NISHA PRIYA BHATIA v. UNION OF INDIA & Anr.

Judgment

596 SUPREME COURT REPORTS [2020] 10 S.C.R. 596 [2020] 10 S.C.R. A B C D E F G H NISHA PRIYA BHATIA v. UNION OF INDIA & ANR. (Civil Appeal No. 2365 of 2020) APRIL 24, 2020 [A. M KHANWILKAR AND DINESH MAHESHWARI, JJ.] Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 – r.135 – Constitutionality of – Held: r.135 is valid and does not suffer from the vice of unconstitutionality. Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 – r.135 – Appellant was posted in Research & Analysis Wing (R&AW) as Director at Headquarters, New Delhi – Complained of sexual harassment against two officers working as Secretary (R) and Joint Secretary at that time – She reportedly attempted to commit suicide – Her identity and association with R&AW became a subject of public discourse – She was declared unemployable due to exposure as an intelligence officer – Order of compulsory retirement passed u/r.135 – Appellant’s challenge upheld by Tribunal, reinstatement directed – Decision reversed by High Court – On appeal, held: Impugned order of compulsory retirement against the appellant is valid and legal – Grant of pension to the appellant to be computed in accordance with the date of notional superannuation as directed by High Court and not from the date of actual compulsory retirement – Compensation of Rs.1,00,000/- be paid to the appellant for violation of her fundamental rights to life and dignity as a result of improper handling of her complaint of sexual harassment – Constitution of India – Arts.13, 14, 21, 309- 311 – Doctrine of pleasure; Doctrine of necessity – Principles of natural justice –Central Civil Services (Classification, Control and Appeal) Rules, 1965 – The Sexual Harassment of Women at Workplace Act, 2013 – Service Law. Constitution of India – Art.311 – Operation of – Discussed. Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 – r.135(2) – Held: “may” occurring in sub- Rule (2) of r.135 be read as “shall” – Interpretation of Statutes. 596 NISHA PRIYA BHATIA v. UNION OF INDIA & ANR. 597 Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 – r.135 – Compulsory retirement under – Safeguards of Art.311, if attracted – Held: Compulsory retirement without anything more does not attract Art.311(2) – Action u/r.135 is not governed by Art.311 nor it offends the same – Thus, an action taken u/r.135 need not be preceded by the safeguards provided u/Art.311 as such – Principles of natural justice – Constitution of India – Art.311. Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 – r.135 – Compulsory retirement under, if same as dismissal/removal – Held: Effect of any action taken u/r.135 does not entail any penal consequence for the employee – Therefore, it cannot be put at the same pedestal as an action of dismissal or removal – Service Law. Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 – r.135 – Action of compulsory retirement, if violates Art.14 – Held: No – Constitution of India – Art.14. Service Law – Deputationist and a direct recruit – Difference between – Discussed – Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 – r.135. Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 – r.135 – Challenge in reference to Art.309 – Held: Rules framed u/Art.309 governing conditions of service are subject to other provisions of the Constitution including Art.311 – However, this subjection clause shall not operate upon the rules governing compulsory retirement – Constitution of India – Arts.309, 311. Constitution of India – Art.309, 311 – Scope of – Discussed. Interpretation of Statutes – “security” used in r.135 as distinguished from “security of the State” used in Art.311 – Purport of – Discussed – Constitution of India – Art. 311. Fundamental Rule 56(j)– Distinction between FR.56(j) and r.135, 1975 Rules – Discussed – Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975. A B C D E F G H 598 SUPREME COURT REPORTS [2020] 10 S.C.R. Central Civil Services (Pension) Rules, 1972 – r.9 – Raison d’etre of – Discussed – Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 – r.135 – Constitution of India – Art.309. Central Civil Services (Pension) Rules, 1972 – r.9, if overlaps with r.135 – Held: No – Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 – r.135. Intelligence Organisations (Restriction of Rights) Act, 1985 – Held: It restricts certain rights conferred by Part III in their application to intelligence officers – However, it does not curb the right to livelihood of an officer, that too when the officer is being compulsorily retired u/r.135 – Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 – r.135 – Constitution of India – Art.33 – Central Civil Services (Pension) Rules, 1972 – r.40. Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 – r.135 – Held: Officers compulsorily retired u/r.135 must be furnished with the copy of the stated Rules alongwith the order of compulsory retirement. The Sexual Harassment of Women at Workplace Act, 2013 – Enquiry under 2013 Act vis-à-vis departmental enquiry – Scope and nature of – Discussed – Central Civil Services (Classification, Control and Appeal) Rules, 1965. Compensation – Complaint of sexual harassment – Inaction/ procrastination – Violation of right to life – Held: Denial of timely inquiry and by a competent forum, inevitably results in denial of justice and violation of fundamental right – In the present case, the appellant faced exceedingly insensitive and undignified circumstances due to improper handling of her complaint of sexual harassment, impinging her fundamental rights – Compensation of Rs.1,00,000/- awarded for violation of her right to life and dignity – Constitution of India – Arts.14, 21. Words & Expressions – ‘Conditions of Service’ – Meaning of – Explained. A B C D E F G H NISHA PRIYA BHATIA v. UNION OF INDIA & ANR. 599 Disposing of the matters, the Court HELD : 1.1 Determination of the challenge to constitutionality Article 13 of the Constitution would get attracted if any law is inconsistent with or in derogation of the fundamental rights. In that case, such a law would be void to the extent of inconsistency. By virtue of clause (3), the word “law”, used in Article 13, also encompasses a statutory “rule” and thus the constitutionality of Rule 135, as being violative of Article 14 read with Article 311, could legitimately be tested on the anvil of standard tenets for determining the constitutionality of statutes. 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. A perusal of the text of Article 311 reveals that this Article comes into operation when a public servant is being subjected to dismissal, removal or reduction in the rank. The usage of words “dismissal”, “removal” or “reduction in rank” clearly points towards an intent to cover situations where a public servant is being subjected to a penal consequence. Thus, until and unless the action taken against a public servant is in the nature of punishment, the need for conducting an inquiry coupled with the grant of an opportunity of being heard, as envisaged under Article 311, does not arise at all. Succinctly put, the action contemplated against the public servant must assume the character of ‘punishment’ in order to attract the safeguards under Article 311. [Paras 26, 27 & 29][630-A-D; 632-C, D-E]

