2020 (4) TMI 890 - SC - Indian Laws

Striking a legal balance between the State-citizen intercourse in the context of relationship of an employer and employee - Compulsory retirement of the Appellant - seeking reinstatement of the Appellant back in service - sexual harassment in the workplace - inducing to join sex racket running inside the organisation - HELD 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. 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. 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 - 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. Taking overall view of the circumstances - this is a fit case to award compensation to the Petitioner for the stated violation of her right to life and dignity, quantified at ₹ 1,00,000/- - 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. Petition disposed off with following directions (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 ₹ 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 up to next three months from today.

Summary

Issues Involved:
1. Constitutionality of Rule 135 of the Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975.
2. Legality of the order of compulsory retirement.
3. Allegation of mala fide exercise of power.
4. Non-application of mind in the decision-making process.
5. Applicability of Fundamental Rule 56(j) and Rule 9 of the CCS (Pension) Rules.
6. Pension claims and entitlement.
7. Criminal proceedings against the Respondents.
8. Procedural fairness in handling sexual harassment complaints.
9. Compensation for violation of fundamental rights.

Detailed Analysis:

1. Constitutionality of Rule 135:
The Supreme Court upheld the constitutionality of Rule 135, stating it does not contravene Article 311 of the Constitution, which deals with dismissal, removal, or reduction in rank of public servants. The Court clarified that compulsory retirement under Rule 135 is not a punishment but a measure taken in public interest, particularly concerning the security of the organization. The Court emphasized that Rule 135 is a special provision under Article 309 and operates independently of Fundamental Rule 56(j), which deals with general compulsory retirement.

2. Legality of the Order of Compulsory Retirement:
The Court found the order of compulsory retirement to be valid and legal. It noted that the decision was made after a series of discussions and consultations at the highest levels of government, including the Prime Minister's Office (PMO). The Court observed that the decision was based on the exposure of the Appellant as an intelligence officer, which posed a security threat to the organization.

3. Allegation of Mala Fide Exercise of Power:
The Court rejected the allegation of mala fide exercise of power, noting that the Appellant had not impleaded the concerned persons against whom allegations were made. The Court emphasized that the decision to invoke Rule 135 was made after considering various options and was not driven by any malicious intent.

4. Non-Application of Mind:
The Court examined the timeline of events and found that due application of mind was evident in the decision-making process. The Court noted that the decision to compulsorily retire the Appellant was made after a preliminary inquiry and a series of internal communications and consultations.

5. Applicability of Fundamental Rule 56(j) and Rule 9 of the CCS (Pension) Rules:
The Court clarified that Rule 135 is a special provision and operates independently of Fundamental Rule 56(j). It stated that Rule 135 covers specific situations of exposure or unemployability for reasons of security, while FR 56(j) deals with general public interest. The Court also noted that Rule 9 of the Pension Rules does not apply to cases of compulsory retirement under Rule 135, as it is not a penal action.

6. Pension Claims and Entitlement:
The Court directed that the Appellant's pension be computed based on the date of notional superannuation, as directed by the High Court. The Court emphasized that the grant of pension under Rule 135 is mandatory and not discretionary, interpreting the word "may" in the rule as "shall."

7. Criminal Proceedings Against the Respondents:
The Court upheld the refusal to issue summons to the Respondents without prior sanction under Section 197 of the Code of Criminal Procedure. It noted that the Appellant had not challenged the order refusing sanction, and therefore, the issue could not be revisited.

8. Procedural Fairness in Handling Sexual Harassment Complaints:
The Court acknowledged the procedural lapses in handling the Appellant's complaint of sexual harassment, including delays and improper constitution of the Complaints Committee. The Court emphasized the need for timely and proper inquiry into such complaints, as mandated by the Vishaka Guidelines and the Sexual Harassment of Women at Workplace Act, 2013.

9. Compensation for Violation of Fundamental Rights:
The Court awarded compensation of ?1,00,000 to the Appellant for the violation of her fundamental rights to life and dignity due to the improper handling of her sexual harassment complaint. The Court noted that the Appellant had faced insensitive and undignified circumstances, warranting compensation.

Conclusion:
The Supreme Court upheld the constitutionality and legality of Rule 135 and the order of compulsory retirement. It rejected allegations of mala fide exercise of power and non-application of mind. The Court directed the computation of pension based on notional superannuation and awarded compensation for the violation of fundamental rights. The Court also emphasized the importance of procedural fairness in handling sexual harassment complaints.