NISHA PRIYA BHATIA versus UNION OF INDIA & ANR.
[2020] 10 S.C.R. 596, Supreme Court of India, 2020
Outcome: Disposed off
Segment: Ratio
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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.
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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.
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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.
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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
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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
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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
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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
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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
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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]
Pradyat Kumar Bose v. The Hon’ble The Chief Justice
of Calcutta High Court AIR 1956 SC 285 : [1955]
 SCR 1331; State of  U.P. & Ors. v. Babu Ram Upadhya
AIR 1961 SC 751 : [1961] 2 SCR  679 – relied on.
1.6 The words used in a statute are to be understood in the
light of that particular statute and not in isolation thereto. The
expression used in Rule 135 is “security”, as distinguished from
the more commonly used expression “security of the State” used
in Article 311. This deliberate widening of the expression by the
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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. A duly enacted law
cannot be struck down on the mere ground of vagueness unless
such vagueness transcends in the realm of arbitrariness. 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 man is to be applied from the point of view
of a member working in the Organisation as an intelligence officer.
The members working in the Organisation, more particularly a
Class-I Intelligence Officer, ought to know the scope, specific
context and import of the
expressions – “exposed as an
intelligence officer”, “becoming unemployable in the
Organisation” or “reason of security”, as the case may be. A
member working in the Organisation would certainly be aware of
the transnational repercussions emerging from the exposure of
the identity of an intelligence officer. Thus, there is no inherent
vagueness or arbitrariness in the usage of above expressions so
as to attach the vice of unconstitutionality to the Rule. However,
whether or not an executive act of exercising the power under
the Rule reeks of arbitrariness is a matter of separate examination,
to be conducted on a case to case basis and does not call for a
general declaration by the Court. To conclude, the challenge on
this ground is rejected and the impugned judgment is, therefore,
held to have answered this challenge correctly. However, the
meaning placed by the High Court on the expression “security”,
in the impugned judgment, is of a wide import. This observation
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shall stand effaced in light of the interpretation of Rule 135 and
shall not be operative for any precedentiary purpose, or
otherwise. [Paras 45-47][640-C-H; 641-A-D and F]
Municipal Committee, Amritsar & Ors. v. State of Punjab
& Ors. (1969) 1 SCC 475 : [1969] 3 SCR  447 – relied
on.
2. On mala fide exercise of power A mala fide exercise of
power is essentially a fraud on the power. For an exercise of power
to steer away from the taint of mala fides, such power ought to be
exercised within the contours of the statute/law bestowing such
power. Any exercise which exceeds the limits laid down by law;
or is driven by factors extraneous or irrelevant to such exercise;
or guided by malicious intent or personal animosity; or reeks of
arbitrariness must fall foul in the eyes of law. The fact situation in
the present case does not attract any of the above stated factors.
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.
Resultantly, the ground of mala fide action in fact does not survive
for consideration. [Paras 51, 52][643-B-E and G]
S. Partap Singh v. State of Punjab AIR 1964 SC 72:
[1964] 4 SCR 733; Express Newspapers Pvt. Ltd. &
Ors. v. Union of India & Ors. (1986) 1 SCC 133 :
[1985] 3 Suppl. SCR 382 J.D. Srivastava v. State of
M.P. and Others (1984) 2 SCC 8 : [1984] 2 SCR 466;
Jaichand
Lal Sethia v. State of West Bengal AIR 1967
SC 483 : [1966] Suppl. SCR 464; Purushottam Kumar
Jha v. State of Jharkhand & Ors. (2006) 9 SCC 458 :
[2006] 1 Suppl. SCR 215 – relied on.
3. On non-application of mind The scope of judicial review
is very limited in cases of compulsory retirement and is
permissible on the limited grounds such as non-application of
mind or mala fides. The pre-requisite of due application of mind
seems to be fulfilled as the decision has been reached in the
aftermath of a series of discussions, exchanges and consultations
between the Organisation and the PMO over the course of 15
months from 22.9.2008 to 18.12.2009 (order of compulsory
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retirement). Thus, 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. Even if the argument of personal animosity
between the appellant and the then Secretary (R) was to be
accepted it does not help the appellant’s case as the final authority
on the decision of compulsory retirement was vested in the PMO
and there is no tittle of evidence regarding exercise of 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. Having said thus, it is deemed
essential to emphasize upon the approach of the court in
scrutinising the decisions taken at the highest levels and
constitutional challenge thereto. Indeed, there can be no ipso
facto presumption of validity in favour of actions taken at higher
pedestals of the dispensation. However, constitutional offices,
like that of the PMO, are entrusted with a constitutional trust by
the people of India through the holy Constitution. Such
constitutional trust absorbs within itself an inherent expectation
that actions emerging out of such functionaries are driven by bona
fide
considerations of public interest and constitutional propriety.
Constitutional trust, as a concept of constitutional application,
has been duly accepted by this Court in a string of judgments.
[Paras 54, 56, 57][646-D-E and F; 647-C-H]
Pyare Mohan Lal v. State of Jharkhand and Others
(2010) 10 SCC 693 : [2010] 11 SCR 216; Manoj
Narula v. Union of India (2014) 9 SCC 1 : [2014] 9
SCR 965; Govt. Of NCT of Delhi v. Union of India 2019
(3) SCALE 107; Kihota Hollohon v. Zachilhu and
Others (1992) 1 SCC 309 – relied on.
4. On Fundamental Rule 56(j) and Rule 9 of the Pension
Rules 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
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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. FR 56(j) incorporates twin
elements- first, the absolute right of the Government to retire an
employee and second, the specific circumstance in which such
right could be exercised i.e., the necessity of public interest. The
rule also provides for a prior notice of at least three months to
the outgoing employee. Rule 135 of the 1975 Rules, on the other
hand, deviates from this dispensation. It is a special provision
dealing with clan of intelligence officers in the Organisation in
question. The fundamental distinction between FR 56(j) and Rule
135 lies in the usage of expressions “public interest” and
“security” respectively. The concern of security finds special place
in an exclusive provision that gets triggered for reasons of
security. On the other hand, FR 56(j) is in reference to public
interest generally. Framed in 1975, during the existence of FR
56(j), Rule 135 was carved out as a special provision. Rule 135
recognises the presence of a vested and inherent right in the
government to compulsorily retire an employee and explicitly
specifies certain exclusive grounds for taking such action.
Therefore, Rule 135 presents a deliberate
deviation from FR
56(j) and covers special circumstances of ‘exposure’ or
‘unemployability for reasons of security’ as pre-requisites for its
invocation. Indubitably, Rule 135 is not exhaustive of all
circumstances and matters of compulsory retirement of
intelligence officer of the Organisation. For, it holds no
operatibility beyond the specified situations therein. All other
situations (not covered by Rule 135) warranting compulsory
retirement would, therefore, continue to be governed by FR 56(j)
in reference to public interest. Thus, Rule 135 is a special
provision and operates independent of the grounds and procedure
laid down in FR 56(j). 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
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as FR 56(j) must give way to the special provision (Rule 135).
Though it has already been stated in clear terms that Rule 135 of
the 1975 Rules is not bound by the rigidity of the principles of
natural justice, it is deemed 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. A
mechanical extension of the principles of natural justice would
be against the proprieties of justice. 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 and such preliminary inquiry is
advisable. For, it is only after a preliminary inquiry that the
competent authority can satisfy itself about the existence of the
prescribed ground in a particular case. However, it is reiterated
that the participation of the concerned officer in such inquiry is
neither mandated by the jurisprudential essence of compulsory
retirement or the rigid observance of the principles of natural
justice.[Paras 58-60, 62][649-A-C, D-H; 650-A-C, D-E; 651-B-
C; 653-G-H; 654-A-B]
S.C. Jain v. State of Haryana and Another (1985) 4
SCC 645 : [1985] 3 Suppl. SCR 727; New Prakash
Transport Co. Limited v. New Suwarna Transport Co.
Limited AIR 1957 SC 232 : [1957] SCR 98; Union of
India v. Col. J.N. Sinha & Anr. (1970) 2 SCC 458 :
[1971] 1 SCR 791; A.K. Kraipak & Ors. v. Union of
India & Ors. (1969) 2 SCC 262 : [1970] 1 SCR
457; Managing Director, ECIL, Hyderabad and Others
v. B. Karunakar and Others (1993) 4 SCC 727 : [1993]
2 Suppl. SCR 576; Ex-Armymen’s Protection Services
Private Limited v. Union of India and Others (2014) 5
SCC 409 : [2014] 3 SCR 359; State of Rajasthan v.
Leela Jain & Ors. AIR 1965 SC 1296; Sri Nasiruddin
v. State Transport Appellate Tribunal AIR 1976 SC 331
: [1976] 1 SCR  505 – relied on.
Maneka Gandhi v. Union of India & Anr. (1978) 1 SCC
248 : [1978] 2 SCR 621 – referred to.
5.1 Re: Pension claim The appellant may be right in
contending that the power to withhold or withdraw pension of an
officer is circumscribed by Rule 9, Central Civil Services
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(Pension) Rules, 1972. The exercise of power of modification of
pension under Rule 9 is subject to the finding of misconduct or
negligence against the employee, reached after conducting
departmental or judicial proceedings. 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. Rule 9 does not and cannot control Rule 135 of the
1975 Rules, which derives its own independent authority from
Article 309. As both the rules emanate from Article 309, the
question of illegality of one rule cannot be premised on the
argument that it acts in deviation from another rule albeit
concerning the same subject of pension. Rule 135 operates as a
self-contained code covering certain aspects of termination and
post-termination benefits in an exclusive manner as a special
dispensation and is not controlled by any other rule much less
general provisions. There is no overlapping between Rule 135
and Rule 9. As regards the grant of pension to appellant, the
appellant shall be entitled to all the benefits under clauses (2)-
(4) of Rule 135 in their true letter and spirit. The
impugned
judgment has directed the respondents to secure various benefits
to the appellant, including the benefit of promotion and fixation
of date of pension as per the date of notional superannuation in
2023. That direction has not been challenged by the respondents.
The pension of an employee retired under Rule 135 is to be
determined in accordance with the date of notional superannuation
and not in accordance with the date of actual retirement. This
reflects the beneficial, balancing and protective outlook of the
Rule as it seeks to deal with the competing considerations of
public interest including security (of the Organisation or the State)
and individual interest of the outgoing employee. [Paras 67-
69][655-F; 656-G-H; 657-A-F]
D.V. Kapoor v. Union of India and Others (1990) 4
SCC 314 : [1990] 3 SCR 697– relied on.
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5.2 The decision to retire an officer compulsorily is purely
an executive function exercised in light of the prevailing
circumstances. The scrutiny by the Court is restricted to an
examination of whether such order is smitten by mala fides or
extraneous considerations. Once such order is upheld in a Court
of law in its entirety, as the High Court rightly did, there is no
question of altering or modifying the technical aspects of such
order, including the date from which it should be given effect.
The usage of words “immediate effect” makes it amply clear that
the order of compulsory retirement was meant to take effect
immediately and the date of such order could not have been
postponed by a Court of law in the garb of exercising power of
judicial review. Even if it is assumed that the Court intended it as
an equitable measure, the same could have been achieved without
postponing the date of retirement. Sub-rule (2) of Rule 135 of
the 1975 Rules categorically provides for the calculation of
pension as per the date of notional superannuation as well as for
the earned promotions. However, despite disapproval for this
approach, in the peculiar facts of this case, the Court stops short
of modifying the High Court’s order as regards postponement of
date of retirement as the same has not been assailed by the
respondents and instead has been complied with sans any demur.
Further, 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 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. [Paras 71 and 73][658-C-G; 659-B-D]
5.3 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
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subjected to strict judicial scrutiny. Indeed, clauses (2) and (3) of
Rule 135 of the 1975 Rules, posit that the grant of pension to a
compulsorily retired employee under this rule is preceded by
expression “may”. That gives an impression that the grant of
pension to the outgoing employee is subject to the discretion of
the competent authority. The setting in which expression
“may”has been placed in this provision, it must be read as “shall”.
Lest, it could be argued that a compulsorily retired officer under
Rule 135 can be denuded of pensionary benefits. That would result
in not only loss of job for the employee concerned due to fortuitous
situation referred to in Rule 135, but also deprive him/her of the
source of his livelihood (even though the action against him/her
is not to inflict civil consequences). In fact, Rule 135 is cast in
the form of a beneficial, balancing and protective provision for
the nature of action against the employee concerned. 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 civil or penal. [Paras 75-
77][659-F; 660-C-E, H; 661-A-C]
D.S. Nakara and Others v. Union of India (1983) 1
SCC 305 : [1983] 2 SCR 165 – followed.
5.4 It is the duty of the Court to give effect to the object
sought to be achieved by the legislature through the enacted
provision and to prevent its defeat. In the present case, the usage
of “may” provision in a discretionary manner could lead to highly
iniquitous results and leave scope for arbitrary exercise of
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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, 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. Further, the
officers whose services are being terminated under Rule 135,
ought to be provided with at least the extract of relevant applicable
rules alongwith the order of compulsory retirement so that the
concerned employee would know about the entitlement and
benefits under the governing Rule for pursuing claim thereunder
in accordance with the law. [Paras 78-80][661-C; 662-E-F, H; 663-
A]
D.K. Basu v. State of West Bengal & Ors. (2015) 8 SCC
744 : [2015] 7 SCR 814 – followed.
Kehar Singh & Ors. v. State (Delhi Administration)
(1988) 3 SCC 609 : [1988] 2  Suppl. SCR  24 – relied
on.
6. Criminal Appeal No. 413/2020 @ SLP (Crl.) No. 10668
of 2015. The order 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. This appeal
is dismissed. [Paras 85, 87][665-B-C and E]
Inspector of Police and Another v. Battenapatla Venkata
Ratnam and Another (2015) 13 SCC 87 : [2015] 4
SCR 609 – held inapplicable.
7. Writ Petition
(Criminal) No. 24 of 2012 The legal
machinery to deal with the complaints of sexual harassment at
workplace is well delineated by the enactment of The Sexual
Harassment of Women at Workplace Act, 2013 and the Rules
framed thereunder. There can be no departure whatsoever from
the procedure prescribed under the 2013 Act and Sexual
Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Rules, 2013, either in matters of complaint or of inquiry
thereunder. The sanctity of such procedure stands undisputed.
The inquiry under the 2013 Act is a separate inquiry of a fact-
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finding nature. Post the conduct of a fact-finding inquiry under
the 2013 Act, the matter goes before the department for a
departmental inquiry under the relevant departmental rules [CCS
(CCA) Rules in the present case] and accordingly, action follows.
