Case BriefsSupreme Court

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.”

Factual Matrix

  • 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]

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Narendra Singh Dhaddha and Mohammad Rafiq, JJ. dismissed the appeal filed by Rajasthan State Road Transport Corporation (RSRTC) challenging a judgment passed by the single judge of the present court.

In the instant case, the respondent-writ petitioner was appointed in the service of the appellants as Conductor on 09-03-1984. He was dismissed from his service and the appellant-RSRTC was directed to substitute the penalty by compulsory retirement of the respondent with continuity of service and all the benefits, with payment of only 50% actual wages. After a lot of litigation, the respondent finally joined his duties but upon rejoining he was served with a charge sheet on 10-01-2000 alleging that he was absent from his duty. Earlier also a charge sheet was issued on the allegation that he too leave for somedays and cancelled the travel of the vehicle which caused loss of Rs 22,010 to the RSRTC. Another charge sheet was issued on 25-06-2003, alleging that when he was transferred to Hanumangarh from Kota, he did not report for the duty. A notice was served to him but he avoided it by giving the reason that he was undergoing treatment for back and spinal pain. An enquiry was conducted on the respondent for three different cases. After the enquiry was completed, the Chief Manager of the RSRTC passed a common order of penalty for removal of the respondent from service on 10-05-2006. This order was challenged by the respondent, but it was dismissed later with direction to the respondent to avail alternative remedy before the Labour Court under the Industrial Disputes Act, 1947. Then the respondent preferred to a division bench, which set aside the order and remanded the matter back to the Single Bench to decide the writ petition afresh.

Vinayak Joshi, learned counsel appearing on behalf of the appellants argued that the Single Judge had done a mistake of law by setting aside the order of removal of the respondent from the service. Illegality was observed by the Single Judge because a common order of penalty cannot be passed in three different charge sheets issued. The learned Single Judge did not analysis the order dated 10-05-2006 well.

H.V. Nandwana, learned Amicus Curiae appearing on behalf of the respondent opposed the appeal and contended that the appellant-RSRTC had adopted Rajasthan Civil Services Rules, 1958 for the purpose of holding disciplinary proceedings against its employees. Relying on the judgment of the Supreme Court in Mohd. Yunus Khan v. State of Uttar Pradesh, (2010) 10 SCC 539 the counsel submitted that the order passed by the disciplinary committee was vague and non-speaking one.

The court upon perusal of the facts of the case stated that the court can exercise its power of judicial review under Article 226 of the Constitution of India and interfere if the quantum of penalty is disproportionately given. Furthermore, it was held that the order of the Single Judge of this court is just, reasonable, and equitable. [Rajasthan State Road Corporation v. Suresh Agarwal, 2019 SCC OnLine Raj 3960, decided on 04-11-2019]

Case BriefsHigh Courts

Madras High Court: The Division Bench of R. Subbhiah and T. Krishnavalli, JJ., dismissed a writ petition filed for issuance of a Writ of Certiorarified Mandamus.

The present writ petition was filed by a former Chief Judicial Magistrate calling for records relating to the proceedings of the first and second respondent and quashing the same by directing to reinstate him as Chief Judicial Magistrate, Tiruvannamalai.

Facts of the Case:

Petitioner was appointed as Civil Judge in Tamil Nadu State Judicial Service. During the course of service, the petitioner was transferred and posted at various places. While the petitioner was in Judicial Service, by a Memorandum by the second respondent he was informed that while recording the Annual Confidential Report as Judicial Magistrate No. III for the period from 02-05-2012 to 16-10-2012, High Court has recorded his reputation as to honesty, integrity and impartiality as ‘not satisfactory’ and under special remarks column, it was stated that “officer is to avoid close contact with Advocates”.

On receipt of the above-stated memorandum, the petitioner made a representation requesting the High Court to review and expunge the said adverse remarks. Later, the second respondent informed the petitioner that on consideration of his representation High Court had expunged the remarks.

Petitioner through the “Times of India report” came to know that he had been sent out of service at the age of 50 years for misconduct pursuant to a resolution passed by the Full Court.

On being aware of the same, the petitioner made another representation to the second respondent stating that he had worked as a Judicial Officer in several districts for more than 18 years without any allegations and he has also reached the norms by the High Court. Petitioner had enclosed his work statement along with the representation and requestedthe second respondent to permit him to continue in service.

Administrative Committee of the High Court resolved to continue the services of the Judicial Officer subject to the approval of the Full Court. Though, full-court unanimously resolved not to extend the service of the petitioner with direction to the Registry to address the State Government to issue necessary orders.

First respondent passed the order compulsorily retiring the petitioner from service in “public interest”.

Thus, the orders passed by the respondents are under challenge in the present writ petition.

Senior Counsel representing the petitioner submitted that there are various factors that contribute to a Judicial Officer not being able to achieve the norms for a certain period and that by itself is not a ground to compulsorily retire Judicial Officer. The impugned orders are passed based on total non-application of mind and there is an error of jurisdiction.

