In a significant ruling, the Supreme Court Friday upheld the constitutional validity of a 35-year-old rule empowering the government authority to compulsorily retire an intelligence officer on account of him or her being exposed or becoming unemployable with the organization.
A bench of Justices A M Khanwilkar and Dinesh Maheshwari delivered the verdict on a batch of four petitions filed by Nisha Priya Bhatia on issues emanating from her compulsory retirement from the RAW under Rule 135 of the Research and Analysis Wing (Recruitment, Cadre and Services) of 1975.
The court was dealing with the plea which raised various issues including that the rule was 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 there was non-observance of procedural safeguards -- like right to be heard -- for the employee who is being retired compulsorily.
We hold that Rule 135 of the 1975 Rules is valid and does not suffer from the vice of unconstitutionality, the bench said and upheld the order of compulsory retirement passed against Bhatia as valid and legal.
The bench dealt in detail with the ingredients of Rule 135 and said that the procedures to be adopted in Article 311 of the Constitution cannot be applied in the case of compulsory retirement.
"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 bench said in its 90-page verdict.
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The rule referred to the terminal benefits on compulsory retirement and said that 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.
Disposing pleas of former RAW officer, the bench said, 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.
The top court took note of the fact that there was delay in setting up of an in-house panel to inquire into the sexual harassment allegations of the former officer against her two seniors in the organization and directed the Centre to pay a compensation of Rs 1 lakh to her.
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, it said.
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, it said.
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, it said.
The top court held that it was 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.
Bhatia, who had worked in various capacities in the RAW, had filed for appeals including the one filed against the 2019 Delhi HC judgment upholding the department's order to compulsory retire her.
The Central Administrative Tribunal had earlier quashed the order of compulsory retirement and directed her reinstatement in service.
The case has had many twists and turns and one of the incident pertained to her alleged bid to commit suicide outside the PMO here. She had initially filed a complaint of sexual harassment against two officers of the organization and was later compulsorily retired from the services.
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