The said departmental inquiry is in the nature of an 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, it is unnecessary for this Court to dilate
any further. The factual matrix in this case relates to the pre 2013
Act era and was solely governed by the guidelines issued by this
Court in Vishaka. The subject matter or issues raised by the
petitioner in this petition have no bearing on the case in hand.
The stated relief claimed in this writ petition, is devoid of merit.
[Paras 95, 97][669-C-H; 670-D-E]
8.
Constitutional compensation for violation of right to life
It is not in dispute that the petitioner’s complaints of sexual
harassment were met with incidents showcasing procedural
ignorance and casual attitude of her seniors in the department.
The scheme of the 2013 Act, Vishaka Guidelines and Convention
on Elimination of All Forms of Discrimination Against Women
(CEDAW) predicates that a non-hostile working environment is
the basic limb of a dignified employment. The approach of law as
regards the cases of sexual harassment at workplace is not
confined to cases of actual commission of acts of harassment, but
also covers situations wherein the woman employee is subjected
to prejudice, hostility, discriminatory attitude and humiliation in
day to day functioning at the workplace. Taking any other view
would defeat the purpose of the law. A priori, when inaction or
procrastination (intentionally or otherwise) is meted out in
response to the attempt of setting the legal machinery in motion,
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what is put to peril is not just the individual cries for the assistance
of law but also the foundational tenets of a society governed by
the rule of law, thereby threatening the larger public interests.
The denial of timely inquiry and by a competent forum, inevitably
results in denial of justice and violation of fundamental right. The
factual matrix of the present case is replete with lack of sensitivity
on the part of Secretary (R) qua the complaint of sexual
harassment. To wit, time taken to process the stated complaint
and improper constitution of the first Complaints Committee
(intended or unintended) in violation of the Vishaka 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. 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. This is a fit case to
award compensation to the petitioner for the stated violation of
her right to life and dignity, quantified at Rs.1,00,000/-.
[Paras 101, 102 and 104][671-H; 672-A, C-F; 673-C-D]
S. Nambi Narayanan v. Siby Mathews & Ors. (2018)
10 SCC 804 : [2018] 12 SCR 51; Nilabati Behera (Smt)
Alias Lalita Behera (Through the Supreme
Court Legal
Aid Committee) v. State of Orissa & Ors. (1993) 2 SCC
746 : [1993] 2 SCR 581; Rudul Sah v. State of Bihar &
Anr. (1983) 4 SCC 141 : [1983] 3 SCR 508 – relied on.
9. Writ Petition (Criminal) No. 1 of 2016 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. The
petitioner, relying upon the order of the High Court in W.P. (C)
3704 of 2012, contended that various Court orders on record
prove the commission of criminal intimidation and wrongful
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restraint against the petitioner by the officers of the respondents.
This inference purportedly deduced from the stated order is
outrightly rejected. The question of criminal liability of the officers
has not been adjudicated in any preceding case so far. Thus, no
additional compensation under the pretext of the allegations under
consideration can be granted to the petitioner. Therefore, this
petition must fail and is disposed of in the aforementioned terms.
[Paras 108, 109][674-G-H; 675-B-D]
10. The batch of four cases is disposed of in the following
terms and directions: -
1. Rule 135 of the 1975 Rules is valid and does not suffer
from the vice of unconstitutionality. Further, the expression “may”
occurring in sub-Rule (2) of Rule 135 must be read as “shall”,
for giving true effect to the object of the provision.
2. The impugned order of compulsory retirement passed
under Rule 135 against the appellant/petitioner is valid and legal
and the decision of the High Court in this regard stands confirmed
subject, however, to modification thereof to the extent indicated
in the present judgment.
3. The grant of pension to the appellant/petitioner herein
shall be computed in accordance with the date of notional
superannuation as directed by the High Court and not from the
date of actual compulsory retirement.
4. The respondent(s) (Union of India) is to pay
compensation quantified at Rs.1,00,000/- (Rupees one lakh only)
to
the appellant/petitioner for violation of her fundamental rights
to life and dignity - as a result of the improper handling of her
complaint of sexual harassment.
5. The appellant/petitioner is granted time to vacate and
hand over peaceful possession of her official quarter for a period
of three months from today. Further, no penal house rent charges
be levied or recovered from the petitioner upto next three
months from today. [Para 112][676-F]
Satyavir Singh and Others v. Union of India and Others
(1985) 4 SCC 252 : [1985] 2 Suppl. SCR 791;
Divisional Manager, Aravali Golf Club & Anr. v.
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Chander Hass & Anr. (2008) 1 SCC 683 : [ 2007] 12
 SCR 1084; Social Action Forum for Manav Adhikar
and Another v. Union of India, Ministry of Law and
Justice & Ors. (2018) 10 SCC 443 : [2018] 12 SCR 19
– relied on.
Vishaka and Others v. State of Rajasthan and Others
(1997) 6 SCC 241 : [1997] 3 Suppl. SCR 404; Kartar
Singh v. State of Punjab (1994) 3 SCC 569 : [ 1994] 2
 SCR  375; Union of  India & Anr. v. Tulsiram Patel
(1985) 3 SCC 398 : [1985] 2 Suppl. SCR 131;
Baikuntha Nath Das & Anr. v. Chief District Medical
Officer, Baripada & Anr. (1992) 2 SCC 299 : [1992] 1
SCR  836; Vineet Narain & Ors. v. Union of India &
Anr. (1998) 1 SCC 226 : [1997] 6 Suppl. SCR 595 –
referred to.
Case Law Reference
[1997] 3 Suppl. SCR 404 
referred to
Para 7
[1994] 2 SCR 375
referred to
Para 18
[1971] 1 SCR 791 
relied on
Para 21
[1985] 2 Suppl. SCR 131  
referred to
Para 23
[1958] SCR 571 
relied on
Para 29
(1971) 2 SCC 514
relied on
Para 31
[1961] 1 SCR 88 
relied on
Para 34
[1993] 1 SCR 853
relied on
Para 34
[1985] 2 Suppl. SCR 791
relied on
Para 35
(1970) 3 SCC 173
relied on
Para 39
[2000] 3 SCR 214 
relied on
Para 39
[1955] SCR 1331 
relied on
Para 42
[1961] 2 SCR 679
relied on
Para 43
[1969] 3 SCR 447 
relied on
Para 46
[1992] 1 SCR 836
referred to
Para 50
[1964] 4 SCR 733
relied on
Para 51
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[1985] 3 Suppl. SCR 382 
relied on
Para 51
[1984] 2 SCR 466 
relied on
Para 51
[1966] Suppl. SCR 464
relied on
Para 51
[2006] 1 Suppl. SCR 215  
relied on
Para 52
[2010] 11 SCR 216  
relied on
Para 54
[2014] 9 SCR 965  
relied on
Para 57
2019 (3) SCALE 107
relied on
Para 57
(1992) 1 SCC 309
relied on
Para 57
[1985] 3 Suppl. SCR 727 
relied on
Para 59
[1957] SCR 98 
relied on
Para 60
[1970] 1 SCR 457
relied on
Para 60
[1978] 2 SCR 621 
relied on
Para 60
[1993] 2 Suppl. SCR 576 
relied on
Para 60
[2014] 3 SCR 359  
relied on
Para 61
AIR 1965 SC 1296
relied on
Para 62
[1976] 1 SCR 505 
relied on
Para 62
[1990] 3 SCR 697 
relied on
Para 67
[1983] 2 SCR 165 
followed
Para 75
[2015] 7 SCR 814  
followed
Para 78
[1988] 2 Suppl. SCR 24 
relied on
Para 79
[1997] 6 Suppl. SCR 595 
referred to
Para 83
[2015] 4 SCR 609 
held inapplicable
Para 87
[2007] 12 SCR 1084     
relied on
Para 94
[2018] 12 SCR 19  
relied on
Para 94
[2018] 12 SCR 51 
relied on
Para 103
[1993] 2 SCR 581 
relied on
Para 103
[1983] 3 SCR 508  
relied on
Para 103
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2365
of 2020.
From the Judgment and Order dated 07.01.2019 of the High Court
of Delhi at New Delhi in W.P. (C) No. 2735 of 2010.
With
Criminal Appeal No. 413 of 2020, Writ Petition (Criminal) No. 24
of 2012, Writ Petition (Criminal) No. 1 of 2016.
Ms. Nisha Priya Bhatia, (Petitioner-in-Person).
Atma Ram Nadkarni, ASG, P.S. Patwalia, Sr. Adv., Sudhir Walia,
Ms. Niharika Ahluwalia, Ms. Akanksha Kaul, Arvind Kumar Sharma,
Mukesh Kumar Maroria, Vijay Prakash, Ms. Charuwali Khanna,
Ms. Suhasani Shamra, Santosh Rebello, Ms. Saudamini Sharma, and
Ms. Charu Walikhanna, Advs. for the Respondents.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J.
1. This lis throws up questions regarding striking a legal balance
between the State-citizen intercourse in the context of relationship of an
employer and employee.The nature of employment under the umbrella
of the State is complex and is often determinative of the nature of duty
to be performed and the rights to be enjoyed by those must be correlated
thereto. To wit, higher the position and responsibilities, the extent and
quality of individual rights ought to be inversely proportional in the larger
public interest. Thereby giving rise to situations like the present case
wherein the ultimate balance between security of a State organisation
dealing with sensitive matters of security of the nation and individual
interest of a person employed thereat as an
intelligence officer, is being
put to a legal scrutiny in light of the fundamental constitutional values of
justice, liberty, equality and fraternity.
2. This common judgment shall dispose of all the four cases
pertaining to and emanating from the action of compulsory retirement of
the appellant under Rule 135 of the Research and Analysis Wing
(Recruitment, Cadre and Services) Rules, 1975 (for short, “the 1975
Rules”) on the ground of “exposure”. Civil Appeal No.2365/2020 arising
out of SLP(C) No. 2307/2019 has been dealt with as lead matter involving
the main grievance of the appellant.
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3. Leave granted.
4. The primary challenge is to the judgment dated 7.1.2019 (for
short, ‘the impugned judgment’) passed in W.P. (C) No. 2735 of 2010
filed by the respondents, whereby the High Court of Delhi at New Delhi
(for short, ‘the High Court’) upheld the order of compulsory retirement
of the appellant, thereby reversing the order dated 16.3.2010 passed by
the Central Administrative Tribunal (for short, ‘the Tribunal’) in O.A.
No. 50 of 2010 quashing the order of compulsory retirement and directing
reinstatement of the appellant back in service.
5. Briefly stated, on 22.2.1988, the appellant joined the Research
& Analysis Wing (for short “the Organisation” or “the Department”) as
“Directly Recruited” under the Research & Analysis Service (RAS).
She was assigned various portfolios during the term of service including
the post of Director, Training Institute (Gurgaon) where she remained
posted from 2.7.2004 to August, 2007. On 3.8.2007, the appellant was
posted as Director at Headquarters in New Delhi. Whilst posted at
Gurgaon and Delhi, the appellant had to interact with Shri Ashok
Chaturvedi and Shri Sunil Uke respectively, who were working in the
Organisation in various capacities at that time.
6. On 7.8.2007, the appellant filed a complaint of sexual
harassment against Shri Ashok Chaturvedi, working as Secretary (R) -
Incharge of the Organisation and
Shri Sunil Uke, working as Joint
Secretary in the Organisation at that time. The appellant alleged that the
charged officers subjected her to harassment by asking her to join the
sex racket running inside the Organisation for securing quicker promotions
and upon refusal to oblige, she was subjected to persecution. Thus began
the series of allegations regarding acts of commission and omission which
culminated into litigation continuing upto the present batch of four cases.
7. The Organisation responded to the allegations of sexual
harassment after a gap of almost three months by constituting a
Complaints Committee in accordance with the guidelines laid down in
Vishaka and Others vs. State of Rajasthan and Others1 and appointed
Ms. Shashi Prabha, a female officer in the Organisation, as Chairperson
of a three-member Complaints Committee. The Complaints Committee
so constituted did not consist of a “third party as a representative of an
1  (1997) 6 SCC 241
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NGO or other body who is familiar with the issue of sexual harassment”,
as predicated by the guidelines given in Vishaka (supra). Resultantly,
the Committee was re-constituted on 1.11.2007 with the addition of Dr.
Tara Kartha, Director, National Security Council Secretariat (NSCS).
8. It is noteworthy that, despite multiple reminders, the appellant
refused to participate in the stated proceedings before the Committee
and cited the following reasons for such refusal:
(i) Need to constitute the Departmental Committee as per
Vishakha guidelines; and,
(ii) The committee had no mandate to proceed against Shri Ashok
Chaturvedi, as Chairperson of the committee was not senior enough to
inquire into allegations against him.
9. The departmental Complaints Committee, in its 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 Administrative Service
to look into the complaints against Shri Ashok Chaturvedi.  The Committee
dealt with two aspects of allegations against Shri Ashok Chaturvedi –
firstly, allegation of not acting in accordance with the Vishaka (supra)
Guidelines on receipt of the complaint of the appellant; secondly, allegations
of actually indulging in acts falling within the ambit of sexual harassment.
We, at this juncture, are concerned only with the former allegation, that
is, the lapse committed by the Secretary (R) to act in accordance with
the elaborate Guidelines passed by this Court in Vishaka (supra). For,
Rathi Vinay Jha Committee concluded the enquiry with the finding that
no case of sexual harassment of the appellant at the hands of her
colleagues was made out on the basis of evidence on record. However,
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
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the Committee recorded a series of crucial observations. The same shall
be adverted to at an appropriate stage in the later part of this judgment.
11. Furthermore, in the aftermath of the above-mentioned incident
at PMO, the Cabinet Secretariat, through the Press Information Bureau,
released a press note dated 19.8.2008 carrying the title “Fact Sheet on
Suicide Attempt by Ms. Nisha Priya Bhatia”. This press note carried
information pertaining to the incident, her complaints against her
colleagues within the Department and the state of her mental health and
psychological condition. It is pertinent to note that the observations
regarding the disturbed mental state of the appellant were based on an
‘informal opinion’ sought by Secretary (R) from the Head of the
Department of Psychiatry, All India Institute of Medical Sciences
(AIIMS). Notably, this press note dated 19.8.2008 has been quashed by
this Court in W.P. (Crl.) No. 24 of 2012, vide order dated 15.12.2014, as
being in gross violation of human rights and individual dignity of the
appellant. The relevant part of the order notes thus:
“On proper appreciation of the aforesaid, it can definitely be stated
that the foundation and the fulcrum on which the press note was
issued has no basis. The press note, as we perceive, creates a
concavity in the reputation of a citizen and indubitably against an
officer whatever rank he/she holds. There was no reason to issue
a
press note. We can understand that the press note is issued that
a crime has been registered against the person concerned as it is
a cognizable crime but we cannot appreciate issuance of such a
press note which affects the dignity, reputation and privacy of an
officer.