Sum and substance of the contentions urged by the learned Senior Counsel appearing for the petitioner are as follows:

  • The necessary ingredients under FR.56(2) for resorting to compulsory retirement are totally absent in the present case, since, in the Minutes of the Full Court meeting held on 19.03.2018, the words “compulsory retirement”, “is of the opinion” and “in public interest”, are not found.
  • Compulsory retirement passed against the petitioner is not based on the subjective satisfaction of the Full Court, since there are no records to show that the work done statements and ACRs of the petitioner were placed or there were any deliberations said to have been made. Moreover, there is no reference with regard to the Resolution of the Administrative Committee also.
  • Impugned order is based on no materials to support the ultimate conclusion.

High Court’s observation and conclusion

Court stated that the “work done statement” of the petitioner it was clear that the petitioner had not reached norms for a certain period. Therefore, it cannot be said that the decision taken by the Full Court is without any materials.

Another submission of the Senior Counsel for the petitioner that in the Minutes of the meeting of the Full Court, words “compulsory retirement” is of the opinion and “in public interest” were not found, which would show that the necessary ingredients for resorting to compulsory retirement are totally absent in the present case. In respect to this, Court was of the opinion that since such words were not mentioned in the impugned G.O. of the first respondent or the order passed by the second respondent, it will not ipso facto render the orders, which are impugned in this writ petition, vitiated.

“It is well settled that the order of compulsory retirement is neither a punishment nor a stigma and the principles of natural justice have no role play in ordering compulsory retirement.”

High Court stated that,

The conclusion arrived at by the respondents to compulsorily retire the petitioner from service cannot be interfered with by this Court, unless such a conclusion is based on no evidence or irrelevant material.

Court relied on the High Court of Judicature at Bombay v. Udaysingh, (1997) 5 SCC 129, wherein the scope of the Court in regard to Judicial Review of cases was discussed.

Hence, the Court held that it has no power to interfere with the decision taken by the respondents and to substitute its own conclusion.

Court added to its conclusion that,

“There are evidences made available against the petitioner based on which the respondents have come to a conclusion to compulsory retire the petitioner from service in the form of service particulars of the petitioner like ACR, work done statement, vigilance enquiry report, leave particulars etc. While so, it cannot be again said that there are no material at all for the respondents to arrive at a conclusion to pass the order of compulsory retirement against the petitioner.”

Thus the Court dismissed the petition in view of the above reasons. [R. Naraja v. State of Tamil Nadu, 2019 SCC OnLine Mad 9120, decided on 05-11-2019]

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S.K. Mishra and Dr A.K. Mishra, JJ., dismissed the writ petition against the judgment declining interference in the disciplinary proceeding and order imposing the punishment of compulsory retirement.

The facts of the case were that appellant-petitioner was appointed as an officer of the Indian Bank as Inspecting Manager at Kolkata. He was entrusted with the inspection of banks at different places for which the bank had to pay the bill for lodging. The Deputy Manager General, on finding the irregularity asked for the explanation which was duly submitted but was not appreciated and appellant-petitioner alleged to be dishonest under the Indian Bank Officer Employees’ (Conduct) Regulations, 1976. A disciplinary authority thus imposed a major penalty of compulsory retirement. The appeal and review petition filed before the reviewing authority was dismissed and hence, this writ.

The Judgment of the Single Judge Court after submission held that the court had the jurisdiction to entertain the writ petition. The court further held that the court could not interfere with the enquiry, appellate and reviewing authority in absence of the procedural irregularities. The Court further held that “The power of judicial review to scan the evidence, which had reached finality on the basis of concurrent finding, was found uncalled for in the facts placed and law analyzed.”

The matter was then called for Division Bench which observed the Judgment of Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423 in which the court made it clear that the writ of certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. where lower courts either without jurisdiction, or in excess of jurisdiction or acting in flagrant disregard of law or rules of procedure or acting in violation of the principles of natural justice, pass an order thereby occasioning failure of justice. Thus, the impugned judgment of the learned single judge was found to have the support of law and facts. Thus, writ dismissed. [Abhiram Samal v. Indian Bank, 2019 SCC OnLine Ori 198, decided on 01-05-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench comprising of M. K. Hanjura, J., dealt with a petition where the question before Court was whether government order given by Government of Jammu and Kashmir under Article 226(2) of the Jammu and Kashmir Civil Services Regulations where petitioner was given compulsory retirement could have been given under the circumstances of the instant case or not.

Facts of the case are that an FIR was registered against the petitioner by the Vigilance Organization, Kashmir, alleging the petitioner to have committed criminal misconduct punishable under Section 5(2) of the J&K Prevention of Corruption Act read with Sections 161 and 109 of the Ranbir Penal Code (RPC) after which petitioner was suspended. It is this suspension order which is impugned in the instant case. Respondent stated that it is in public interest that the administration work is clean and effective. Thus, it is important that inefficient and corrupt officers are weeded out from the services. On the above ground respondent removed petitioner from his services. Petitioner contended that the committee which was created did not consider the ‘Annual Performance Report’ of the petitioner.