1.2 The question is: whether the action taken under Rule 135 of the 1975 Rules is in the nature of penalty or a dismissal clothed as compulsory retirement so as to attract the safeguards under Article 311 of the Constitution? The real test for this examination is to see whether the order of compulsory retirement A B C D E F G H 600 SUPREME COURT REPORTS [2020] 10 S.C.R. is occasioned by the concern of unsuitability or as a punishment for misconduct. In the present case, the appellant has been subjected to the order of compulsory retirement simpliciter, and no action in the nature of dismissal, removal or reduction in rank, as envisaged under Article 311, has been taken against the appellant. The fundamental source of compulsorily retiring an employee is derived from the “doctrine of pleasure”, as accepted in India, which springs from Article 310 of the Constitution. Rule 135 merely sets out certain grounds to act as quintessence for taking such decision and the source of power vests in Article 309 read with Article 310 of the Constitution. Rule 135 has been carved out as a special provision and is premised on the doctrine of necessity. This stand alone provision forms a small subset of the genus of Article 309 and deals strictly with cases of “exposure” of “intelligence officers” who become unemployable in the Research & Analysis Wing (“the Organisation” or “the Department”) for reasons of security. Sub-rule (1) of Rule 135 indicates that an order of compulsory retirement could be passed only on the exhaustive grounds specified therein, that is – exposure as an intelligence officer or his becoming unemployable in the Organisation due to reasons of security or disability/injuries received by an officer in the performance of his duties. Thus understood, the stipulation is objective, 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 does not entail any charge, stigma or imputation against the appellant. 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 A B C D E F G H NISHA PRIYA BHATIA v. UNION OF INDIA & ANR. 601 ingredients of this Rule and are to be understood in a chronological and natural order to discern their true essence and effect. Further, it is pertinent to note that the grounds referred to in Rule 135 nowhere contemplate it as a consequence of any fault or wrongful action on the part of the officer and unlike penal actions, do not stigmatise the outgoing officer or involve loss of benefits already earned by him and there is no element of punishment. Sub-rules (2), (3) and (4) of Rule 135 reinforce this view as the same provide for appropriate benefits such as pension, gratuity, lump sum amount etc. for the public servant who has been subjected to compulsory retirement. Thus, the employee is not faced with any loss of benefits already earned. The examination of the characteristics of such a rule is not focussed around the motive or underlying intent behind its enactment, rather, it lies in the consequence and effect of the operation of such a rule on the outgoing employee. A compulsory retirement without anything more does not attract Article 311(2). At par with other departments, in case of dismissal of an employee of this Organisation (R & AW) 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. [Paras 30, 32- 35][633-A-C; 634-D-H; 635-A-G; 636-D] State of U.P. v. Sri Shyam Lal Sharma (1971) 2 SCC 514; State of Bombay v. Saubhagchand M. Doshi AIR 1957 SC 892 : [1958] SCR 571; Dalip Singh v. State of Punjab AIR 1960 SC 1305 : [1961] 1 SCR 88; Union of India and Others v. Dulal Dutt (1993) 2 SCC 179 : [1993] 1 SCR 853 – relied on.

