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SUPREME COURT OF INDIA
A.M. Khanwilkar, Dinesh Maheshwari, JJ.
Nisha Priya Bhatia – Appellant
Versus
Union of India & Anr. – Respondents
Civil Appeal No. 2365 of 2020 (Arising out of SLP (Civil) No. 2307 of 2019) with Criminal Appeal No. 413 of 2020 (Arising out of SLP (Criminal) No. 10668 of 2015); Writ Petition (Criminal) No. 24 of 2012 and Writ Petition (Criminal) No. 1 of 2016
Decided on : 24-04-2020
(a) Constitution of India - Article 13 - Law - Also encompasses statutory "rule". (Para 26)
(b) Constitution of India - Article 311 - Attracted only if the action contemplated against the public servant assumes the character of 'punishment' - Instantly action under Rule 135, Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 does not attract Article 311(2). (Para 29, 34)
(c) Service law - Compulsory retirement - When due to concern of unsuitability or as a punishment for misconduct - Distinction between dismissal and compulsory retirement - Fundamental source of compulsorily retiring an employee derived from the "doctrine of pleasure" Article 310, Constitution of India - Order of compulsory retirement, if not stigmatic and issued as punishment resulting in loss of earned benefits, is not dismissal or removal. (Para 30, 31)
(d) Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 - Stand alone provision - Rule 135 - Rule 135 deriving from Article 309 r/w Article 310, constitution of India - Premised on doctrine of necessity - Stipulation in Rule 135 objective, well-articulated and intelligible - Covers situations, the existence of which would have an adverse impact, direct or indirect, on the integrity of the Organisation - It would neither be a case of misconduct or inefficiency or the like so as to attract penal consequences - Action under Rule 135 does not entail any charge, stigma or imputation against the employee. (Para 32, 34)
(e) Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 - Stand alone provision - Rule 135 - Validity - A special stand alone provision stipulating compulsory retirement under conditions mentioned therein - Not stigmatic because dismissal, removal, reduction in rank are governed by Rule 19, CCS (CCA) Rules, 1965 - Hence action under Rule 135 does not require enquiry or opportunity of hearing envisaged under Article 311, constitution of India - Not violative of Article 14. (Para 35, 36, 37)
(f) Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 - Rule 135 - Validity - Stand alone provision - Challenge on ground of being discriminatory inasmuch as it does not apply to deputationists - Deputationists stand on different footing than direct recruits - Deputationists can be repatriated back any time, not the direct recruits - They are not similarly placed - Rule 135 not discriminatory - Not violative of Article 14, Constitution of India. (Para 39)
(g) Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 - Rule 135 - Validity - Mere non-prescription of inquiry under rule 135 - No ground for holding it invalid - Competent authority required to form subjective satisfaction by mandatorily determining ‘exposure’ and ‘unemployability for reasons of security’ before issuing orders of compulsory retirement - Procedure underlying Rule 135 cannot be shackled by principles of natural justice in larger public interest. (Para 40)
(h) Service law - Conditions of service - To be understood with its wide import - Encompass wide range of conditions relating to salary, time period of payment, pay scales, dearness allowance, suspension and even termination of service - Articles 309 and 310, Constitution of India. (Para 41)
(i) Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 - Stand alone provision - Rule 135 - Validity - Challenge on ground of terms "security" and "exposure" being vague - Rule using word “security’ as distinguished from “security of the State” as used in Article 311 - Term security is inclusive and has to be understood as securing the Organisational and individual interests and covers security of Organisation as well as security of the State - 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 - No vagueness - Contention rejected. (Para 45, 46)
(j) Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 - Rule 135 - Order of compulsory retirement - Allegation of being mala fide - Appellant not impleading concerned persons against whom allegations of mala fides are made, as party respondent - Allegation not tenable. (Para 52)
(k) Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 - Rule 135 - Order of compulsory retirement - Allegation of non application of mind - Scope of judicial review very limited - Permissible on the limited grounds such as non-application of mind or mala fides - Instantly allegation of mala fide not sustainable - Decision reached in the aftermath of a series of discussions, exchanges and consultations between the Organisation and PMO over the course of 15 months from 22.9.2008 to 18.12.2009 - Allegation not established. (Para 54, 56)
(l) Administrative law - Administrative decisions at highest echelon of Government Judicial review - Constitutional offices, like that of PMO, are entrusted with a constitutional trust which absorbs within itself an inherent expectation of actions emerging out of such functionaries being driven by bona fide considerations of public interest and constitutional propriety. (Para 57)
(m) Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 - Rule 135 r/s Rule 56(j), Fundamental Rules - Fundamental Rules being general rules must give way to Rule 135 which is a special rule - Rule 135 excludes any requirement of prior notice or abiding by principles of natural justice. (Para 60, 61)