In view of the aforesaid, we quash the press note dated 19.08.2008.
Needless to emphasise, when we quash a press note or anything,
it does not exist in the eye of law and it has to be understood that
it had never existed for any purpose at any point of time.”
12. The incident dated 19.8.2008 at the PMO had attracted
immense media attention across national and international portals and
culminated into a series of media reports whereby the appellant’s identity,
including her association with the Organisation, became a 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,
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furthermore, led the respondents to declare the appellant as
unemployable, having regard to the nature of work of the Organisation
of which confidentiality and secrecy are inalienable elements.
13. The declaration of unemployability of the appellant due to
exposure as an intelligence officer was made by way of an order of
compulsory retirement dated 18.12.2009 passed under Rule 135 of the
1975 Rules.  The appellant took exception to this order before the Tribunal
in O.A. No. 50/2010 on the grounds of mala fides and manifest
arbitrariness in the actions of the respondents. The appellant’s challenge
to this order was upheld by the Tribunal and, vide order dated 16.3.2010,
reinstatement of the appellant back in service was directed.  The Tribunal
had observed thus:
“15. We had gone through the materials that had been placed by
the parties. After hearing them, we are of the confirmed opinion
that the applicant has been treated with a large doze of arbitrariness
and her statutory as well as constitutional rights stand violated.
Resort to Rule 135 (1)(a) could not have been supported.
Resultantly, we are of the view that the applicant is entitled to the
reliefs as might be admissible, namely, reinstatement. We may
give below our reasons for coming to the said conclusion.”
14. After the retirement of the appellant, the provisional pension
of the appellant was fixed under Rule 69 of CCS (Pension) Rules,1972
(for short, ‘the Pension Rules’) vide order dated
10.5.2010 with effect
from the date of retirement till regularization of her period of unauthorized
absence from 29.8.2008 to 26.11.2009. The provisional pension was
authorized on the last pay drawn by her on 28.8.2008. Thereafter, the
period of unauthorized absence was regularized by the High Court vide
order dated 21.10.2013 passed in W.P. (C) No. 3704 of 2012, as upheld
by this Court in S.L.P. (Civil) C.C. No. 6762 of 2014, thereby entitling
the appellant to complete pension benefits with effect from 19.12.2009.
15. Be that as it may, the Tribunal held that the order of compulsory
retirement was violative of Articles 14 and 311 of the Constitution and
fell short of declaring Rule 135 as unconstitutional. It was content with
the following words:
“20. …..A subsidiary rule, we feel, is insufficient to annihilate the
guaranteed rights as are available to an officer, who had put in
considerable years of service. As we have found that the applicant
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
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has been denied protection of law, which is a fundamental right
under Article 14 of the Constitution, it may not be necessary for
us to further deliberate on the constitutionality of Rule 135 (1)(a)
of the R&AW (RCS) Rules or declare that the rule invoked is
void, since it operates to contravene clause (2) of Article 311.”
16. The aforementioned order of the Tribunal was impugned by
the respondents in W.P. (C) 2735/2010 before the High Court, wherein
the High Court, by an elaborate judgment, reversed the decision of the
Tribunal vide impugned judgment dated 7.1.2019 and upheld the order of
compulsory retirement issued under Rule 135. The challenge to the
constitutional validity of Rule 135 of the 1975 Rules was also examined
and negatived by the High Court. At the outset, we deem it apposite to
deal with the issue whether Rule 135 of 1975 Rules could be assailed as
unconstitutional.
Submissions re: Constitutionality of Rule 135
17. It has been contended by the appellant before us that Rule
135 is in direct contravention of Article 311 of the Constitution which
deals with “dismissal, removal or reduction in rank of persons
employed in civil capacities under the Union or the State”, as the
stated Rule modifies that right to the detriment of the employee. In
extension of the same argument, it has been contended that failure to
follow the procedural safeguards prescribed under Article 311 amounts
to a denial of equal
protection of law to the appellant, thereby violating
Article 14 of the Constitution.  Furthermore, it has also been argued that
Rule 135 cannot be saved by Article 309 of the Constitution, as Article
309 covers a separate field of recruitment and conditions of service of
public servants, whereas the legal procedure to be followed during the
termination of service is exclusively covered by Article 311 of the
Constitution. Additionally, the stated Rule 135 suffers from the vice of
vagueness.
18. To buttress this submission, the appellant has placed reliance
on the principles expounded by this Court on voidness of enactments in
Kartar Singh vs. State of Punjab2 in the following terms:
“130. It is the basic principle of legal jurisprudence that an
enactment is void for vagueness if its prohibitions are not clearly
defined. Vague laws offend several important values. It is insisted
2 (1994) 3 SCC 569
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or emphasised that laws should give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited,
so that he may act accordingly. Vague laws may trap the innocent
by not providing fair warning. Such a law impermissibly delegates
basic policy matters to policemen and also judges for resolution
on an ad hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application. More so uncertain and
undefined words deployed inevitably lead citizens to “steer far
wider of the unlawful zone ... than if the boundaries of the forbidden
areas were clearly marked.”
19. In further submissions, the appellant has also grounded her
arguments against the constitutionality of the Rule on the basis of the
Tribunal’s observation that the Rule does not provide for its publication
nor satisfies the cardinal requirement of fair play of prior notice about
the existence of such Rules to the employees serving in the Organisation.
It is urged that the appellant was not aware of the existence of the rule
and even after procuring the copy of the rule, she was required to keep
it as a secret.
20. The respondents, on the other hand, have submitted that Article
311 of the Constitution has no application to a case of compulsory or
premature retirement, as Article 311 is confined to cases involving
dismissal, removal or reduction in rank. Stated in a nutshell, the
respondents contend that Article 311 is attracted in cases involving
termination as a punishment.  Whereas, an order of compulsory retirement
under Rule 135 of the 1975 Rules, per se, does not entail a punishment.
21. The respondents have also submitted that the power under
Rule 135 to retire compulsorily flows from the proviso to Article 309 of
the Constitution, dealing with the conditions of service; and Article 310,
dealing with the doctrine of pleasure. It is further submitted that Rule
135, being a provision for compulsory retirement, does not involve any
penal consequence as is the case of Fundamental Rule 56(j) (for short
“FR 56(j)”). Additionally, reliance is placed on the exposition of this Court
in Union of India vs. Col. J.N. Sinha & Anr.3 in the following terms:
“9. Now coming to the express words of Fundamental Rule 56(j),
it says that the appropriate authority has the absolute right to retire
a government servant if it is of the opinion that it is in the public
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
3 1970 (2) SCC 458
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interest to do so. The right conferred on the appropriate authority
is an absolute one. That power can be exercised subject to the
conditions mentioned in the rule, one of which is that the concerned
authority must be of the opinion that it is in public interest to do so.
If that authority bona fide forms that opinion, the correctness of
that opinion cannot be challenged before courts. It is open to an
aggrieved party to contend that the requisite opinion has not been
formed or the decision is based on collateral grounds or that it is
an arbitrary decision…….. One of the conditions of the 1st
respondent’s service is that the government can choose to retire
him any time after he completes fifty years if it thinks that it is in
public interest to do so. Because of his compulsory retirement he
does not lose any of the rights acquired by him before retirement.
Compulsory retirement involves no civil consequences. The
aforementioned rule 56(j) is not intended for taking any penal action
against the government servants. That rule merely embodies one
of the facets of the pleasure doctrine embodied in Article 310 of
the Constitution. Various considerations may weigh with the
appropriate authority while exercising the power conferred under
the rule. In some cases, the government may feel that a particular
post may be more usefully held in public interest by an officer
more competent than the one who is holding. It may be that
the
officer who is holding the post is not inefficient but the appropriate
authority may prefer to have a more efficient officer. It may further
be that in certain key posts public interest may require that a
person of undoubted ability and integrity should be there. There is
no denying the fact that in all organizations and more so in
government organizations, there is good deal of dead wood, it is in
public interest to chop off the same. Fundamental Rule 56(j) holds
the balance between the rights of the individual government servant
and the interests of the public. While a minimum service is
guaranteed to the government servant, the government is given
power to energise its machinery and make it more efficient by
compulsorily retiring those who in its opinion should not be there
in public interest.”
Analysis of submissions and conclusions in Impugned
Judgment
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22. In the impugned judgment, the argument against non-publication
of Rule 135 of the 1975 Rules and subsequent inability of the appellant
to acquire notice thereof was rejected in the following words:
“61. It is undoubtedly true that there are some authorities (B.K.
Srinivasan & Another vs. State of Karnataka AIR 1987 SC 1054
being one such), which indicate that a norm should be published
for it to operate. However, in the present case a peculiar situation
has arisen, inasmuch as the organization- R&AW is involved in
intelligence work; during arguments, its counsel preferred to refer
it as a wing under the Cabinet Secretariat. Publication of the
conditions of service, organizational structure and possibly letting
out the work flow of different officers and employees, was
perceived as a compromise of the confidentiality that the
organization fights to maintain at all times. Given these
compulsions, this court is of the opinion that the wide kind of
publicity of R&AW’s cadre structure was not in public interest.
What is apparent from the record, however is that the applicant
was aware of the rule and did not state in her application to CAT
that she was kept in the dark; what is stated in the application
made – challenging the rule is that for the first time, she became
aware at the time of her compulsory retirement and that the rules
were kept under lock and key. The UOI’s response is that
“Rules of 1975 are kept in all the offices of R&AW, all over
the
country and in different sections of the Head Quarters. All
officials of R&AW have access to these Rules; however the
same are not available to the public in general as they are
secret.”
62. It seems from the above facts that the petitioner was aware
of the Rules, especially Rule 135. She chose to challenge it in
a separate writ petition, much after the order of compulsory
retirement. Though estoppel on this score cannot be invoked,
the court is of opinion that the lack of publicity to the rule
cannot be a valid ground, given the character of R&AW and
the compulsions that impelled it not to publish the said rule.”
23. The challenge to the constitutional validity of Rule 135 is further
based on an apprehension of abuse due to the usage of vague and open-
ended terms like “exposed” and “security”. The High Court, relying
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upon Union of India & Anr. vs. Tulsiram Patel4, rejected the attribution
of words like ‘vague’ and ‘open-ended’ to the term “security of the
State”. The High Court construed the meaning of this term, in reference
to the following dictum in Tulsiram Patel (supra):
“141 …The expression “security of the State” does not mean
security of the entire country or a whole State. It includes security
of a part of the State. It also cannot be confined to an armed
rebellion or revolt. There are various ways in which security of
the State can be affected. It can be affected by State secrets or
information relating to defence production or similar matters being
passed on to other countries, whether inimical or not to our country,
or by secret links with terrorists. It is difficult to enumerate various
ways in which security of the State can be affected. The way in
which security of the State is affected may be either open or
clandestine…..”
24. The Court reiterated that R&AW is an organization engaged
in intelligence activities that concern security interests of the nation and
thus, the width of the expression “security of the State” ought to be
perceived in light of the specific activities undertaken by the Organisation.
In this context, the impugned judgment, in para 65, records thus:
“65. The applicant’s arguments are that the expression “security”
is a vague term and does not have any meaning. It is argued by
her that the use
of the term without the use of any other expression
renders it vague and capable of misuse. In this context, the court
would reiterate that the R&AW is an organization concededly
engaged in intelligence activities that concern security interests
of the nation. In the absence of any other expression, the natural
meaning of the expression “security” would be – in the context of
Rule 135 if 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
4 (1985) 3 SCC 398
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context of the fact that members of the R&AW are covered by
Article 33 of the Constitution (as amended by the 50th Amendment
Act, 1984), it is obvious to the court that any act, to fall within the
mischief of Rule 135, should be of such nature as to pose a threat
to the security of the nation or security of R&AW. Furthermore,
the organization comprises of its members and personnel.
Therefore, if in a given case, any member of R&AW indulges in
behaviour that is likely to prejudice its overall morale or lead to
dissatisfaction, it may well constitute a threat to its security.”
25. In order to further assail the constitutionality of Rule 135 of
the 1975 Rules, a challenge was raised by the appellant against the term
“exposure” on the ground of vagueness and open-endedness. While
dealing with this objection, the High Court adopted a plain interpretation
of the expression and rejected the objection in the following terms:
“66. As regards, the applicant’s objection to the term “exposure”,
here again upon a plain interpretation, it is evident that if the identity
of any member of R&AW, which ought not to be known widely,
is so made known or published, and that incident or rationale is a
cause of threat – real or apprehended, to its security or the security
of its personnel or the security of the state, the rule can be
attracted. It is difficult to visualize the various situations in which
exposure of R&AW personnel might lead to a security threat.
For instance,
identity of someone, who is known to head a senior
position, per se, may not pose a threat to the security or to R&AW.
However, the disclosure of identity through any incident, of its
officers who are involved in sensitive functions or operations, in
any manner whatsoever, can lead to compromise of the security
of R&AW or the state. One of the ways this can happen is that if
the truth of such an individual is known, he or she can be open to
scrutiny by forces hostile and on occasions even subjected to threats
which might lead to disclosures- voluntary or otherwise- with
regard to the secrets of the organization which can be a threat to
the security of the country. Therefore, the use of the expressions
“security” and “exposure”, are not vague or arbitrary but, having
regard to the context and the underlying objectives of the R&AW,
mean security of the State or security of R&AW and exposure of
the identity of the concerned individual.”
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
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Determination of the challenge to constitutionality
26. Article 13 of the Constitution would get attracted if any law is
inconsistent with or in derogation of the fundamental rights. In that case,
such a law would be void to the extent of inconsistency. By virtue of
clause (3), the word “law”, used in Article 13, also encompasses a
statutory “rule” and thus the constitutionality of Rule 135, as being violative
of Article 14 read with Article 311, could legitimately be tested on the
anvil of standard tenets for determining the constitutionality of statutes.