1.3 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 A B C D E F G H 602 SUPREME COURT REPORTS [2020] 10 S.C.R. A B C D E F G H 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. Mere loss of some future career prospects per se is no ground for invalidating an order of compulsory retirement as it may be in a given case an inevitable consequence of any such order. What needs to be delineated to attract the vice of invalidity to a statutory order is illegality, at least of a minimum standard to trigger the conscience of the Court. The action under Rule 135 is not governed by Article 311 nor it offends the same - as these two provisions operate in separate spheres and thus an action taken under the impugned Rule (Rule 135 of the 1975 Rules) need not be preceded by the safeguards provided under Article 311 of the Constitution as such. Since the action under Rule 135 is exclusive and is invoked in the specified situations in public interest in reference to the Organization and at the highest level by the head of the Government, the question of violation of Article 14 on account of the denial of equal protection of law does not arise. [Paras 36, 37][636-E-H; 637-A]

1.4 A deputationist is an employee who has been assigned to another department from his/her parent department. By sending back the person to his parent department, any adverse effect on the Organisation (R&AW) including of reasons of security would be averted. Therefore, a deputationist stands on an altogether different footing than a direct recruit of the Organisation/Department who is exposed as an intelligence officer or his/her becoming unemployable in the Organisation for reasons of security. A deputationist can be repatriated back to his/her parent department and in cases of misconduct, necessary action can also be initiated against him/her as per the conditions of service governing his/her parent department. In that sense, a deputationist and a direct recruit are not stricto sensu similarly placed and thus the plea of differential treatment meted out to them is unavailable. It would not entail discrimination nor be violative of Article 14. Accordingly, the challenge to constitutional validity of Rule 135 is negated. Additionally, the rule does not prohibit any inquiry and is in general line with the orders of compulsory retirement wherein the right of outgoing employee to participate in the process of formation of such decision is not NISHA PRIYA BHATIA v. UNION OF INDIA & ANR. 603 envisaged in law, as the underlying basis of such action is the larger public interest and security of the Organisation; and not any culpable conduct of the employee. Moreover, Rule 135 incorporates a language that is self-guiding in nature. The usage of words “exposure” and “unemployability for reasons of security” are not insignificant, rather, they act as quintessential stimulants for the competent authority in passing such order. The mandatory determination of what amounts to an exposure or what renders an employee unemployable due to reasons of security under Rule 135, is both a pre-condition and safeguard, and incorporates within its fold the subjective satisfaction of the competent authority in that regard. In order to reach its own satisfaction, the authority is free to seek information from its own sources. Thus, in cases when the ingredients of Rule 135 stand satisfied in light of the prevalent circumstances, the need for giving opportunity to the officer concerned by way of an inquiry is done away with because the underlying purpose of such inquiry is not the satisfaction of the principles of natural justice or of the concerned officer, rather, it is to enable the competent authority of the Organisation to satisfy itself in a subjective manner as regards the fitness of the case to invoke the rule. Therefore, the procedure underlying Rule 135 cannot be shackled by the rigidity of the principles of natural justice in larger public interest in reference to the structure of the Organisation in question, being a special Rule dealing with specified cases. [Paras 39, 40][637-E, G-H; 638-A-B, C-G] State of U.P. & Ors. v. Ram Naresh Lal (1970) 3 SCC 173 Kunal Nanda v. Union of India & Anr. (2000) 5 SCC 362 : [2000] 3 SCR 214 – relied on.

1.5 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 A B C D E F G H 604 SUPREME COURT REPORTS [2020] 10 S.C.R. 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. A conjoint reading of Articles 309 and 311 reveals that Article 311 is confined to the cases wherein an inquiry has been commenced against an employee and an action of penal nature is sought to be taken. Whereas, Article 309 covers the broad spectrum of conditions of service and holds a wider ground as compared to Article 311. That would also include conditions of service beyond mere dismissal, removal or reduction in rank. It holds merit to state that this wide ground contemplated under Article 309 also takes in its sweep the conditions regarding termination of service including compulsory retirement. Generally it is correct to say that the rules governing conditions of service, framed under Article 309, are subject to other provisions of the Constitution, including Article 311. The opening words of Article 309 - “Subject to the provisions of this Constitution”- point towards the same analogy. However, this subjection clause shall not operate upon the rules governing compulsory retirement. For, the legal concept of compulsory retirement is a non-penal measure of the government and steers clear from the operation of Article 311, unless it is a case of removal or dismissal clothed as compulsory retirement. Had there been a rule providing for removal, dismissal or reduction in rank, it would have been controlled by the safeguards under Article 311. The validity of a rule shall be hit by Article 311 only if it seeks to affect the protection offered by Article 311, and not otherwise as in the present case. [Paras 41-43][638-H; 639-A-D, F-H; 640-A]