envisaged in our constitutional jurisprudence, it may
warrant intervention by the Court. Be it noted, the factual matrix in
this case relates to the pre 2013 Act era and was solely governed by
the guidelines issued by this Court in Vishaka (supra). To put it
differently, the subject matter or issues raised by the petitioner in
this petition have no bearing on the case in hand. Hence, the
examination of the argument under consideration at the instance of
the petitioner would be nothing but a hypothetical or an academic
exercise in futility.
98. In light of the above, the stated relief claimed in this writ
petition, we hold is devoid of merit.
Constitutional compensation for violation of right to life
99. We shall now consider the prayer for grant of compensation for
the violation of petitioner’s fundamental rights, in light of the factual
matrix of the case. Indeed, diverse allegations and counterallegations
have been made in the course of submissions from both
the sides, we shall restrict ourselves to the established set of facts for
consideration of this prayer. Admittedly, the petitioner filed the
80
complaint of sexual harassment on 7.8.2007. After entrusting the
inquiry of the complaint to the Committee headed by Ms. Shashi
Prabha, the Committee was found to be incompetent to enquire
against one of the charged officers and the inquiry against that officer
was finally entrusted to the Committee headed by Ms. Rathi Vinay
Jha. Be it noted that this was done only after the incident at the
PMO dated 19.8.2008 and the wide media coverage thereof.
Furthermore, the complaint made in August 2007 was not referred to
the Committee on Sexual Harassment before a delay of over three
months. The referral was made in December, 2007, after a written
complaint to the PMO on 26.10.2007 regarding the inaction of
respondents. This delay was further accentuated by the improper
constitution of the Departmental Committee. In this regard, the
enquiry report submitted by Ms. Rathi Vinay Jha Committee notes
thus:
“(iii) The Departmental Committee on Sexual Harassment
was also not properly constituted as per the Vishakha
guidelines. As per this requirement, the Complaints
Committee should “have had a third party as a
representative of an NGO or other body who is familiar with
the issue of sexual harassment.” While the Committee on
Sexual Harassment was reconstituted
on 1.11.2007. Ms.
Tara Kartha, Director, National Security Council Secretariat,
was appointed as a Member of this Committee only in April
2008. It is not clear in what manner Ms. Tara Kartha
qualified to represent an NGO or anybody familiar with the
issue of sexual harassment. So even at this stage, it was not
a Committee constituted in accordance with the Vishakha
guidelines.”
81
100. The improper handling of the complaint of sexual harassment is
also manifested in subsequent findings of the enquiry report as
produced thus:
“An examination of the Report of the Departmental
Committee on Sexual Harassment submitted in May 2008
established that the complaint by Ms. Nisha Priya Bhatia
was not given timely attention or proper enquiry and
redressal.
The written comments by Shri Ashok Chaturvedi on file
reflect his lack of concern or respect for ensuring immediate
attention to the complaint. It also reflects Shri Ashok
Chaturvedi’s lack of knowledge of the requirements in the
Vishakha guidelines.
Further even when the complaint was referred to the
Departmental Committee on Sexual Harassment, the
Secretary (R) did not pay heed to the constitution of the
committee as required in the Vishakha guidelines. The act
was, therefore, in gross violation of the Vishakha
guidelines.”
101. It is, therefore, not in dispute that the petitioner’s complaints of
sexual harassment were met with incidents showcasing procedural
ignorance and casual attitude of her seniors in the department. We
also note that, as regards the press note dated 19.8.2008, this Court
had taken strong exception to the unwarranted attacks on her
psychological status and quashed the note in its entirety vide order
dated 15.12.2014 for being violative of the petitioner’s dignity,
reputation and privacy. Despite such terse finding regarding violation
of fundamental rights, no relief of compensation was given to the
petitioner and presumably not pursued by her at that time.