27. Article 311 of the Constitution is a manifestation of the essential
principles of natural justice in matters of dismissal, removal or reduction
in rank of public servants and imposes a duty upon the Government to
ensure that any such decision against the public servant is preceded by
an inquiry, coupled with an opportunity of being heard and making a
representation against such decision. The abovementioned principles of
natural justice are also generally implicit under Article 14, as a denial of
the same to the public servant in question would taint the decision with
the vice of arbitrariness and deprive the public servant of equal protection
of the law. Article 311 reads thus:
“Article 311 - Dismissal, removal or reduction in rank of
persons employed in civil capacities under the Union or a
State.-(1) No person who is a member of a civil service of the
Union
or an all India service or a civil service of a State or holds
a civil post under the Union or a State shall be dismissed or removed
by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or
reduced in rank except after an inquiry in which he has been
informed of the charges against him and given a reasonable
opportunity of being heard in respect of those charges:
Provided that where it is proposed after such inquiry, to impose
upon him any such penalty, such penalty may be imposed on the
basis of the evidence adduced during such inquiry and it shall not
be necessary to give such person any opportunity of making
representation on the penalty proposed:
Provided further that this clause shall not apply-
(a) where a person is dismissed or removed or reduced in rank
on the ground of conduct which has led to his conviction on a
criminal charge; or
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(b) where the authority empowered to dismiss or remove a
person or to reduce him in rank is satisfied that for some reason,
to be recorded by that authority in writing, it is not reasonably
practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be,
is satisfied that in the interest of the security of the State it is
not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises
whether it is reasonably practicable to hold such inquiry as is
referred to in clause (2), the decision thereon of the authority
empowered to dismiss or remove such person or to reduce him in
rank shall be final.”
28. For further analysis, it is also apposite to advert to the text of
Rule 135 of the 1975 Rules, which reads as follows:
“135. Terminal benefits on compulsory retirement:
(1) Any officer of the Organization may be compulsorily retired
on any of the following grounds namely
(a) his being exposed as an intelligence officer or his becoming
unemployable in the Organization, for reasons of security, or
(b) disability or injuries received by him in the performance of
his duties.
(2) On the retirement of an officer under sub-rule (1), he may be
granted
(i) pension based on the emoluments which he would have
drawn had he remained in service until the normal age of
superannuation and earned promotion, other than promotion
by selection, due to him under these rules or the maximum
emoluments he would
have drawn in the grade in which he
was permanent or regularly appointed at the time of his
retirement had he continued to serve in that grade till the age
of superannuation, provided that in no case such pension shall
be less than twelve hundred and seventy-five rupees.
(ii) Family pension and death-cum-retirement gratuity admissible
under the rules for the time being in force.
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
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(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 to a penal
consequence. Thus, until and unless the action taken against a public
servant is in the nature of punishment, the need for conducting an inquiry
coupled with the grant of an opportunity of being heard, as envisaged
under Article 311, does not arise at all. Succinctly put, the action
contemplated against the public servant must assume the character of
‘punishment’ in order to attract the safeguards under Article 311. The
policy, object and scope of Article 311 has been clarified by this Court in
State of Bombay vs.
Saubhagchand M. Doshi5, wherein the Court
observed thus:
“10. Now, the policy underlying Article 311(2) is that when it is
proposed to take action against a servant by way of punishment
and that will entail forfeiture of benefits already earned by him,
he should be heard and given an opportunity to show cause against
the order. But that consideration can have no application where
the order is not one of punishment and results in no loss of benefits
already accrued, and in such a case, there is no reason why the
terms of employment and the rules of service should not be given
effect to. Thus, the real criterion for deciding whether an order
terminating the services of a servant is one of dismissal or removal
is to ascertain whether it involves any loss of benefits previously
earned. Applying this test, an order under Rule 165-A cannot be
5 AIR 1957 SC 892
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held to be one of dismissal or removal, as it does not entail
forfeiture of the proportionate pension due for past services.”
30. The question is: whether the action taken under Rule 135 of
the 1975 Rules is in the nature of penalty or a dismissal clothed as
compulsory retirement so as to attract the safeguards under Article 311
of the Constitution? The real test for this examination is to see whether
the order of compulsory retirement is occasioned by the concern of
unsuitability or as a punishment for misconduct. In the present case, the
appellant has been subjected to the order of compulsory retirement
simpliciter, and no action in the nature of dismissal, removal or reduction
in rank, as envisaged under Article 311, has been taken against the
appellant. In Saubhagchand M. Doshi (supra),the distinction between
an order of dismissal and that of compulsory retirement was expounded
in the following terms:
“9. …..Under the rules, an order of dismissal is a punishment laid
on a Government servant, when it is found that he has been guilty
of misconduct or inefficiency or the like, and it is penal in character,
because it involves loss of pension which under the rules would
have accrued in respect of the service already put in. An order of
removal also stands on the same footing as an order of dismissal,
and involves the same consequences, the only difference between
them being that while a servant who is dismissed is not eligible for
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. vs. Sri Shyam Lal Sharma6, also
laid down various propositions regarding the implication and effect of
the orders of compulsory retirement in the following terms:
“13. The following propositions can be extracted from these
decisions. First, in ascertaining whether the order of compulsory
retirement is one of punishment it has to be ascertained whether
in the order of compulsory retirement there was any element of
charge or stigma or imputation or any implication of misbehaviour
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
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or incapacity against the officer concerned. Secondly, the order
for compulsory retirement will be indicative of punishment or
penalty if the order will involve loss of benefits already earned.
Thirdly, an order for compulsory retirement on the completion of
25 years of service or an order of compulsory retirement made in
the public interest to dispense with further service will not amount
to an order for dismissal or removal as there is no element of
punishment. Fourthly, an order of compulsory retirement will not
be held to be an order in the nature of punishment or penalty on
the ground that there is possibility of loss of future prospects,
namely that the officer will not get his pay till he attains the age of
superannuation, or will not get an enhanced pension for not being
allowed to remain a few years in service and being compulsorily
retired.”
32. In the light of the settled legal position governing compulsory
retirement referred to above, let us embark upon the width of Rule 135
in order to address the challenge against it under Article 311 read with
Article 14. The fundamental source of compulsorily retiring an employee
is derived from the “doctrine of pleasure”, as accepted in India, which
springs from Article 310 of the Constitution. Rule 135 merely sets out
certain grounds to act as quintessence for taking 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 standalone provision forms a
small subset of the genus of Article 309 and deals strictly with cases of
“exposure” of “intelligence officers” who become unemployable in the
Organisation for reasons of security. 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
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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 oris rendered
unemployable for reasons of (individual, organisational or national)
security. The expressions “exposure”, “unemployability” and “security”
constitute the key ingredients of this Rule and are to be understood in a
chronological and natural order to discern their true essence and effect.
34. Further, it is pertinent to note that the grounds referred to in
Rule 135 nowhere contemplate it as a consequence of any fault or
wrongful action on the part of the officer and unlike penal actions, do not
stigmatise the outgoing officer or involve loss of benefits already earned
by him and there is no element of punishment. 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. We say
so because 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. The rule does not result into a deprivation
of the retired employee of any benefit whatsoever in lieu of such order
of compulsory retirement and thus, attracts no stigma or any civil
consequence to the retired employee for his/her future. The invocation
of this Rule, therefore, falls in sync with the second proposition in Shyam
Lal (supra) which looks down upon any loss of profits in a non-stigmatic
order of compulsory retirement. Succinctly put, a compulsory retirement
without anything more does not attract Article 311(2). We may usefully
refer to Dalip Singh vs. State of Punjab7 and Union of India and
Others vs. Dulal Dutt8 to bring home the stated position of law.
35. To concretize further, we now advert to the third limb of the
dictum in Shyam Lal (supra) that necessitates the absence of any element
of punishment in a just order of compulsory retirement. In order to
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
7 AIR 1960 SC 1305
8 (1993) 2 SCC 179
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undertake this examination, we deem it crucial to expound the true scheme
and effect of rules governing the employees of the Organisation by making
a brief reference to the decision in Satyavir Singh and Others vs.
Union of India and Others9, wherein this Court upheld the dismissal of
two employees of the Organisation on the grounds of misconduct,
indiscipline, intimidation and insubordination under Rule 19 of the Central
Civil Services (Classification, Control and Appeal) Rules, 1965 (for short
“CCS (CCA) Rules”),without holding any inquiry under Article 311 by
virtue of the proviso attached to the Article. Thus, it becomes amply
clear that, at par with other departments, in case of dismissal of an
employee of this Organisation also, the CCS (CCA) Rules, coupled with
the procedure under Article 311, could be and are expected to be ordinarily
resorted to. Therefore, Rule 135 of the 1975 Rules has been enacted as
a special provision dealing strictly with the 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 ground for invalidating an order of
compulsory retirement as it may be in a given case an inevitable
consequence of any such order. What needs to be delineated to attract
the vice of invalidity to a statutory order is illegality, at least of a minimum
standard to trigger the conscience of the Court. The exposition in Shyam
Lal (supra) and Saubhagchand M. Doshi (supra) would squarely apply.
37. To put it differently, the action under Rule 135 is not governed
by Article 311 nor it offends the same - as these two provisions operate
in separate spheres and thus an action taken under the impugned Rule
(Rule 135 of the 1975 Rules) need not be preceded by the safeguards
provided under Article 311 of the Constitution as such.  Since the action
9 (1985) 4 SCC 252
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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.
38. Assailing the constitutionality of this Rule, the appellant has
also contended that the non-application of this Rule to deputationists is
discriminatory and falls foul of Article 14. The impugned judgment rejected
this submission and observed thus:
“67. ….A deputationist’s services stand on a footing unlike that of
the official in a department, who is bound by its terms and
conditions. In case a deputationist – hypothetically- is “exposed”
or “exposes” himself and that constitutes a security threat, surely
the Central Government can resort to other mechanisms: including
compulsory retirement (provided the employee fulfils the conditions
under Rule 56 (j); it may also resort- if the employee is culpable
for the “incident” and the facts so warrant, invocation of Article
311 (2) (c) and summary dismissal or penalty of similar nature.
The possibility of other officers not being governed by the rule, or
that in other cases it was not invoked, therefore, cannot be a
ground to hold it arbitrary or invalid.”
39. A deputationist is an employee who has been assigned to
another department from his/her parent department. The law regarding
employees on deputation is well settled. As
regards the matter of
disciplinary control, this Court, in State of U.P. & Ors. vs. Ram Naresh
Lal10 has observed that a deputationist continues to be governed by the
rules of his/her parent department and is deemed to be under the
disciplinary control of his/her parent department unless absorbed
permanently in the transferee department. In Kunal Nanda vs. Union
of India& Anr.11, it was further observed that the basic principle
underlying deputation is that the person concerned can always and at
any time be repatriated back to his parent department. By sending back
the person to his parent department, any adverse effect on the
Organisation (R&AW) including of reasons of security would be averted.
Therefore, a deputationist stands on an altogether different footing than
a direct recruit of the Organisation/Department who is exposed as an
intelligence officer or his/her becoming unemployable in the Organisation
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
10  (1970) 3 SCC 173
11  (2000) 5 SCC 362
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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 sensusimilarly placed and thus the plea of
differential treatment meted out to them is unavailable. It would not
entail discrimination nor be violative of Article 14.  Accordingly, we must
negate the challenge to constitutional validity of Rule 135.
40. We also deem it necessary, at this juncture, to note that the
mere fact of non-prescription of inquiry under Rule 135 of the 1975
Rules, before making the order of compulsory retirement, does not go
against the constitutionality of the Rule. Additionally, the rule does not
prohibit any inquiry and is in general line with the orders of compulsory
retirement wherein the right of outgoing employee to participate in the
process of formation of such decision is not envisaged in law, as the
underlying basis of such action is the larger public interest and security
of the Organisation; and not any culpable conduct of the employee.
Moreover, Rule 135 incorporates a language that is 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.
41. Reverting to the challenge in reference to Article 309, suffice
it to observe that the 1975 Rules fall under the “conditions of service”
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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 sought to be taken.
Whereas, Article 309 covers the broad spectrum of conditions of service
and holds a wider ground as compared to Article 311. That would also
include conditions of service beyond mere dismissal, removal or reduction
in rank. It holds merit to state that this wide ground contemplated under
Article 309 also takes in its sweep the conditions regarding termination
of service including compulsory retirement. In Pradyat Kumar Bose
vs. The Hon’ble The Chief Justice of Calcutta High Court12, this
Court touched upon the ambit and scope of Article 309 of the Constitution
and expounded that
the expression “conditions of service” takes within
its sweep the cases of dismissal or removal from service.
43. We further note that generally it is correct to say that the rules
governing conditions of service, framed under Article 309, are subject to
other provisions of the Constitution, including Article 311. The opening
words of Article 309 - “Subject to the provisions of this Constitution” -
point towards the same analogy. However, this subjection clause shall
not operate upon the rules governing compulsory retirement. For, the
legal concept of compulsory retirement, as discussed above, 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. It has also been observed in State of U.P.&
Ors. vs. Babu Ram Upadhya13 that the validity of a rule shall be hit by
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
12  AIR 1956 SC 285
13  AIR 1961 SC 751
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Article 311 only if it seeks to affect the protection offered by Article 311,
and not otherwise as in the present case.
44. Let us now address the next ground of challenge against Rule
135 of the 1975 Rules, that is - the expressions “security” and “exposure”
used in Rule 135 are of wide import and their usage attracts the vice of
vagueness and arbitrariness to the Rule. The appellant has relied upon
the prior-quoted extract of Kartar Singh (supra) to set up this challenge
on the ground of vagueness.
45. It is a settled principle of interpretation of statutes that the
words used in a statute are to be understood in the light of that particular
statute and not in isolation thereto. The expression used in Rule 135 is
“security”, as distinguished from the more commonly used expression
“security of the State” used in Article 311. This deliberate widening of
the expression by the enacting body points towards the inclusive intent
behind the expression. The word “security” emanates from the word
“secure” which, as per the Law Lexicon, means to put something beyond
hazard. It is understood that the exposure of an intelligence officer could
be hazardous not only for the Organisation but also for the officer
concerned and the expression “security”, therefore, is to be understood
as securing the Organisational and individual interests beyond hazard
and squarely covers the security of the Organisation as well as the
security of
the State. Similarly, the expression “exposure” refers to the
revelation of the identity of an intelligence officer as such to the public,
in a manner that renders such officer unemployable for the Organisation
for reasons of security.
