AI Drafter 
TaxTMI 
TaxTMI 
2020 (4) TMI 890
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....matters of security of the nation and individual interest of a person employed thereat as an intelligence officer, is being put to a legal scrutiny in light of the fundamental constitutional values of justice, liberty, equality and fraternity. 2. This common judgment shall dispose of all the four cases pertaining to and emanating from the action of compulsory retirement of the Appellant Under Rule 135 of the Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 (for short, "the 1975 Rules") on the ground of "exposure". Civil Appeal No. 2365/2020 arising out of SLP(C) No. 2307/2019 has been dealt with as lead matter involving the main grievance of the Appellant. Civil Appeal No. 2365/2020 @ SLP (Civil) No. 2307 of 2019 3. Leave granted. 4. The primary challenge is to the judgment dated 7.1.2019 (for short, 'the impugned judgment') passed in W.P. (C) No. 2735 of 2010 filed by the Respondents, whereby the High Court of Delhi at New Delhi (for short, 'the High Court') upheld the order of compulsory retirement of the Appellant, thereby reversing the order dated 16.3.2010 passed by the Central Administrative Tribunal (for short, 'the Tri....
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....usal: (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 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 ....
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....d 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 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 confi....
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....e 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. 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 emplo....
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....1 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 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 ....
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....e thereof was rejected in the following words: 61. It is undoubtedly true that there are some authorities (B.K. Srinivasan and Anr. v. 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....
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....e 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 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, ....
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....ghts. 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 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 o....
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....e 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 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....
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.... 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 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 Shar....
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....re 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, well-articulated 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 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 office....
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....he 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 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....
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....rary 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. and Ors. v. Ram Naresh Lal (1970) 3 SCC 173 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 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 rep....
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....he 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. 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 so....
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....curity", as distinguished from the more commonly 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 thi....
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....ll 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 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, th....
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.... 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 the eyes of law. This legal position is consistently expounded by this Court in S. Partap Singh v. State of Punjab AIR 1964 SC 72, Express Newspapers Pvt. Ltd. and Ors. v. Union of India and Ors. (1986) 1 SCC 133, J.D. Srivastava v. State 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 joi....
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....NSA and Principal Secretary to Prime Minister. Meeting reached the conclusion that Rule 135 was the most appropriate option. 11.05.2009** Request by Secretary (R) to Cabinet Secretary for expeditious decision on the proposal of compulsory retirement. 13.05.2009** Secret Note sent to PMO by Cabinet Secretariat suggesting compulsory retirement under Rule 135. 27.07.2009* Incident of tearing off clothes by Appellant in the Supreme Court premises. 03.10.2009 & 13.10.2009** Request made by Secretary (R) to Cabinet Secretary for early decision on proposal of compulsory retirement of Appellant on account of continued erratic behaviour. 13.11.2009** Communication by Secretary (R) to Cabinet Secretary informing about the act of trespass by Appellant in a 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 Secreta....
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....reby leading to an ex-parte 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 non-application 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 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 e....
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.... 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 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 ....
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....d 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 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 v. State of Haryana and Anr. (1985) 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....
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.... 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 land-mine, nor a judi....
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.... special provision. We may usefully refer to the exposition in Ex-Armymen's Protection Services Private Limited v. Union of India and Ors. (2014) 5 SCC 409, 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. v. 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....
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....CS (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 R....
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.... 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 wi....
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....ncluding 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 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, t....
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....der any restitution of the same. 73. The Appellant has placed reliance on decisions relating to the applicability of pension Rules vis-a-vis the officers serving in the Organisation. This contention of the Appellant overlooks the scope of applicability of Rule 135 of the 1975 Rules vis-a-vis 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....
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....t 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 III in their appli....
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....y 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 wo....
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....ction 197 of the Code of Criminal Procedure 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 Code of Criminal Procedure 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 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 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 ....
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....67 and 44 of Indian Penal Code 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 Code of Criminal Procedure is a pre-requisite, in law, for taking cognizance 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 Inspect....
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....ng 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: 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 ....
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....;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. 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. ....
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....epartment 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 in-house 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 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 self-contained 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 there under. Such notifications d....
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.... 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 re-constituted 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. 100. The improper handling of the complaint of sexual har....
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....ut also the foundational tenets of a society governed by the Rule of law, thereby threatening the larger public interests. The denial of timely inquiry and by a competent forum, inevitably results in denial of justice and violation of fundamental right. The factual matrix of the present case is replete with lack of sensitivity on the part of Secretary (R) qua the complaint of sexual harassment. To wit, time taken to process the stated complaint and improper constitution of the first Complaints Committee (intended or unintended) in violation of the Vishaka Guidelines, constitute an appalling conglomeration of undignified treatment and violation of the fundamental rights of the Petitioner, more particularly Articles 14 and 21 of the Constitution. 103. This Court has, over the course of time, evolved the judicial policy of remedying grave violations of the right to life by providing compensation in monetary terms, apart from other reliefs. In S. Nambi Narayanan v. Siby Mathews 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.....
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.... her by their officers Under Sections 499, 500, 503, 506, 186, 339 & 341 Indian Penal Code-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. 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 2016-17). As per the records available, PMO had forwarded her representation dated 11.08.2015 to De....
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....orementioned terms. 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 up to 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 unconstitution....