SC awards former RAW Director one lakh Compensation for improper handling of her sexual harassment complaint: holds it violation of fundamental rights

The SC on April 24, 2020 {Nisha Priya Bhatia v Union of India & Anr.} held that 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. It was directed that the compensation amount be paid to the appellant/petitioner by way of direct transfer in her bank account or be deposited in the SC and in either case, within six weeks from today. 

It was further held by the SC Bench, comprising of Justice A.M. Khanwilkar &  Justice Dinesh Maheshwari, that in   the   present   case, the   petitioner   had   faced   exceedingly insensitive and undignified circumstances due to improper handling of her complaint of sexual harassment. It was held that 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,   it was held by the SC that 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). It was further held that 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.

AWARD OF COMPENSATION

It was observed by the SC that 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. It was held that as regards the press note dated 19.8.2008, the SC earlier 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. It was held that 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.

It was held that the 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; and when as per settled position of law, life itself commands self-­respect.

ORDER OF COMPULSORY RETIREMENT

It was held by the SC that, 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. It was observed that in other words, even if the SC accepts 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. It was held that in an allegation of this nature, de­facto prejudice needs to be proved by evidence and this   requirement   of   law   fails   to   garner   support   from   the   factual position emanating in this case.

It was further held that notably, the appellant has not impleaded the concerned persons against   whom   allegations   of mala   fides are   made,   as   party respondent. Hence, it was held that those allegations cannot be taken forward. It was further held that Rule 135 of the 1975 Rules, excludes any requirement of prior notice or abiding by principles of natural justice.

CHALLENGE TO RULE 135

It was held by the SC that the action under Rule 135 of the Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 (for short, “the 1975 Rules”) 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. It was held that 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.

It was further held 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.  It was observed that the opening words of Article 309 ­ “Subject to the provisions of this Constitution”   ­   point   towards   the   same   analogy.   However, it was held that  this subjection   clause   shall   not   operate   upon   the   rules   governing compulsory   retirement.   It was held that for the   legal   concept   of   compulsory retirement, it  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. It was held that 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 Upadhya (AIR 1961 SC 751) that 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.

It was therefore held that 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.

Pensionary Benefits

It was held that Rule 135 is cast in the form of a beneficial, balancing and protective provision for the nature of action against the employee concerned. It was held it is 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 organizational exigencies. It was observed that 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, it was held that 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.

In the present case, it was held that, the usage of “may” provision in a discretionary manner could lead to highly iniquitous results and leave scope for arbitrary exercise of discretion.  It was held that keeping in mind the context, object, legislative intent and the general policy of resolving ambiguities of beneficial provisions in favour of the employees, it holds 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.   It was held that while doing so, the SC is not substituting its notion of legislative intent, rather, it is 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) {(1988) 3 SCC 609}.

It was therefore held that Rule 135 of the 1975 Rules is valid and does not suffer   from   the   vice   of   unconstitutionality.     Further, it was held that  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.

It was directed that 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.

In the present lis, 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” were in consideration before the SC.    

In the present case, 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. The said judgment of the HC was upheld by the SC in above terms.

Accordingly,   the   appeals,   writ   petitions   and   interlocutory applications were disposed of, with above directions, by the SC.