46. It is noteworthy that in Indian constitutional jurisprudence, a
duly enacted law cannot be struck down on the mere ground of vagueness
unless such vagueness transcends in the realm of arbitrariness. We may
usefully refer to the exposition of this court in Municipal Committee,
Amritsar & Ors. vs. State of Punjab &Ors.14 However, challenge to
Rule 135 on the ground of vagueness, could only be sustained if the Rule
does not provide a person of ordinary intelligence with a reasonable
opportunity to know the scope of the sphere in which the Rule would
operate. In the present case, the test of reasonable man is to be applied
from the point of view of a member working in the Organisation as an
intelligence officer. The members working in the Organisation, more
14 (1969) 1 SCC 475
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particularly a Class-I Intelligence Officer, ought to know the scope,
specific context and import of the expressions – “exposed as an
intelligence officer”, “becoming unemployable in the Organisation” or
“reason of security”, as the case may be. A member working in the
Organisation would certainly be aware of the transnational repercussions
emerging from the exposure of the identity of an intelligence officer.
Thus, there is no inherent vagueness or arbitrariness in the usage of
above expressions so as to attach the vice of unconstitutionality to the
Rule. However, whether or not an executive act of exercising the power
under the Rule reeks of arbitrariness is a matter of separate examination,
to be conducted on a case to case basis and does not call for a general
declaration by the Court. To conclude, the challenge on this ground is
rejected and the impugned judgment is, therefore, held to have answered
this challenge correctly. However, despite upholding the order of the
High Court as regards the constitutionality of Rule 135, we are of the
view that the meaning placed by the High Court on the expression
“security”, in the impugned judgment, is of a wide import. As regards
what would constitute a threat to security, so as to invoke Rule 135, the
impugned judgment, in para 65, notes thus:
“…..  Therefore, if in a given case, any member of R&AW
indulges in behaviour that is likely to prejudice its overall morale
or lead to dissatisfaction, it may well
constitute a threat to its
security.”
47. We hold that this observation does not guide us towards the
true scope of the usage of the expression “reasons of security” or what
would constitute a security threat and opens the contours of Rule 135 to
uncontemplated areas. Thus, this observation shall stand effaced in light
of the interpretation of Rule 135 by us hitherto and shall not be operative
for any precedentiary purpose, or otherwise.
Legality of the order of compulsory retirement
48. Having answered the challenge to the constitutional validity
of Rule 135 in negative and settling the question of existence of power
to retire compulsorily, we embark upon the determination of the next
issue, whether the power of compulsory retirement exercised by the
respondents in the fact situation of the present case is just and legal.
According to the appellant, the respondents have acted in a mala fide
manner and the invocation of Rule 135 is an act of victimisation of the
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
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appellant due to her refusal to accede to the illegitimate demands of her
superiors. The appellant has also contended that the power to retire
compulsorily could be exercised in accordance with the FR 56(j) only.
49. The contentions of the appellant find an answer in the impugned
judgment in the following terms: -
“78. Therefore, as long as a public employee’s services are
dispensed with prematurely for reasons which are germane to
the concerned body’s service rules and terms and conditions, and
are not mala fide or do not suffer from any grave procedural
impropriety, the courts would not interfere with the decision.
Considering the circumstances of this case from this perspective,
it is evident that at the higher levels of the UOI i.e. at the stage of
Cabinet Secretary, the PMO and the Ministry of Law and Justice,
various options were explored. It is not as if the option to invoke
Rule 135 was the only choice pursued at the highest echelons of
the government. The notings disclose that the Prime Minister had
desired to consider the impact of the decision from all perspectives.
Evidently, the concern was not only with respect to the impact
upon the employee/officer i.e. the applicant but also upon the
service as a whole. Significantly, the Prime Minister also desired
– after the adverse remarks were noticed, in the Shashi Prabha
Committee’s recommendations, that prompt triggering of complaint
mechanisms should be
ensured at all government levels. One of
the notings of the Cabinet Secretary suggested the option of
pursuing disciplinary proceedings under Rule 9 of the Central Civil
Services (Pension) Rules, 1972 against the retired Secretary level
R&AW Head, Mr. Tripathi. Given all these facts and materials
on record, it cannot be held that the government acted in a mala
fide manner, in choosing what it considered to be inevitable option
i.e. invoking Rule 135.”
On mala fide exercise of power
50. Reliance has also been placed upon Baikuntha Nath Das
&Anr. vs. Chief District Medical Officer, Baripada & Anr.15 in order
to support the claim of mala fides by asserting that a decision of
compulsory retirement has to be made under a detailed formal procedure
and in light of the past performance records.
15  1992 (2) SCC 299
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51. Indubitably, in a society governed by Rule of Law, the presence
of mala fides or arbitrariness in the system of governance strikes at the
foundational values of the social order.  Every public functionary, including
the three organs of government, are bound to discharge their functions
in a bona fide, unvitiated and reasonable manner. A mala fide exercise
of power is essentially a fraud on the power. The law regarding mala
fide exercise of power, running across a catena of cases, is well settled.
For an exercise of power to steer away from the taint of mala fides,
such power ought to be exercised within the contours of the statute/law
bestowing such power. Any exercise which exceeds the limits laid down
by law; or is driven by factors extraneous or irrelevant to such exercise;
or guided by malicious intent or personal animosity; or reeks of
arbitrariness must fall foul in the eyes of law. This legal position is
consistently expounded by this Court in S. Partap Singh vs. State of
Punjab16, Express Newspapers Pvt. Ltd. & Ors. vs. Union of India
& Ors.17, J.D. Srivastava vs. State of M.P. and Others18 and Jaichand
Lal Sethia vs. State of West Bengal19. The fact situation in the present
case does not attract any of the above stated factors.
52. Notably, the appellant has not impleaded the concerned persons
against whom allegations of mala fides are made, as party respondent.
Hence, those allegations cannot be taken forward. We may usefully
advert to the
exposition in Purushottam Kumar Jha vs. State of
Jharkhand & Ors.20 which records the 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.
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
16  AIR 1964 SC 72
17  (1986) 1 SCC 133
18  (1984) 2 SCC 8
19  AIR 1967 SC 483
20   (2006) 9 SCC 458
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On non-application of mind
53. In order to analyse the challenge of non-application of mind,
we deem it worthwhile to trace the timeline of relevant events to
understand the chain of proceedings.
DATE 
EVENT 
01.02.2007- 
31.01.2009 
Shri Ashok Chaturvedi became the Secretary (R), Cabinet 
Secretariat, Government of India and held this post till 
31.01.2009. 
03.08.2007 
Appellant posted as Director at the Headquarters, New 
Delhi. 
07.08.2007 
Appellant filed complaint of sexual harassment. 
26.10.2007 
Appellant filed a written complaint to PMO against Shri 
Ashok Chaturvedi, Secretary (R). 
12.11.2007 
Appellant joined as Director, Training Institute, Gurgaon. 
08.08.2008
Number of complaints received by Organisation regarding 
appellant’s 
uncalled 
for 
behaviour, 
unauthorized 
communications, objectionable messages, contact with 
media etc. and ‘Preliminary Inquiry’ was ordered by 
Secretary (R). The inquiry was conducted by Shri A.K Arni 
and appellant refused to participate in the inquiry upon 
intimation.   
19.08.2008* 
Information of Preliminary Inquiry conveyed to appellant, 
thereby leading to the incident at PMO which led to wide 
coverage in national and international media. 
10.09.2008- 
11.09.2008 
Preliminary Inquiry report concluded that most of the 
charges against the appellant appear to be substantiated and 
report was submitted J.S. (SA) on 10.09.2008, who further 
submitted it to Secretary
(R) on 11.09.2008. 
22.09.2008** 
Proposal for compulsory retirement of appellant made by 
Secretary (R).
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NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
04.04.2009 
Appellant wrote letter to Shri Ajit Seth, Secretary (PG & 
Coord) regarding her apprehension to be retired without 
inquiry under Article 311. 
17.04.2009* 
Incident of shouting, removal of clothes etc. at the office of 
Jt. Secretary (Trg.). 
18.04.2009** 
Proposal for invoking Rule 135 against appellant by Shri 
K.S. Achar, Director in PMO. 
05.05.2009** 
Meeting to check the possibility of any other action against 
appellant, presided over by NSA and Principal Secretary to 
Prime Minister. Meeting reached the conclusion that Rule 
135 was the most appropriate option. 
11.05.2009** 
Request by Secretary (R) to Cabinet Secretary for 
expeditious decision on the proposal of compulsory 
retirement. 
13.05.2009** 
Secret Note sent to PMO by Cabinet Secretariat suggesting 
compulsory retirement under Rule 135. 
27.07.2009* 
Incident of tearing off clothes by appellant in the Supreme 
Court premises. 
03.10.2009 
& 
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.
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16.12.2009 
PMO communication conveying approval of the Prime 
Minister to the recommendation of compulsory retirement. 
18.12.2009 
Order of compulsory retirement issued by Cabinet 
Secretariat in the name of the President of India. 
* - Incidents of Exposure ** - Procedural steps
54. Given the factual matrix of the present case, we deem it proper
to carve out some important events from the aforementioned chain.  The
aforementioned sequence of events reveals the chain of internal
communications in the aftermath of which the order dated 18.12.2009
was eventually passed.  The secret note sent by Secretary (R) to P.M.O.,
dated 11.5.2009, opinion of the then Solicitor General of India by letter
dated 21.7.2009, opinion of the Department of Legal Affairs, Union
Ministry of Law and Justice and the PMO note in which the invocation
of Rule 135 was determined as the only viable option, constitute together
a complete chain of inquiry revealing due application of mind by the
respondents into the question of compulsory retirement.  It is settled law
that the scope of judicial review is very limited in cases of compulsory
retirement and is permissible on the limited grounds such as non-
application of mind or mala fides.  Regard can be had to Pyare Mohan
Lal vs. State of Jharkhand and Others21. The above-quoted set of
events are so eloquent that it leaves us with no other conclusion but to
hold that the action of compulsory
retirement was the just option. Assuming
that some other option was also possible, it would not follow that the
decision of the competent authority to compulsorily retire the appellant
was driven by extraneous, malicious, perverse, unreasonable or arbitrary
considerations. The pre-requisite of due application of mind seems to be
fulfilled as the decision has been reached in the aftermath of a series of
discussions, exchanges and consultations between the Organisation and
the PMO over the course of 15 months from 22.9.2008 to 18.12.2009.
55. Moreover, the preliminary inquiry conducted against the
appellant, commencing 8.8.2008, forms a crucial building block in the
chain of events and calls for our attention. This inquiry was ordered in
the aftermath of a series of complaints made against the appellant by
the fellow officers. Such complaints pertained to misbehaviour,
21  (2010) 10 SCC 693
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unauthorised communication, vulgar SMSes, media contact etc. A notice
of this inquiry was communicated to the appellant on 19.8.2008 (the day
of the PMO incident), seeking her participation in the inquiry. However,
the appellant refused to participate, thereby leading to an 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 be lies 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 tittle 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 higher pedestals
of the dispensation. However, constitutional offices, like that of the PMO,
are entrusted with a constitutional trust by the people of India through
the holy Constitution. Such constitutional trust absorbs within itself an
inherent expectation that actions emerging out of such functionaries are
driven by bona fide considerations of public interest and constitutional
propriety. Constitutional trust, as a concept of constitutional application,
has been duly accepted by this Court in a string of judgments. In Manoj
Narula v. Union of India22, a five-Judge bench of this Court observed
thus: -
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
22  (2014) 9 SCC 1
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“92. Centuries back what Edmund Burke had said needs to be
recapitulated:
“All persons possessing a position of power ought to be strongly
and awfully impressed with an idea that they act in trust and
are to account for their conduct in that trust to the one great
Master, Author and Founder of Society.”
93. This Court, in Delhi Laws Act, 1912, In re, AIR 1951 SC
332, opined that the doctrine of constitutional trust is applicable to
our Constitution since it lays the foundation of representative
democracy. The Court further ruled that accordingly, the
Legislature cannot be permitted to abdicate its primary duty, viz.
to determine what the law shall be. Though it was stated in the
context of exercise of legislative power, yet the same has
signification in the present context, for in a representative
democracy, the doctrine of constitutional trust has to be
envisaged in every high constitutional functionary.”
(emphasis supplied)
The constitutional faith invested in such functionaries has also
been reverberated in Govt. Of NCT of Delhi v. Union of India23 and
Kihota Hollohon v. Zachilhu and Others24 wherein this Court, in
reference to the constitutional trust imposed in the office of Speaker/
Chairmen of the Houses of Parliament while exercising powers under
the Tenth schedule, observed thus:
“J] That contention that the investiture of adjudicatory functions
in the Speakers/Chairmen would by itself vitiate the provision
on
the ground of likelihood of political bias is unsound and is rejected.
The Speakers/Chairmen hold a pivotal position in the scheme of
parliamentary democracy and are guardians of the rights and
privileges of the House. They are expected to and do take far
reaching decisions in the functioning of parliamentary democracy.
Vestiture of power to adjudicate questions under the Tenth
Schedule in such a constitutional functionary should not be
considered exceptionable.”
23  2019 (3) SCALE 107
24  (1992) 1 SCC 309
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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 in
writing….”
59. It is clear that FR 56(j) incorporates twin elements- first, the
absolute right of the Government to retire an employee and second, the
specific circumstance in which such right could be exercised i.e., the
necessity of public interest. The rule also provides for a prior notice of at
least three months to the outgoing employee. Rule 135 of the 1975 Rules,
on the other hand, deviates from this dispensation. It is a special provision
dealing with clan of intelligence officers in the Organisation in question.
The fundamental distinction between FR 56(j) and Rule 135 lies in the
usage of expressions “public interest” and “security” respectively. The
concern of security finds special place in an exclusive provision that
gets triggered for reasons of security. On the other hand, FR 56(j) is in
reference to public interest generally. Framed in 1975, during the existence
of FR 56(j), Rule 135 was carved out as a special provision. It is pertinent
to note that Rule 135 recognises the presence of a vested and inherent
right in the government to compulsorily retire an employee and explicitly
specifies certain exclusive grounds for taking such action. Therefore,
Rule 135 presents a deliberate deviation from FR 56(j) and covers special
circumstances of ‘exposure’ or ‘unemployability for reasons of security’
as pre-requisites for its invocation. Indubitably, Rule 135 is not exhaustive
of all circumstances and matters of compulsory retirement of intelligence
officer of the Organisation. For, it holds no operatibility beyond the
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
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specified situations therein. All other situations (not covered by Rule
135) warranting compulsory retirement would, therefore, continue to be
governed by FR 56(j) in reference to public interest. Thus, Rule 135 is a
special provision and operates independent of the grounds and procedure
laid down in FR 56(j). In other words, once the ingredients of Rule 135
are satisfied, then, within the meaning of Article 309, Rule 135 will get
activated as a ‘condition of service’ of the intelligence officer of the
Organisation and FR 56(j), being a general provision, could be invoked
on the grounds transcending beyond the stipulation in Rule 135 in public
interest. Thus, the general provision such as FR 56(j) must give way to
the special provision (Rule 135) as predicated in S.C. Jain vs. State of
Haryana and Another25.