(n) Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 - Rule 135 r/w Rule 9(1), CCS (Pension) Rules, 1972 - Modification of pension - Modification under Rule 9 - On finding of misconduct or negligence in departmental or judicial proceedings - Power of reduction/modification vested in President of India - Rule 9 being general rule does not and cannot control Rule 135, special rule - No overlapping between Rule 135 and Rule 9. (Para 67, 68)
(o) Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 - Rule 135 - Pension - Pension of an employee retired under Rule 135 - Relevant date - Date of notional superannuation and not the date of actual retirement. (Para 69)
(p) Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 - Rule 135 - Pension - Decision to retire an officer compulsorily - Purely executive function - Scrutiny by Court restricted to examination of whether such order is smitten by mala fides or extraneous considerations - Once such order is upheld there is no question of altering or modifying the technical aspects of such order, including the date from which it should be given effect. (Para 71)
(q) Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 - Rule 135 r/w Rule 2(h), CCS (Pension) Rules - Pension rules do not apply to areas covered by Rule 135 - Areas falling outside purview of Rule 135 must be governed as per the CCS Rules - Appellant’s provisional pension sanctioned under rule 69, Pension rules - There is no conflict between the two. (Para 73)
(r) Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 - Rule 135 (2) and (3) - Use of word ‘may’ - Reading "may" in a discretionary manner could lead to highly iniquitous results and leave scope for arbitrary exercise of discretion - Therefore ‘may’ must be read as ‘shall’. (Para 76, 79)
(s) Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 - Rule 135 - Providing copy of rules to officers being retired compulsorily - Such officers ought to be provided with at least the extract of relevant applicable rules alongwith the order of compulsory retirement - This will enable the retiring officer to know about the entitlement and benefits under the governing Rule for pursuing claim thereunder in accordance with the law. (Para 80)
(t) Code of Criminal Procedure, 1973 - Section 197 - Trial court refusing to issue summons in absence of sanction u/s 197 - Order upheld by High Court - The department already rejected sanction u/s 197 by a detailed order - Same not challenged by appellant and attaining finality - No error. (Para 83, 87)
(u) Constitution of India - Separation of powers - Court should not issue direction to 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. (Para 94)
(v) CCS (CCA) Rules - Rule 14 - Complaint of sexual harassment - Procedure - Sexual Harassment of Women at Workplace Act, 2013 and Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 - Complaints committee conferred status of Inquiring authority - Inquiry under 2013 Act is of a fact-finding nature - Thereafter matter goes before the department for a departmental inquiry under the relevant departmental rules and accordingly, action follows - The two inquiries cannot be mixed up with each other and similar procedural standards cannot be prescribed for both. (Para 95)
(w) Constitution of India - Articles 14 and 21 - Denial of timely inquiry by a competent forum, results in denial of justice and violation of fundamental right - Instantly time taken to process the complaint and improper constitution of the first Complaints Committee 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 - Appellant entitled to compensation for violation of her Fundamental rights - Compensation of Rs. 1,00,000/- awarded. (Para 102, 103, 104)
Facts of the case:
The appellant joined the Research & Analysis Wing as "Directly Recruited" under the Research & Analysis Service (RAS). She worked on the post of Director, Training Institute (Gurgaon) 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.
On 7.8.2007, the appellant filed a complaint of sexual harassment against Shri Ashok Chaturvedi, working as Secretary (R) - Incharge of the Organisation and Shri Sunil Uke, working as Joint Secretary in the Organisation at that time.
The Complaints Committee was re-constituted on 1.11.2007 with the addition of Dr. Tara Kartha, Director, National Security Council Secretariat (NSCS).
The appellant reportedly attempted to commit suicide in the Prime Minister's Office on 19.8.2008 attracting wide media attention.
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.
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 Tribunal directed reinstatement of the appellant back in service holding 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.
The High Court 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.
Finding of the Court:
Rule 135 of the 1975 Rules is valid and does not suffer from the vice of unconstitutionality.
The expression "may" occurring in sub-Rule (2) of Rule 135 must be read as "shall", for giving true effect to the object of the provision.
The impugned order of compulsory retirement passed under Rule 135 against the appellant/petitioner is valid and legal.
The grant of pension to the appellant/petitioner herein shall be computed in accordance with the date of notional superannuation and not from the date of actual compulsory retirement.
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.
Result: The appeals, writ petitions and pending interlocutory applications disposed of.
JUDGMENT
A.M. Khanwilkar, J.
This lis throws up questions regarding striking a legal balance between the State-citizen 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 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.
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) - 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 up to 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 Others, (1997) 6 SCC 241 and appointed Ms. Shashi Prabha, a female officer in the Organisation, as Chairperson of a three-member 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
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