SC:Art. 311 doesn’t apply to compulsory retirement of exposed RAW officer

The Hon’ble Supreme Court, on 24th April 2020, in the matter of Nisha Priya Bhatia v. Union of India & Anr. pronounced that when a RAW officer is compulsorily retired due to exposure as an intelligence officer or due to reasons of security or disability/injuries there is no requirement of prior notice or abiding by principles of natural justice. An action taken under Rule 135 of Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 need not be preceded by the safeguards provided under Article 311 of the Constitution.

The Hon’ble Supreme Court also observed that:

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. (Para 1)

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”. (Para 26)

 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. (Para 27)

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. (Para 29)

Whether the action taken under Rule 135 of the Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 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. (Para 30)

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 Organisation for reasons of security. Sub­rule (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. (Para 32)

Order under Rule 135 of Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975does not entail any charge, stigma or imputation.  (Para 32)

A compulsory retirement without anything more does not attract Article 311(2). (Para 34)

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. (Para 36)

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. (Para 36)

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.  (Para 36)

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 Rule 135 of Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 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. (Para 37)

A deputationist is an employee who has been assigned to another department from his/her parent department. 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. (Para 39)

Mere fact of non­prescription of inquiry under Rule 135 of the Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 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. (Para 40)

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. (Para 40)

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 non­penal 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. (Para 43)

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. (Para 46)

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. (Para 51)

The scope of judicial review is very limited in cases of compulsory retirement and is permissible on the limited grounds such as non­application of mind or mala fides. (Para 54)

Natural justice is not an all­pervasive pre­condition in all the executive decisions and its extent of applicability varies in myriad set of situations.  (Para 60)

Rule 135 of the Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975, excludes any requirement of prior notice or abiding by principles of natural justice. (Para 62)

Exercise of power of modification of pension under Rule 9 of CCS (Pension) Rules,1972 is subject to the finding of misconduct or negligence against the employee, reached after conducting departmental or judicial proceedings. (Para 67)

The raison d’etre of Rule 9 of CCS (Pension) Rules,1972 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. (Para 68)

The pension of an employee retired under Rule 135 of the Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 is to be determined in accordance with the date of notional superannuation and not in accordance with the date of actual retirement. (Para 69)

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. (Para 71)

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. (Para 75)

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. (Para 76)

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. (Para 78)

The expression “may” occurring in Rule 135 of the Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975 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. (Para 79)

The officers, whose services are being terminated under Rule 135 of the Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975, 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. (Para 80)

Section 197 of the Cr.P.C. 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 pre­requisite, in law, for taking cognizance against public servants. (Para 85)

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. (Para 94)

The inquiry under the Sexual Harassment of Women at Workplace Act, 2013 is a separate inquiry of a fact­finding nature. Post the conduct of a fact­finding inquiry under the Sexual Harassment of Women at Workplace Act, 2013, the matter goes before the department for a departmental inquiry under the relevant departmental rules and accordingly, action follows. The said departmental inquiry is in the nature of an in­house 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. (Para 95)

Departmental instructions intended to supplement The Sexual Harassment of Women at Workplace Act, 2013 and Rules framed thereunder do not operate in derogation of the act, rather, they act in furtherance of the same. (Para 96)

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. (Para 102)

Copy of judgement: Judgement_24-Apr-2020

-Adv. Tushar Kaushik

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