60. Taking cue from the procedural standards prescribed in FR
56(j), the appellant would urge that 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 vs. New
Suwarna Transport Co.
Limited26, succinctly observed against the absoluteness of the rules of
natural justice and stated that such rules vary with varying statutory
rules governing the facts of the case. Speaking on the exclusion of such
principles in the light of specific statutory rules, this Court, in Union of
India vs. Col. J.N. Sinha and Another27, quoted A.K. Kraipak &
Ors. vs. Union of India& Ors.28 with approval, and observed thus: -
“8. ...It is true that if a statutory provision can be read consistently
with the principles of natural justice, the courts should do so because
it must be presumed that the legislatures and the statutory
authorities intend to act in accordance with the principles of natural
justice. But if on the other hand a statutory provision either
specifically or by necessary implication excludes the application
of any or all the principles of natural justice then the court cannot
25  (1985) 4 SCC 645
26   AIR 1957 SC 232
27  (1970) 2 SCC 458
28   (1969) 2 SCC262
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ignore the mandate of the legislature or the statutory authority
and read into the concerned provision the principles of natural
justice. Whether the exercise of a power conferred should be
made in accordance with any of the principles of natural justice
or not depends upon the express words of the provision conferring
the power, the nature of the power conferred, the purpose for
which it is conferred and the effect of the exercise of that power.”
A priori, a mechanical extension of the principles of natural justice
would be against the proprieties of justice.  This has been restated in the
post Maneka Gandhi vs. Union of India& Anr.29 era in a series of
judgments. This Court, in Managing Director, ECIL, Hyderabad and
Others v. B. Karunakar and Others30, summarised the post Maneka
(supra) position thus: -
“20. The origins of the law can also be traced to the principles of
natural justice, as developed in the following cases: In A. K
Kraipak v. Union of India, (1969) 2 SCC 262, it was held that
the rules of natural justice operate in areas not covered by any
law. They do not supplant the law of the land but supplement it.
They are not embodied rules and their aim is to secure justice or
to prevent miscarriage of justice. If that is their purpose, there is
no reason why they should not be made applicable to administrative
proceedings also especially when it is not easy to draw the line
that demarcates administrative enquiries from quasi- judicial ones.
An
unjust decision in an administrative inquiry may have a more
far reaching effect than a decision in a quasi-judicial inquiry. It
was further observed that the concept of natural justice has
undergone a great deal of change in recent years. What particular
rule of natural justice should apply to a given case must depend to
a great extent on the facts and circumstances of that case, the
framework of the law under which the inquiry is held and the
Constitution of the tribunal or the body of persons appointed for
that purpose. Whenever a complaint is made before a Court that
some principle of natural justice has been contravened, the Court
has to decide whether the observance of that rule was necessary
for a just decision on the facts of that case. The rule that inquiry
must be held in good faith and without bias and not arbitrarily or
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
29  (1978) 1 SCC 248
30   (1993) 4 SCC 727
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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 circumstances
satisfies the Court that the party visited with adverse order
has not suffered from denial of reasonable opportunity, the
Court will decline to be punctilious or fanatical as if the
rules of natural justice were sacred scriptures.
22. In Institute of Chartered Accountants of India v. L.K. Ratna,
(1986) 4 SCC 537, Charan Lal Sahu v. Union of India, (1990)
1 SCC 613(Bhopal Gas Leak Disaster Case) and C.B. Gautam
v. Union of India, (1993) 1 SCC 78, the doctrine that the
principles of natural justice must be applied in the unoccupied
interstices of the statute unless
there is a clear mandate to the
contrary, is reiterated.”
(emphasis supplied)
61. Rule 135 of the 1975 Rules operates in situations of exposure
of an intelligence officer and the revelation of identity of such intelligence
officer attracts immense adverse exposure to the Organisation and could
legitimately result into an embarrassing security breach with long lasting
impacts on the integrity of the Organisation in question, if not the country.
The circumstances in which Rule 135 operates incorporate a sense of
urgency. Indisputably, a continued presence of an exposed officer in the
Organisation in the name of participation in inquiry could seriously
jeopardize the institutional and national security interests. We deem it
essential to highlight that such a consequence could ensue even without
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the knowledge or connivance of the exposed officer. Further, no stigma
or fault is imputed upon such officer in any manner by the mere factum
of such exposure. Therefore, Rule 135 clearly excludes the observance
of these principles by necessary implication. In other words, rigid
adherence to the principles of natural justice could defeat the very object
of carving out this special provision. We may usefully refer to the
exposition in Ex-Armymen’s Protection Services Private Limited vs.
Union of India and Others31, wherein it is observed thus:
“16. What is in the interest of national security is not a question of
law. It is a matter of policy. It is not for the court to decide whether
something is in the interest of State or not. It should be left to the
Executive. To quote Lord Hoffman in Secy. of State for Home
Deptt. vs. Rehman, (2003) 1 AC 153:
“...in the matter of national security is not a question of law. It
is a matter of judgment and policy. Under the Constitution of
the United Kingdom and most other countries, decisions as to
whether something is or is not in the interest of national security
are not a matter for judicial decision. They are entrusted to the
executive.”
17. Thus, in a situation of national security, a party cannot
insist for the strict observance of the principles of natural
justice. In such cases it is the duty of the Court to read into
and provide for statutory exclusion, if not expressly provided
in the rules governing the
field. Depending on the facts of the
particular case, it will however be open to the court to satisfy
itself whether there were justifiable facts, and in that regard, the
court is entitled to call for the files and see whether it is a case
where the interest of national security is involved. Once the State
is of the stand that the issue involves national security, the court
shall not disclose the reasons to the affected party.”
(emphasis supplied)
62. Be it noted that the order of compulsory retirement in the
present case was preceded by a chain of preliminary inquiry, commencing
from 8.8.2008, in the highest echelons of the government (as indicated
above) and such preliminary inquiry, in our view, is advisable. For, it is
only after a preliminary inquiry that the competent authority can satisfy
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
31  (2014) 5 SCC 409
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itself about the existence of the prescribed ground in a particular case.
However, we reiterate that the participation of the concerned officer in
such inquiry is neither mandated by the jurisprudential essence of
compulsory retirement or the rigid observance of the principles of natural
justice. Such principles cannot be offered a free ride at the peril of larger
public interests bordering on reasons of security of the Organisation or
the State. Despite being harsh at times, unambiguous provisions of the
Rule under consideration offer no space for infusing any element of
judicial creativity against the legislative intent [see State of Rajasthan
vs. Leela Jain & Ors.32 and Sri Nasiruddin vs. State Transport
Appellate Tribunal33]. We hold that Rule 135 of the 1975 Rules, excludes
any requirement of prior noticeor abiding by principles of natural justice.
Re: Pension claim
63. The appellant had assailed the retirement order before the
High Court in reference to the Pension Rules, on diverse counts.  However,
by this appeal, the appellant has raised the following question only:
“(b) Whether the President of India can delegate his power, under
Rule 9(1) of the CCS (Pension) Rules, 1972, to modify pension of
an employee to any other authority? It is evident that the President
of India cannot delegate this power. It means that where an
employee’s pension is to be modified, the decision is to be taken
by the President on
case to case basis. There cannot possibly be
a generic rule like Rule 135 which can govern pension of a certain
set of employees overlooking the CCS (Pension) Rules, 1972.
Existence of Rule 135 is, in fact, a case where a few officers of
R&AW got together to bestow on their own selves the power to
remove R&AW officers at their whims and fancies.”
64. This question emanates from the order dated 10.5.2010,
whereby the respondents granted provisional pension to the appellant
instead of full pension. The appellant contends that this order amounted
to withholding of the appellant’s final pension and part of her provisional
pension, without adopting the route prescribed by Rule 9 of the Pension
Rules. It is further submitted that clauses (2)-(4) of Rule 135 deviate
from the pension provisions of the retired officer and are in derogation
to Rule 9(1) of the Pension Rules whereunder only the President of
32   AIR 1965 SC 1296
33   AIR 1976 SC 331
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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 pensioner is found
guilty of grave misconduct or negligence during the period of
service, including service rendered upon re-employment after
retirement :
......
......”
67. The appellant may be right in contending that the power to
withhold or withdraw pension of an officer is circumscribed by Rule 9.
Indeed, it is settled law that the exercise of power of modification of
pension under
Rule 9 is subject to the finding of misconduct or negligence
against the employee, reached after conducting departmental or judicial
proceedings. This Court in D.V. Kapoor vs. Union of India and
Others34, had observed thus: -
“8. It is seen that the President has reserved to himself the right
to withhold pension in whole or in part therefore whether
permanently or for a specified period or he can recover from
pension of the whole or part of any pecuniary loss caused by the
Government employee to the Government subject to the minimum.
The condition precedent is that in any departmental enquiry or the
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
34  (1990) 4 SCC 314
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judicial proceedings, the pensioner is found guilty of grave
misconduct or negligence during the period of his service of the
original or on re-employment. The condition precedent thereto is
that there should be a finding that the delinquent is guilty of grave
misconduct or negligence in the discharge of public duty in office,
as defined in Rule 8(5), explanation (b) which is an inclusive
definition, i.e. the scope is wide of mark dependent on the facts
and circumstances in a given case. Myriad situation may arise
depending on the ingenuity with which misconduct or irregularity
is committed. It is not necessary to further probe into the scope
and meaning of the words ‘grave misconduct or negligence’ and
under what circumstances the findings in this regard are held
proved. It is suffice that charges in this case are that the appellant
was guilty of wilful misconduct in not reporting to duty after his
transfer from Indian High Commission at London to the Office of
External Affairs Ministry, Government of India, New Delhi. The
Inquiry Officer found that though the appellant derelicted his duty
to report to duty, it was not wilful for the reason that he could not
move due to his wife’s illness and he recommended to
sympathetically consider the case of the appellant and the President
accepted this finding, but decided to withhold gratuity and payment
of pension in consultation with the Union Public Service
Commission.
9.
As seen the exercise of the power by the President is hedged
with a condition precedent that a finding should be recorded either
in departmental enquiry or judicial proceedings that the pensioner
committed grave misconduct or negligence in the discharge of his
duty while in office, subject of the charge. In the absence of such
a finding the President is without authority of law to impose penalty
of withholding pension as a measure of punishment either in whole
or in part permanently or for a specified period, or to order
recovery of the pecuniary loss in whole or in part from the pension
of the employee, subject to minimum of Rs.60.”
68. The raison d’etre of Rule 9 is to provide for an additional
safeguard on the pensionary right of an employee by vesting the power
of reduction/modification in the President of India. However, it is a
general rule and not an overarching provision of pervasive application.
Framed under Article 309 of the Constitution, this rule operates in the
area specified for it and cannot override other special rules such as Rule
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135. Succinctly put, this rule (Rule 9)does not and cannot control Rule
135 of the 1975 Rules, which derives its own independent authority from
Article 309. As both the rules emanate from Article 309, the question of
illegality of one rule cannot be premised on the argument that it acts in
deviation from another rule albeit concerning the same subject of pension.
As aforementioned, in cases where the action taken is of compulsory
retirement, in exercise of power under Rule 135, there is no contemplation
of any finding of misconduct or negligence against the employee as such.
It is not preceded by departmental or judicial proceedings. Rule 135
operates as a self-contained code covering certain aspects of termination
and post-termination benefits in an exclusive manner as a special
dispensation and is not controlled by any other rule much less general
provisions. There is no overlapping between Rule 135 and Rule 9.
69. As regards the grant of pension to appellant, the appellant
shall be entitled to all the benefits under clauses (2)-(4) of Rule 135 in
their true letter and spirit. The impugned judgment has directed the
respondents to secure various benefits to the appellant, including the
benefit of promotion and fixation of date of pension as per the date of
notional superannuation in 2023. That direction has not been challenged
before us by the respondents. The pension of an employee retired under
Rule 135 is to be determined in accordance with the date
of notional
superannuation and not in accordance with the date of actual retirement.
This, in our view, reflects the beneficial, balancing and protective outlook
of the Rule as it seeks to deal with the competing considerations of
public interest including security (of the Organisation or the State) and
individual interest of the outgoing employee. Thus, we direct the
respondents to abide by the stipulations contained in clauses (2)-(4), and
in particular the benefit extended to the appellant by the High Court
referred to above, in their true letter and spirit and in right earnest, if
already not done.
70. Our attention has been drawn to the order of postponement of
the date of retirement of the appellant from 18.12.2009 to 31.12.2012,
by the High Court vide impugned judgment. The order has been passed
presumably in the interest of justice, as is evident from paragraph 79 of
the impugned judgment wherein the High Court records thus:
“79. …At the same time, the peculiarities and circumstances of
this case, warrant a measure of relief to the applicant, Ms. Bhatia
as well….”
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
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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 should be given
effect. The usage of words “immediate effect” makes it amply clear
that the order of compulsory retirement was meant to take effect
immediately and the date of such order could not have been postponed
by a Court of law in the garb of exercising power of judicial review. To
do so without any legal basis, could lead to abhorrent consequences and
result into a
spiral of issues, including putting to jeopardy the principle of
conclusivity of the decision. Even if we assume that the Court intended
it as an equitable measure, we are of the view that the same could have
been achieved without postponing the date of retirement. Sub-rule (2) of
Rule 135 of the 1975 Rules categorically provides for the calculation of
pension as per the date of notional superannuation as well as for the
earned promotions. However, despite our disapproval for this approach,
in the peculiar facts of this case, we stop short of modifying the High
Court’s order as regards postponement of date of retirement as the same
has not been assailed by the respondents and instead has been complied
with sans any demur.
72. We have been informed by the respondents that in lieu of the
order of postponement of retirement, consequential benefits have already
been transferred to the appellant. We, therefore, make it clear that our
observations as regards the order of postponement shall not affect the
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benefits already transferred to the appellant in terms of the High Court’s
order, and no recovery be effected from the appellant of the excess
payment in that regard. Being mindful of the peculiar circumstances of
the case, we are not inclined to order any restitution of the same.
73. The appellant has placed reliance on decisions relating to the
applicability of pension rules 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 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 Others vs. Union of India35, which reads thus:
“20. The antequated notion of pension being a bounty a gratuitous
payment depending upon the sweet will or grace of the employer
not claimable as a right and, therefore, no right to pension can be
enforced through Court has been swept under the carpet by the
decision of the Constitution Bench in Deoki Nandan Prasad vs.
