TaxTMI 
TaxTMI 
2020 (4) TMI 890
X X X X Extracts X X X X
X X X X Extracts X X X X
....ndividual interest of a person employed thereat as an intelligence officer, is being put to a legal scrutiny in light of the fundamental constitutional values of justice, liberty, equality and fraternity. 2. This common judgment shall dispose of all the four cases pertaining to and emanating from the action of compulsory retirement of the Appellant Under Rule 135 of the Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 (for short, "the 1975 Rules") on the ground of "exposure". Civil Appeal No. 2365/2020 arising out of SLP(C) No. 2307/2019 has been dealt with as lead matter involving the main grievance of the Appellant. Civil Appeal No. 2365/2020 @ SLP (Civil) No. 2307 of 2019 3. Leave granted. 4. The primary challenge is to the judgment dated 7.1.2019 (for short, 'the impugned judgment') passed in W.P. (C) No. 2735 of 2010 filed by the Respondents, whereby the High Court of Delhi at New Delhi (for short, 'the High Court') upheld the order of compulsory retirement of the Appellant, thereby reversing the order dated 16.3.2010 passed by the Central Administrative Tribunal (for short, 'the Tribunal') in O.A. No. 50 of 2010 quashing the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ee 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 ex-parte 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 of Ms. Rathi Vinay Jha, a retired officer of the Indian ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ble 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 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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. 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 prescr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....le 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 v. Col. J.N. Sinha and Anr. 1970 (2) SCC 458 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 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 dif....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ext, 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 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onstitutionality 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 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 seventy-five rupees. (ii) Family pension and death-cum-retirement gratuity admissible under the Rules for the time being in force. (3) In addition to the pension, death-cum-retirement gratuity and family pension admissible under sub-Rule (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 Sub-rule (2) for a lump-sum which shall be equal to the commuted value of that amount admissible to a person retiring on attaining the normal age of superannuation. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....overnment 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 re-appointment, 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. 31. This Court, in State of U.P. v. Sri Shyam Lal Sharma (1971) 2 SCC 514, 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 ascertain....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ons, 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 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 non-penal domain of compulsory retirement and that too against intelligence officer under specific circumstances referred to in Clauses (a) and (b) of sub-Rule (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 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 Nanda v. Union of India and Anr. (2000) 5 SCC 362, 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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. 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 termin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 and Ors. v. State of Punjab and Ors. (1969) 1 SCC 475 However, challenge to Rule 135 on the ground of vagueness, 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 ma....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ondents 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 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 no....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tate of M.P. and Ors. (1984) 2 SCC 8 and Jaichand Lal Sethia v. State of West Bengal AIR 1967 SC 483. 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 v. State of Jharkhand and Ors. (2006) 9 SCC 458 which records the above-stated 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. Resultantly, the ground of mala fide action in fact does not survive for consideration. On non-application of mind 53. In order to analyse the challenge of non-applica....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t made by Secretary (R) to Cabinet Secretary for early decision on proposal of compulsory retirement of Appellant on account of continued erratic behaviour. 13.11.2009** Communication by Secretary (R) to Cabinet Secretary informing about the act of trespass by Appellant in a 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, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d. 56. Thus, in the present case, the Appellant has not been able to establish the factum of non-application 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 title of evidence regarding exercise of influence by the then Secretary (R) in the PMO. In an allegation of this nature, de-facto 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 h....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 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 fifty-five years by giving him notice of not less than three months ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) 4 SCC 645. 60. Taking cue from the procedural standards prescribed in FR 56(j), the Appellant would urge that non-observance 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 all-pervasive pre-condition in all the executive decisions and its extent of applicability varies in myriad set of situations. This Court, in New Prakash Transport Co. Limited v. New Suwarna Transport Co. Limited AIR 1957 SC 232, 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 v. Col. J.N. Sinha and Anr. (1970) 2 SCC 458, quoted A.K. Kraipak and Ors. v. Union of India and Ors. (1969) 2 SCC 262 with approval, and observed thus: 8. ...It is true that if a statutory provision can be read consistently with the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ointed 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 land-mine, nor a judicial cure-all. If fairness is shown by the decision-maker 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 cir....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f 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 vi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d 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. 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 pen....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 Rules such as Rule 135. Succinctly put, this Rule (Rule 9) does not and ca....
X X X X Extracts X X X X
X X X X Extracts X X X X
....me, 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 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 sh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ver, 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 non-availability 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 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 Ors. v. Union of India (1983) 1 SCC 305, which reads thus: 20. The antiquated 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,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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, 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 legis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ct) Rules, 1964 (for short, 'the Conduct Rules') and the dictum in Vineet Narain and Ors. v. Union of India and Anr. (1998) 1 SCC 226. 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 Code of Criminal Procedure 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 und....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 Anr. v. Battenapatla Venkata Ratnam and Anr. (2015) 13 SCC 87 that no sanction is necessary in cases involving allegations Under Section 167 of the Indian Penal Code 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 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). ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....prehension of bias as regards the composition of the Complaints Committee, vide paragraph 10 of the O.M., which reads thus: 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 Co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iolence 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 Anr. v. Union of India, Ministry of Law and Justice and Ors. (2018) 10 SCC 443, 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 v. 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. 288-89, 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nnecessary 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 there under. 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 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 th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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. 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and Ors. (2018) 10 SCC 804, 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 self-respect. It observed thus: 40. ..... The dignity of a person gets shocked when psycho-pathological treatment is meted out to him. A human being cries for justice when he feels that the insensible act has crucified his self-respect. 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) v. State of Orissa and Ors. (1993) 2 SCC 746 and Rudul Sah v. State of Bihar and Anr. (1983) 4 SCC 141. 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 dig....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r daughter in MBA Course at Indian School of Business, Hyderabad (Course of 2016-17). 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 post-retirement benefits must be confined to the provisions under the service Rules applicable to her. The Petitioner has been paid various post-retirement 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....