Nisha Priya Bhatia vs Union of India & Anr.

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. 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.

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 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 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, 3235][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 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 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 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 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 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 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 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 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-BC; 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 (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 6769][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.

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 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 7577][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 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; 663A]

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-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, 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 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. 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.