State of Bihar, (1971) 2 SCC 330 wherein this Court
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
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authoritatively ruled that pension is a right and the payment of it
does not depend upon the discretion of the Government but is
governed by the rules and a Government servant coming within
those rules is entitled to claim pension. It was further held that the
grant of pension does not depend upon anyone’s discretion. It is
only for the purpose of quantifying the amount having regard to
service and other allied matters that it may be necessary for the
authority to pass an order to that effect but the right to receive
pension flows to the officer not because of any such order but by
virtue of the rules. This view was reaffirmed in State of Punjab
vs. Iqbal Singh, (1976) 2 SCC 1.”
76. Indeed, clauses (2)and (3) of Rule 135 of the 1975 Rules,
posit that the grant of pension to a compulsorily retired employee under
this rule is preceded by expression “may”. That gives an impression that
the grant of pension to the outgoing employee is subject to the discretion
of the competent authority. The setting in which expression “may”has
been placed in this provision, it must be read as “shall”. Lest, it could be
argued that a compulsorily retired officer under Rule 135 can be denuded
of pensionary benefits. That would result in not only loss of job for the
employee concerned due to fortuitous situation referred to in Rule 135,
but also deprive him/her of the source of his livelihood (even though the
action against him/her is not
to inflict civil consequences). In fact, Rule
135 is cast in the form of a beneficial, balancing and protective provision
for the nature of action against the employee concerned. We find it
highly incongruous to permit the rule to operate in a manner so as to
leave the scope for denial of pensionary benefits to an officer who has
been retired without his/her volition for the sake of meeting organisational
exigencies. Notably, the rule, being a special provision, does not prescribe
for any minimum age or length of service of the officer concerned and
the necessities of the situation may demand the invocation of this rule
even within short period of service. In such circumstances, subjugating
the statutory right of pension of such officer, who is being ousted without
his/her fault because of public interest in reference to the integrity of the
Organisation, would be preposterous and in fact, violative of fundamental
rights under the Constitution.
77. We are mindful of the fact that Intelligence Organisations
(Restriction of Rights) Act, 1985, enacted by the Parliament under Article
33, provides for restriction of certain rights conferred by Part III in their
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application to intelligence officers. However, the same is confined to
restrictions respecting right to form associations, freedom of speech etc.
and does not stretch its sweep to curb the right to livelihood of an officer,
that too when the officer is being compulsorily retired under Rule 135.
This could not have been the object and intent of the stated legislation.
Even in the Pension Rules, Rule 40 is the only provision which subjects
the pension of a compulsorily retired officer to a discretionary “may”
provision. However, this rule comes into play when the said retirement
is ordered as a penalty and thus, it stands on a different footing than
Rule 135 of the 1975 Rules which is not linked to the conduct of the
officer nor does it entail any consequence, either civil or penal.
78. By now it is well established that it is the duty of the Court to
give effect to the object sought to be achieved by the legislature through
the enacted provision and to prevent its defeat. In order to fulfil this duty,
the settled canons of interpretation enable this Court to scrutinise the
true import of the usage of “may” and “shall” provisions, as reiterated
by this Court in D.K. Basu vs. State of West Bengal &Ors.36
“13. A long line of decisions of this Court starting with Sardar
Govind Rao vs. State of Madhya Pradesh, AIR 1965 SC 1222
have followed the above line of reasoning and authoritatively held
that the use of the words ‘may’ or ‘shall’ by themselves does not
necessarily suggest that one is directory and the other mandatory,
but, the context in which the said expressions have been used as
also the scheme and the purpose underlying the legislation will
determine whether the legislative intent really was to simply confer
the power or such conferment was accompanied by the duty to
exercise the same.
14. In The Official Liquidator vs. Dharti Dhan (P) Ltd., (1977)
2 SCC 166, this Court summed up the legal position thus:
“7. In fact, it is quite accurate to say that the word ‘may’ by
itself, acquires the meaning’ of ‘must’ or ‘shall’ sometimes.
This word however, always signifies a conferment of power.
That power may, having regard to the context in which it occurs,
and the requirements contemplated for its exercise, have
annexed to it an obligation which compels its exercise in a
certain way on facts and circumstances from which the
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
36  (2015) 8 SCC 744
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obligation to exercise it in that way arises. In other words, it is
the context which can attach the obligation to the power
compelling its exercise in a certain way. The context, both
legal and factual, may impart to the power that obligatoriness.
8. Thus, the question to be determined in such cases always is,
whether the power conferred by the use of the word ‘may’
has, annexed to it, an obligation that, on the fulfilment of certain
legally prescribed conditions, to be shown by evidence, a
particular kind of order must be made. If the statute leaves no
room for discretion the power has to be exercised in the manner
indicated by the other legal provisions which provide the legal
context. Even then the facts must establish that the legal
conditions are fulfilled. A power is exercised even when the
Court rejects an application to exercise it in the particular way
in which the applicant desires it to be exercised. Where the
power is wide enough to cover both an acceptance and a refusal
of an application for its exercise, depending upon facts, it is
directory or discretionary. It is not the conferment of a power
which the word ‘may’ indicates that annexes any obligation to
its exercise but the legal and factual context of it.””
79. In the present case, as discussed above, the usage of “may”
provision in a discretionary manner could lead to highly iniquitous results
and leave scope for arbitrary exercise of discretion.
Thus, keeping in
mind the context, object, legislative intent and the general policy of
resolving ambiguities of beneficial provisions in favour of the employees,
we hold that the expression “may” occurring in Rule 135 needs to be
construed as “shall” and to make it mandatory upon the competent
authority to grant specified pension benefits, in line with the spirit of the
rule, to the compulsorily retired officer without exception. While doing
so, we are not substituting our notion of legislative intent, rather, we are
merely exercising the power to choose between two differing
constructions in order to further the intent of the legislature, in line with
the dictum in Kehar Singh & Ors. vs. State (Delhi Administration)37.
80. Reverting to the next aspect as to whether the officers
compulsorily retired under Rule 135 must be furnished with the copy of
the stated Rules, we are of the considered view that the officers, whose
services are being terminated under Rule 135, ought to be provided with
37  (1988) 3 SCC 609
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atleast the extract of relevant applicable rules alongwith the order of
compulsory retirement so that the concerned employee would know about
the entitlement and benefits under the governing Rule for pursuing claim
thereunder in accordance with the law.
Criminal Appeal No. 413/2020 @ SLP (Crl.) No. 10668 of
2015
81. Leave granted.
82. By this appeal, the appellant has assailed the final judgment
and order dated 2.11.2015 passed by the High Court in Crl.M.C. No.
4497 of 2015, whereby the order dated 10.9.2015 passed by the Additional
Sessions Judge, Patiala House Courts, New Delhi in C.R. No. 18/2015
and order dated 28.4.2015 passed by Metropolitan Magistrate, Patiala
House Courts, New Delhi in C.C. No. 475/1/13, refusing to summon the
respondents as accused in the absence of sanction under Section 197 of
the Code of Criminal Procedure, 1973 (for short “the Cr.P.C.”), came to
be upheld by the High Court. The short question for consideration before
us is whether the refusal to issue summons to the respondents without
prior sanction under Section 197 of the Cr.P.C. is just and proper.
83. The appellant has alleged that the recording of observations
on her psychological state of mind by the respondents was an act of
fabrication and not within their official duties as Committee members,
so as to grant them the protection under Section 197 of the Cr.P.C. It is
further alleged that the act of constitution of another committee, headed
by Ms. Rathi Vinay Jha,
acted as a proof that the first Committee
constituted by the respondents was without a legal mandate and thus,
members of such Committee could not be said to have acted within their
official duties. It is also urged that the sanction was deemed to be granted
as it was not refused within three months of the proposal by virtue of
Rule 19 of CCS (Conduct) Rules, 1964 (for short, ‘the Conduct Rules’)
and the dictum in Vineet Narain &Ors. vs. Union of India &Anr.38.The
appellant, in her complaint, had levelled allegations against the private
respondents of having committed offences under Section 167 of the
Indian Penal Code, 1860 (for short “the IPC”) by forging the report of
the Committee constituted to inquire into the appellant’s complaint of
sexual harassment. The trial court refused to issue summons to the private
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
38  (1998) 1 SCC 226
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respondents for the lack of sanction under Section 197 of the Cr.P.C.
and the High Court upheld the order of trial court.
84. Before we go into the merits of the contentions, we note that
the Department had already ruled on the appellant’s request for sanction
vide a detailed order dated 10.2.2012. That order has been brought on
record by the respondents and we deem it necessary to reproduce the
relevant extract thereof, which reads thus:
“13. WHEREAS, in so far as the allegations made against Smt.
Shashi Prabha and Smt. Anjali Pandey, who were members of
the Committee, regarding the finding recorded by them at Sl. No.
3 of the CONCLUSIONS, which reads as under: -
“3. Ms. Bhatia’s threat to take her own life, allegation of threats
to her from other quarters and her behaviour on subsequent
occasions (Annexure-C) appear to indicate a disturbed state
of mind. As such counselling may benefit her.”
14. WHEREAS, apparently, these observations were made by
the Committee, in view of the fact, that the Applicant – Ms. Nisha
Priya Bhatia had threatened to take her life. It was in this
background, that all the seven members of the Committee had
unanimously observed, that her behaviour indicates a disturbed
state of mind and as such counselling may benefit her. Therefore,
no malafides can be attributed to Smt. Shashi Prabha and Smt.
Anjali Pandey, who were the two signatories along with five other
members of the Committee, who
had signed the report dated 19th
May, 2008. In view of this, no case under Section 167 or Section
44 of IPC is made out against Smt. Shashi Prabha and Smt. Anjali
Pandey.
xxx
xxx
xxx
19. NOW, THEREFORE the Competent Authority after
thoroughly examining the relevant record and perusal of the
complaint dated 10.02.2010 and also Criminal Complaint alongwith
the annexures filed in the Court of Chief Metropolitan Magistrate,
District Courts, Dwarka, under Section 200 Cr.P.C. and Sections
167 & 44 IPC, is satisfied that no case is made out to accord
sanction under Section 197 Cr.P.C. to prosecute Smt. Shashi
Prabha, Joint Secretary and Smt. Anjali Pandey, Director (now
Joint Secretary), u/s 167 and 44 of IPC as requested by Ms. Nisha
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Priya Bhatia. Therefore, the request made by Ms. Nisha Priya
Bhatia in her complaint dated 10.02.2010 is hereby declined.”
85. The position of law regarding the grant of sanction under Section
197 is well settled. The provision is crafted to protect the public servants
from the vice of frivolous complaints against the acts done by them in
the course of their official duties. Sanction under Section 197 of the
Cr.P.C. is a 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 Inspector of Police and Another
vs. Battenapatla Venkata Ratnam and Another39 that no sanction is
necessary in cases involving allegations under Section 167 of the IPC
will be of no avail because the appellant has allowed the decision of the
competent authority dated 10.2.2012, refusing to grant sanction against
the private respondents to become final. Therefore, we
need not dilate
on the grounds urged in this appeal any further. Hence, this appeal is
dismissed.
Writ Petition (Criminal) No. 24 of 2012
88. In this writ petition, the petitioner seeks to invoke the jurisdiction
of this Court under Article 32 of the Constitution and prays for issuance
of appropriate directions to the respondents for bringing about necessary
modifications in the CCS (CCA) Rules in tune with the guidelines laid
down by this Court in Vishaka (supra).Primarily, the attempt of the
petitioner is to put to scrutiny the procedure laid down in the CCS (CCA)
Rules with respect to the complaints of sexual harassment.
89. The petitioner contends that these rules do not provide for
sufficient participation to the victim of sexual harassment during the
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
39  (2015) 13 SCC 87
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inquiry into her complaint. It is further contended that the charged officer
has wide rights of participation in the inquiry process, whereas the victim/
complainant has no such corresponding rights. It is urged that these
rules do not oblige the Complaints Committee to take into account her
documents, her witnesses or her objections against the composition of
the Committee, thereby leading to unfairness and denial of natural justice.
90. It is further contended by the petitioner that the rules do not
provide for the supply of the report of Complaints Committee to the
victim/complainant and O.M. dated 2.8.2016 also falls short of remedying
this lacunae as it comes into operation only if the Complaints Committee
does not recommend any action against the charged officer, thereby
leaving out situations in which an action has been recommended and is
found to be inadequate. Furthermore, it is averred that as per O.M.
dated 2.8.2016, the victim/complainant is entitled to such report only
after it has been placed before the Disciplinary Authority and the authority
has reached the decision of not recommending any action. The specific
prayer made by the petitioner reads thus: -
“1. Issue a writ or any other order directing the Respondent No.
1 to amend the Central Civil Services (Classification, Control &
Appeal) [CCS (CCA)] Rules, 1965 – under which enquiries are
conducted against employees of the Central Government – so as
to give a victim of sexual harassment her due representation in
the process of enquiry initiated into her complaint – thereby
complying with the Vishakha Guidelines, 1997 of this Hon’ble
Court.”
91. The respondents, on the other hand, have submitted that the
provisions of O.M. dated 16.7.2015 clearly lay down the procedure to
be followed by the Complaints Committee and the victim/complainant is
sufficiently involved in the process. Further, the Complaints Committee
has been granted the status of an inquiring authority and the procedure
operates as provided in Rule 14 of CCS (CCA) Rules. Further, it is
submitted that O.M. dated 16.7.2015 vindicates the apprehension of bias
as regards the composition of the Complaints Committee, vide paragraph
10 of the O.M., which reads thus: -
“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
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on this account may invite allegations of bias when conducting
the inquiry and may result in the inquiry getting vitiated. As per
the instructions, when allegations of bias are received against an
Inquiring Authority, such Inquiring Authority is required to stay
the inquiry till the Disciplinary Authority is required to stay the
inquiry till the Disciplinary Authority takes a decision on the
allegations of bias. Further, if allegations of bias are established
against one member of the Committee on this basis, that Committee
may not be allowed to conduct the inquiry.”
92. As regards the supply of the report of Complaints Committee
to the petitioner, the respondents submit that as per O.M. dated 2.8.2016,
where a Complaints Committee has not recommended any action against
the charged officer, the Disciplinary Authority shall supply a copy of the
report of the Complaints Committee to the victim/complainant and shall
consider her representation before coming to a final conclusion.  Notably,
this submission is in line with the contention raised by the petitioner and
needs to be examined as such.
