Nisha Priya Bhatia vs Shashi Prabha

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2365 OF 2020 (Arising out of SLP (Civil) No. 2307 of 2019)

Nisha Priya Bhatia ...Appellant

Versus

Union of India & Anr. ...Respondents

WITH

CRIMINAL APPEAL NO. 413 OF 2020 (Arising out of SLP (Crl.) No. 10668 of 2015)

WRIT PETITION (CRIMINAL) NO. 24 OF 2012

WRIT PETITION (CRIMINAL) NO. 1 OF 2016

JUDGMENT

A.M. Khanwilkar, J.

1. This lis throws up questions regarding striking a legal balance

between the State­citizen intercourse in the context of relationship of Signature Not Verified an employer and employee. Digitally signed by DEEPAK SINGH Date: 2020.04.24 The nature of employment under the 13:44:46 IST Reason:

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 Others 1 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 6

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.” 9

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.” 10

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 non­

publication 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 organization­ R&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 Patel 4, 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 disclosures­ voluntary or otherwise­ with 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 18

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 19

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.” 20

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 – hypothetically­ is “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 resort­ if 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

01.02.2007­ Shri Ashok Chaturvedi became the Secretary (R), Cabinet 31.01.2009 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

10.09.2008­ Preliminary Inquiry report concluded that most of the 11.09.2008 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 & Request made by Secretary (R) to Cabinet Secretary for 13.10.2009** 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 elements­ first, 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 quasi­ judicial ones. An unjust decision in an administrative inquiry may have a more far reaching effect than a decision in a quasi­ judicial 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 re­

34 (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 India 35,

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 19 th 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 Another 39 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 three­ Judge 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 counter­

allegations 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 83

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 87

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. 90

(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.