82
102. The scheme of the 2013 Act, Vishaka Guidelines and Convention
on Elimination of All Forms of Discrimination Against Women
(CEDAW) predicates that a nonhostile
working environment is the
basic limb of a dignified employment. The approach of law as regards
the cases of sexual harassment at workplace is not confined to cases
of actual commission of acts of harassment, but also covers
situations wherein the woman employee is subjected to prejudice,
hostility, discriminatory attitude and humiliation in day to day
functioning at the workplace. Taking any other view would defeat the
purpose of the law. A priori, when inaction or procrastination
(intentionally or otherwise) is meted out in response to the attempt of
setting the legal machinery in motion, what is put to peril is not just
the individual cries for the assistance of law but also the foundational
tenets of a society governed by the rule of law, thereby threatening the
larger public interests. The denial of timely inquiry and by a
competent forum, inevitably results in denial of justice and violation
of fundamental right. The factual matrix of the present case is replete
with lack of sensitivity on the part of Secretary (R) qua the complaint
of sexual harassment. To wit, time taken to process the stated
complaint and improper constitution of the first Complaints
Committee (intended or unintended) in violation of the Vishaka

Guidelines, constitute an appalling conglomeration of undignified
treatment and violation of the fundamental rights of the petitioner,
more particularly Articles 14 and 21 of the Constitution.
103. This Court has, over the course of time, evolved the judicial
policy of remedying grave violations of the right to life by providing
compensation in monetary terms, apart from other reliefs. In S.
Nambi Narayanan vs. Siby Mathews & Ors.42, this Court exercised
its power to invoke the public law remedy for grant of compensation
for the violation of the right to life by observing that life itself
commands selfrespect.
It observed thus: “
40. ….. The dignity of a person gets shocked when
psychopathological
treatment is meted out to him. A
human being cries for justice when he feels that the
insensible act has crucified his selfrespect.
That warrants
grant of compensation under the public law remedy…..”
Regard may also be had to Nilabati Behera (Smt) Alias Lalita
Behera (Through the Supreme Court Legal Aid Committee) vs.
State of Orissa & Ors.43 and Rudul Sah vs. State of Bihar &
Anr.44.
42 (2018) 10 SCC 804
43 (1993) 2 SCC 746
44 (1983) 4 SCC 141
84
104. In the present case, the petitioner had faced exceedingly
insensitive and undignified circumstances due to improper handling
of her complaint of sexual harassment. Regardless of the outcome of
the inquiry into the stated complaint, the fundamental rights of the
petitioner had been clearly impinged. Taking overall view of the
circumstances, we consider this to be a fit case to award
compensation to the petitioner for the stated violation of her right to
life and dignity, quantified at Rs.1,00,000/(
Rupees one lakh only).
Had it been a case of allegations in the stated complaint of the
petitioner been substantiated in the duly conducted inquiry (which
the petitioner had failed to do), it would have been still worst and
accentuated violation of her fundamental rights warranting suitable
(higher) compensation amount. Be that as it may, the compensation
amount specified hereinabove be paid to the petitioner directly or be
deposited in the Registry of this Court and in either case, within six
weeks from today.
Writ Petition (Criminal) No. 1 of 2016
85
105. The petitioner has filed this writ petition praying for the issuance
of a writ of mandamus directing the respondents to pay for the higher
education of her daughter as a measure of compensation for the
petitioner’s sexual harassment, various criminal offences under the
IPC committed against her and consequent violation of her
fundamental rights under Articles 14, 15, 21 and 22 of the
Constitution. The main prayer in the petition before us reads thus:
“Issue a writ of mandamus/or any other appropriate
writ/order/directions that the Respondents respond to
petitioner’s letter dtd. 11.08.15 and pay for higher education
of Petitioner’s younger daughter as compensation for
Petitioner’s acute sexual harassment and for criminal
offences committed against her by their officers u/s 499,
500, 503, 506, 186, 339 & 341 IPC – as proved by various
court orders on record.”
106. The petitioner has brought on record a number of proceedings
before various fora to support her submission that the private
respondents have committed acts of criminal intimidation, defamation
and wrongful restraint against her. She has also urged that her
arrest dated 8.12.2009 led to the violation of her fundamental right
under Article 22 of the Constitution, as the arrest was illegally
orchestrated by the respondents.
86
107. The respondents, on the other hand, have contended that the
petitioner is not entitled to any such compensation. In support of
this contention, the respondents have advanced the following
submission:“
3. That the Petitioner had made a representation on
11.08.2015 to the Hon’ble Prime Minister of India regarding
financial assistance of Rs. 26,00,000/(
Rupees Twenty Six
Lakhs Only), which she required towards the payment of fee
of her daughter in MBA Course at Indian School of Business,
Hyderabad (Course of 201617).
As per the records available,
PMO had forwarded her representation dated 11.08.2015 to
Department of Higher Education, Ministry of Human
Resource Development vide letter dated 18.08.2015.