93. The inquiry procedure adopted to deal with the complaints of
sexual harassment at workplace has assumed a sacrosanct position in
law and cannot be undermined under any pretext whatsoever. This Court,
in a catena of pronouncements, has made it clear that fairness and
reasonableness are inalienable parts of any procedure established by
law. In the present case,
however, we are inclined to observe that the
relief claimed by the petitioner is ill advised.
94. The petitioner has called upon us to issue directions to the
respondents (Department of Personnel and Training) for making additions
in the CCS (CCA) Rules on certain counts. Strictly speaking, the law as
regards the contours of powers to be exercised by the Court vis-a-vis
the law/rule making authorities, is well settled and is premised on the
tenets of judicial restraint and separation of powers. In other words, the
Court should be loath to issue direction to the law/rule making bodies to
enact a particular rule, more so when the alleged shortcomings in the
rules are not even a part of the subject matter at hand. In Divisional
Manager, Aravali Golf Club & Anr. vs. Chander Hass & Anr.40, this
Court expounded the essence of judicial powers of this Court by relying
upon Montesquieu’s The Spirit of Laws and noted thus: -
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
40  (2008) 1 SCC 683
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“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.”
(emphasis supplied)
In Social Action Forum for Manav Adhikar and Another vs.
Union of India, Ministry of Law and Justice & Ors.41, this Court had
the occasion to delve into the same aspect again and observed thus: -
“40. We have earlier stated that some of the directions issued in
Rajesh Sharma vs. State of U.P., (2018) 10 SCC 472
have the
potential to enter into the legislative field. A three-Judge Bench in
Suresh Seth v. Indore Municipal Corporation, (2005) 13 SCC
287 ruled thus:(Suresh Seth case, SCC pp. 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
41  (2018) 10 SCC 443
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and Legislative Assemblies exercise sovereign power to enact
laws and no outside power or authority can issue a direction to
enact a particular piece of legislation. In Supreme Court
Employees’ Welfare Assn. v. Union of India, (1989) 4 SCC
187 it has been held that no court can direct a legislature to
enact a particular law. Similarly, when an executive authority
exercises a legislative power by way of a subordinate legislation
pursuant to the delegated authority of a legislature, such
executive authority cannot be asked to enact a law which it
has been empowered to do under the delegated legislative
authority. ....”
95. Be that as it may, in our opinion, the petitioner seems to have
confused two separate inquiries conducted under two separate
dispensations as one cohesive process. The legal machinery to deal with
the complaints of sexual harassment at workplace is well delineated by
the enactment of The Sexual Harassment of Women at Workplace Act,
2013 (hereinafter “2013 Act”) and the Rules framed thereunder. There
can be no departure whatsoever from the procedure prescribed under
the 2013 Act and Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Rules, 2013 (for short, “the 2013
Rules”), either in matters of complaint or of inquiry thereunder. The
sanctity of such procedure stands undisputed. The inquiry under the
2013 Act is a separate inquiry of a fact-finding nature. Post the conduct
of a fact-finding inquiry under the
2013 Act, the matter goes before the
department for a departmental inquiry under the relevant departmental
rules [CCS (CCA) Rules in the present case] and accordingly, action
follows. The said departmental inquiry is in the nature of an 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.
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
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96. The notifications issued by the respondent in the form of O.
Ms. are in the nature of departmental instructions and are intended to
supplement the 2013 Act and Rules framed thereunder. Such notifications
do not operate in derogation of the 2013 Act, rather, they act in furtherance
of the same. The O.M. dated 02.08.2016, for instance, reads thus: -
“3. In accordance with Section 18(1) of the SHWW (PPR) Act,
2013, it has been decided that in all cases of allegation of sexual
harassment, the following procedure may be adopted...”
97. A bare perusal of the aforequoted O.M. makes it amply clear
that the said notification furthers the procedure predicated under the
2013 Act and do not, in any manner, reduce the vigour thereof. It is not
the petitioner’s case that the 2013 Act itself is plagued with procedural
drawbacks. Furthermore, if the present procedural scheme falls short of
just, fair, equitable and reasonable procedural standards as envisaged in
our constitutional jurisprudence, it may warrant intervention by the Court.
Be it noted, the factual matrix in this case relates to the pre 2013 Act era
and was solely governed by the guidelines issued by this Court in Vishaka
(supra). To put it differently, the subject matter or issues raised by the
petitioner in this petition have no bearing on the case in hand.  Hence,
the examination of the argument under consideration at the instance of
the petitioner would be
nothing but a hypothetical or an academic exercise
in futility.
98. In light of the above,the stated relief claimed in this writ petition,
we hold is devoid of merit.
Constitutional compensation for violation of right to life
99. We shall now consider the prayer for grant of compensation
for the violation of petitioner’s fundamental rights, in light of the factual
matrix of the case. Indeed, diverse allegations and counter-allegations
have been made in the course of submissions from both the sides, we
shall restrict ourselves to the established set of facts for consideration of
this prayer. Admittedly, the petitioner filed the complaint of sexual
harassment on 7.8.2007. After entrusting the inquiry of the complaint to
the Committee headed by Ms. Shashi Prabha, the Committee was found
to be incompetent to enquire against one of the charged officers and the
inquiry against that officer was finally entrusted to the Committee headed
by Ms. Rathi Vinay Jha. Be it noted that this was done only after the
incident at the PMO dated 19.8.2008 and the wide media coverage
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thereof. Furthermore, the complaint made in August 2007 was not referred
to the Committee on Sexual Harassment before a delay of over three
months. The referral was made in December, 2007, after a written
complaint to the PMO on 26.10.2007 regarding the inaction of
respondents. This delay was further accentuated by the improper
constitution of the Departmental Committee. In this regard, the enquiry
report submitted by Ms. Rathi Vinay Jha Committee notes thus:
“(iii) The Departmental Committee on Sexual Harassment was
also not properly constituted as per the Vishakha guidelines. As
per this requirement, the Complaints Committee should “have had
a third party as a representative of an NGO or other body who is
familiar with the issue of sexual harassment.” While the Committee
on Sexual Harassment was 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 harassment
is also manifested in subsequent findings of the enquiry report as produced
thus:
“An examination of the Report of the Departmental Committee
on Sexual Harassment submitted in May 2008 established that
the
complaint by Ms. Nisha Priya Bhatia was not given timely
attention or proper enquiry and redressal.
The written comments by Shri Ashok Chaturvedi on file reflect
his lack of concern or respect for ensuring immediate attention to
the complaint. It also reflects Shri Ashok Chaturvedi’s lack of
knowledge of the requirements in the Vishakha guidelines.
Further even when the complaint was referred to the
Departmental Committee on Sexual Harassment, the Secretary
(R) did not pay heed to the constitution of the committee as required
in the Vishakha guidelines. The act was, therefore, in gross
violation of the Vishakha guidelines.”
101. It is, therefore, not in dispute that the petitioner’s complaints
of sexual harassment were met with incidents showcasing procedural
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
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ignorance and casual attitude of her seniors in the department. We also
note that, as regards the press note dated 19.8.2008, this Court had
taken strong exception to the unwarranted attacks on her psychological
status and quashed the note in its entirety vide order dated 15.12.2014
for being violative of the petitioner’s dignity, reputation and privacy.
Despite such terse finding regarding violation of fundamental rights, no
relief of compensation was given to the petitioner and presumably not
pursued by her at that time.
102. The scheme of the 2013 Act, Vishaka Guidelines and
Convention on Elimination of All Forms of Discrimination Against Women
(CEDAW) predicates that a non-hostile working environment is the basic
limb of a dignified employment. The approach of law as regards the
cases of sexual harassment at workplace is not confined to cases of
actual commission of acts of harassment, but also covers situations
wherein the woman employee is subjected to prejudice, hostility,
discriminatory attitude and humiliation in day to day functioning at the
workplace. Taking any other view would defeat the purpose of the law.
A priori, when inaction or procrastination (intentionally or otherwise) is
meted out in response to the attempt of setting the legal machinery in
motion, what is put to peril is not just the individual cries for the assistance
of law but also the foundational tenets of a society governed by the rule
of law, thereby threatening the larger public interests. The denial of timely
inquiry and by a competent forum, inevitably results in denial of justice
and violation of fundamental right. The factual matrix of the present
case is replete with lack of sensitivity on the part of Secretary (R) qua
the complaint of sexual harassment. To wit, time taken to process the
stated complaint and improper constitution of the first Complaints
Committee (intended or unintended) in violation of the Vishaka Guidelines,
constitute an appalling conglomeration of undignified treatment and
violation of the fundamental rights of the petitioner, more particularly
Articles 14 and 21 of the Constitution.
103. This Court has, over the course of time, evolved the judicial
policy of remedying grave violations of the right to life by providing
compensation in monetary terms, apart from other reliefs. In S. Nambi
Narayanan vs. Siby Mathews & Ors.42, this Court exercised its power
to invoke the public law remedy for grant of compensation for the violation
42   (2018) 10 SCC 804
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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) vs. State
of Orissa & Ors.43 and Rudul Sah vs. State of Bihar & Anr.44.
104. In the present case, the petitioner had faced exceedingly
insensitive and undignified circumstances due to improper handling of
her complaint of sexual harassment. Regardless of the outcome of the
inquiry into the stated complaint, the fundamental rights of the petitioner
had been clearly impinged. Taking overall view of the circumstances,we
consider this to be a fit case to award compensation to the petitioner for
the stated violation of her right to life and dignity, quantified at Rs.1,00,000/
- (Rupees one lakh only).  Had it been a case of allegations in the stated
complaint of the petitioner been substantiated in the duly conducted inquiry
(which the petitioner had failed to do), it would have been still worst and
accentuated violation of her fundamental rights warranting suitable
(higher) compensation amount. Be that as it may, the compensation
amount specified hereinabove be paid to the
petitioner directly or be
deposited in the Registry of this Courtand in either case, within six weeks
from today.
Writ Petition (Criminal) No. 1 of 2016
105. The petitioner has filed this writ petition praying for the
issuance of a writ of mandamus directing the respondents to pay for the
higher education of her daughter as a measure of compensation for the
petitioner’s sexual harassment, various criminal offences under the IPC
committed against her and consequent violation of her fundamental rights
under Articles 14, 15, 21 and 22 of the Constitution. The main prayer in
the petition before us reads thus:
“Issue a writ of mandamus/or any other appropriate writ/order/
directions that the Respondents respond to petitioner’s letter dtd.
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
43  (1993) 2 SCC 746
44  (1983) 4 SCC 141
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11.08.15 and pay for higher education of Petitioner’s younger
daughter as compensation for Petitioner’s acute sexual harassment
and for criminal offences committed against her by their officers
u/s 499, 500, 503, 506, 186, 339 & 341 IPC – as proved by various
court orders on record.”
106. The petitioner has brought on record a number of proceedings
before various fora to support her submission that the private respondents
have committed acts of criminal intimidation, defamation and wrongful
restraint against her.  She has also urged that her arrest dated 8.12.2009
led to the violation of her fundamental right under Article 22 of the
Constitution, as the arrest was illegally orchestrated by the respondents.
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 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 petitioner, we have already considered that
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aspect in W.P. (Criminal) No. 24 of 2012 and have provided for
compensation in that regard. However, no compensation can be given to
the petitioner in reference to the cause stated in the writ petition under
consideration.
109. The petitioner, relying upon the order of the High Court in
W.P. (C) 3704 of 2012, has contended that various Court orders on
record prove the commission of criminal intimidation and wrongful
restraint against the petitioner by the officers of the respondents. We
outrightly reject this inference purportedly deduced from the stated order.
The scope of adjudication before the High Court in the aforementioned
writ petition was limited to the regularisation of the period of absence
and grant of consequent benefits. Mere recording of observations revolving
around procedural improprieties in following Vishaka (supra) Guidelines,
consequent transfer of the petitioner and various cross allegations
between the parties, in no manner is an adjudication on the criminal
liability of the officers. In fact, the question of criminal liability of the
officers has not been adjudicated in any preceding case so far. Thus, no
additional compensation under the pretext of the allegations under
consideration can be granted to the petitioner. Therefore, this petition
must fail and is disposed of in the aforementioned terms.
110. In reference to I.A. No. 79011 of 2019 filed in S.L.P. (Civil)
No. 2307 of 2019, having regard to the peculiar circumstances of
the
case, it is ordered that no liability as to the payment of penal house rent
charges upto next three months from today shall be recovered from the
petitioner.  However, with the order of compulsory retirement becoming
final consequent to this order, the respondents are free to get the
government accommodation vacated in accordance with the extant rules
and follow due process of law after expiry of three months period from
today.
111. While parting, we need to observe that the petitioner/appellant
herein appeared and argued in person and presented herself with utmost
dignity and displayed dignified demeanour towards the Court. Despite
the underlying emotional appeal connected with this case, the petitioner/
appellant presented her case like any other accomplished lawyer in
reference to the legal principles.
112. Accordingly, we dispose of the batch of four cases before us
in the following terms and directions: -
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
[A. M. KHANWILKAR, J.]
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(i)
We hold that Rule 135 of the 1975 Rules is valid and does
not suffer from the vice of unconstitutionality.  Further, the
expression “may” occurring in sub-Rule (2) of Rule 135
must be read as “shall”, for giving true effect to the object
of the provision.
(ii)
The impugned order of compulsory retirement passed under
Rule 135 against the appellant/petitioner is valid and legal
and the decision of the High Court in this regard stands
confirmed subject, however, to modification thereof to the
extent indicated in the present judgment.
(iii)
The grant of pension to the appellant/petitioner herein shall
be computed in accordance with the date of notional
superannuation as directed by the High Court and not from
the date of actual compulsory retirement and additional sum
in that regard, if any, be paid to her within six weeks from
today.
(iv)
The respondent(s) (Union of India) is directed to pay
compensation quantified at Rs.1,00,000/- (Rupees one lakh
only) to the appellant/petitioner herein for violation of her
fundamental rights to life and dignity - as a result of the
improper handling of her complaint of sexual harassment.
The compensation amount be paid to the appellant/petitioner
by way of direct transfer in her bank account or be deposited
in this Court and in either case, within six weeks from today.
(v)
The appellant/petitioner is granted time to vacate and hand
over peaceful possession of her official quarter
for a period
of three months from today.  Further, no penal house rent
charges be levied or recovered from the petitioner upto next
three months from today.
113. Accordingly, the appeals, writ petitions and pending
interlocutory applications shall stand disposed of in the above terms.
Divya Pandey
Matters disposed of.