Supreme Court: The bench of AM Khanwilkar and Dinesh Maheshwari, JJ has upheld the compulsory retirement for former RAW agent Nisha Priya Bhatia, who had levelled sexual harassment complaints against colleagues Ashok Chaturvedi and Sunil Uke, on the ground of “exposure” having regard to the nature of work of the Organisation of which confidentiality and secrecy are inalienable elements.
The Court, however, directed the Centre to pay, within 6 weeks, compensation quantified at Rs.1,00,000/ to Nisha Priya Bhatia for violation of her fundamental rights to life and dignity, as a result of the improper handling of her complaint of sexual harassment.
The Court took note of the fact that in the present case, the appellant 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.
“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.”
- On 07.08.2007, Nisha Priya Bhatia filed a complaint of sexual harassment against Ashok Chaturvedi, working as Secretary (R) Incharge of the Organisation and Sunil Uke, working as Joint Secretary in the Organisation at that time. She alleged that the charged officers subjected her to harassment by asking her to join the sex racket running inside the Organisation for securing quicker promotions and upon refusal to oblige, she was subjected to persecution.
- The Organisation responded to the allegations after a gap of almost three months by constituting a Complaints Committee in accordance with the guidelines laid down in Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
- The Committee, in its exparte report, concluded that no allegations of sexual harassment could be proved against Sunil Uke. This report was followed by a ‘widely reported’ incident at the Prime Minister’s Office where the appellant reportedly attempted to commit suicide on 19.8.2008.
- Cabinet Secretariat, through the Press Information Bureau, released a press note dated 19.8.2008 carrying the title “Fact Sheet on Suicide Attempt by Ms. Nisha Priya Bhatia”. This press note carried information pertaining to the incident, her complaints against her colleagues within the Department and the state of her mental health and psychological condition.
“It is pertinent to note that the observations regarding the disturbed mental state of the appellant were based on an ‘informal opinion’ sought by Secretary (R) from the Head of the Department of Psychiatry, All India Institute of Medical Sciences (AIIMS).”
- Supreme 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.
- The incident dated 8.2008 at the PMO had attracted immense media attention across national and international portals and culminated into a series of media reports whereby the appellant’s identity, including her association with the Organisation, became a subject of public discourse.
“This exposure, furthermore, led the respondents to declare the appellant as unemployable, having regard to the nature of work of the Organisation of which confidentiality and secrecy are inalienable elements.”
Constitutionality of Rule 135 of the Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975
Appellant argued that Rule 135 is 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 the stated Rule modifies that right to the detriment of the employee.
The Court noticed that Article 311 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.”
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.”
The Court further explained 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. Subrules (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 Court, hence, concluded,
“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.”
[Nisha Priya Bhatia v. Union of India, 2020 SCC OnLine SC 394 , decided on 24.04.2020]