Thereafter, the Department of Higher Education examined
the matter in consultation with the University Grants
Commission. UGC had informed that Indian School of
Business, Hyderabad is not in the list maintained by it and
not under the purview of UGC. Further, Department of
Higher Education had informed that Indian School of
Business, Hyderabad is a private business school and there
is no scheme of that Ministry to finance for admission in
Indian School of Business.”
108. Being a compulsorily retired government servant, the
entitlement of the petitioner to postretirement
benefits must be
confined to the provisions under the service rules applicable to her.
The petitioner has been paid various postretirement
benefits
including pension on the basis of the date of notional superannuation
in accordance with the letter and spirit of Rule 135 of the 1975 Rules.
As regards the violation of the fundamental rights of the petitioner, we
have already considered that aspect in W.P. (Criminal) No. 24 of 2012

and have provided for compensation in that regard. However, no
compensation can be given to the petitioner in reference to the cause
stated in the writ petition under consideration.
109. The petitioner, relying upon the order of the High Court in
W.P. (C) 3704 of 2012, has contended that various Court orders on
record prove the commission of criminal intimidation and wrongful
restraint against the petitioner by the officers of the respondents. We
outrightly reject this inference purportedly deduced from the stated
order. The scope of adjudication before the High Court in the
aforementioned writ petition was limited to the regularisation of the
period of absence and grant of consequent benefits. Mere recording of
observations revolving around procedural improprieties in following
Vishaka (supra) Guidelines, consequent transfer of the petitioner and
various cross allegations between the parties, in no manner is an
adjudication on the criminal liability of the officers. In fact, the
question of criminal liability of the officers has not been adjudicated
in any preceding case so far. Thus, no additional compensation
under the pretext of the allegations under consideration can be
granted to the petitioner. Therefore, this petition must fail and is
disposed of in the aforementioned terms.
88
110. In reference to I.A. No. 79011 of 2019 filed in S.L.P. (Civil) No.
2307 of 2019, having regard to the peculiar circumstances of the
case, it is ordered that no liability as to the payment of penal house
rent charges upto next three months from today shall be recovered
from the petitioner. However, with the order of compulsory retirement
becoming final consequent to this order, the respondents are free to
get the government accommodation vacated in accordance with the
extant rules and follow due process of law after expiry of three
months period from today.
111. While parting, we need to observe that the
petitioner/appellant herein appeared and argued in person and
presented herself with utmost dignity and displayed dignified
demeanour towards the Court. Despite the underlying emotional
appeal connected with this case, the petitioner/appellant presented
her case like any other accomplished lawyer in reference to the legal
principles.
112. Accordingly, we dispose of the batch of four cases before us in
the following terms and directions: (
i) We hold that Rule 135 of the 1975 Rules is valid and does not
suffer from the vice of unconstitutionality. Further, the
expression “may” occurring in subRule
(2) of Rule 135 must be
89
read as “shall”, for giving true effect to the object of the
provision.
(ii) The impugned order of compulsory retirement passed under
Rule 135 against the appellant/petitioner is valid and legal and
the decision of the High Court in this regard stands confirmed
subject, however, to modification thereof to the extent indicated
in the present judgment.
(iii) The grant of pension to the appellant/petitioner herein shall be
computed in accordance with the date of notional
superannuation as directed by the High Court and not from the
date of actual compulsory retirement and additional sum in that
regard, if any, be paid to her within six weeks from today.
(iv) The respondent(s) (Union of India) is directed to pay
compensation quantified at Rs.1,00,000/(
Rupees one lakh
only) to the appellant/petitioner herein for violation of her
fundamental rights to life and dignity as
a result of the
improper handling of her complaint of sexual harassment. The
compensation amount be paid to the appellant/petitioner by way
of direct transfer in her bank account or be deposited in this
Court and in either case, within six weeks from today.

(v) The appellant/petitioner is granted time to vacate and hand over
peaceful possession of her official quarter for a period of three
months from today. Further, no penal house rent charges be
levied or recovered from the petitioner upto next three months
from today.
113. Accordingly, the appeals, writ petitions and pending
interlocutory applications shall stand disposed of in the above terms.
.…................................J.
(A.M. Khanwilkar)
.…................................J.
(Dinesh Maheshwari)
New Delhi;
April 24, 2020.
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