The High Court was of the view that compulsory retirement merely because an FIR is lodged against the petitioner by the Vigilance Organization cannot be sustained. Therefore, impugned order was quashed. [Ahsan-ul-Haq Khan v. State of J&K, 2018 SCC OnLine J&K 584, dated 05-09-2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: While deciding upon the petition challenging the the defensibility and legality of Order No. 36 of 2015, passed by the Managing Director, J&K PCC, Ltd., Srinagar, directing the retirement of the petitioner from service with effect from 01.07.2015 in terms of Article 226(2) of the Jammu and Kashmir Civil Service Regulations, the Bench of M.K. Hanjura, J., held that registration of FIR or pendency of criminal case(s), cannot form the basis for a compulsory retirement of an employee in the light of such employee’s excellent/good/satisfactory Annual Performance Report (APR) and such an outlook is neither in tune nor in line with the scheme and mandate of Article 226(2) of the J&K CSR.

As per the facts of the present case, the petitioner initially worked as a daily rated worker in the respondent department and was regularized as Junior Assistant and later promoted as Assistant Manager. However various complaints were filed against the petitioner before the Vigilance Organization Kashmir (VOK), who registered an F.I.R under Sections 420, 467, 468 of RPC against the petitioner, as a consequence of which the respondent department placed the petitioner under suspension, compelling the petitioner to approach the Court. The petitioner via his counsel Arshid Andarabi, contended before the Court that the impugned Order directing the compulsory retirement is arbitrary. Per contra, the respondents contended that the order of compulsory retirement of the petitioner is neither punitive nor stigmatic, but it is based on the sacrosanct object of weeding out the inefficient officials in order to maintain a high standard of efficiency and initiative in the State services and the Courts have limited scope of judicial review in such cases

Perusing the facts and arguments, the Court observed that the exercise of the power of compulsory retirement vested in the Government (the Corporation in this case), under Article 226(2) of CSR is based on reason, justice, fairness and a just analysis and an order of compulsory retirement, taken under the safety valve of public interest, could not be treated as a major punishment. However the order of compulsory retirement can be subjected to judicial scrutiny, if the Court is satisfied that the order passed is mala fide; or that it is based on no evidence; or that it is arbitrary. The Court was of the opinion that the practice followed by the Corporation in directing compulsory retirement for the petitioner was completely unwarranted because that would violate the basic maxim of ‘innocent until proved guilty’. The Court also observed that via the impugned Order the State has applied this principle in the reverse. The Court also took notice the petitioner has had a satisfactory employment record with a proven valid degree. Finally the Court observed that the reputation of a public servant cannot be termed as doubtful and his conduct cannot be determined only on spoken words in the absence of any material on record which was the fundamental flaw in the Order issued against the petitioner. [Mohd. Shafi Shah v. Comm. Sectt. PWD, 2018 SCC OnLine J&K 138, decided on 01.03.2018]

Case BriefsHigh Courts

High Court of Jammu and Kashmir at Jammu: A Division Bench comprising of Dhiraj Singh Thakur J. and Sanjay Kumar Gupta J. recently addressed a Letters Patent Appeal which challenged the order passed by the Single Judge wherein a Government Order directing the premature retirement of the petitioner had been quashed. The reasoning that had been provided for quashment of the order was that the retirement had been ordered simply based on an FIR registered against the petitioner and without considering his service record.

The facts of the case revolve around Regulation 226(2) of the Jammu & Kashmir Civil Services Regulations which authorizes the Government to retire a Government Servant at any time after completion of 22 years of service or after the employee has attained the age of 48 years in public interest. This regulation essentially exists for the government to get rid of any employee who is considered to be inefficient or of doubtful integrity or corrupt. For execution of this power, it has to follow the norms that have also been set by the Government. In the present case, the Government had set up a Committee in exercise of its powers under the aforementioned regulation. The Committee recorded that the petitioner against whom the regulation was being enforced did not have a good reputation in public, had an FIR registered against him on charges of bribery which was found to be true. Based on these grounds, the Government had passed the order for his pre-mature retirement from service.

This order was challenged by the petitioner on the grounds of it being arbitrary and without having recorded the requisite subjective satisfaction on the basis of the service record as was prescribed under Regulation 226. The petitioner had also argued that the FIR had been registered to demolish his good reputation. The counsel for the petitioner had relied on State of Gujarat v. Suryakant Chunilal Shah, (1999) 1 SCC 529 wherein the Supreme Court had envisaged a situation when mere registration of an FIR would constitute as relevant material for compulsory retirement, although it would then depend on the nature of the alleged offence committed. Counsel for the appellant, on the other hand, argued that the recommendations of the Committee were not made simply upon the fact of the registered FIR but also because the respondent lacked good reputation and was of doubtful integrity.

The Court referred to Baikuntha Nath Das v. Chief District Medical Officer, (1992) 2 SCC 299 wherein the Supreme Court had crystallized the principles surrounding “Compulsory Retirement”. Although principles of natural justice did not have a place in such situations, judicial scrutiny couldn’t be excluded. If the order was mala fide, not based on any evidence or arbitrary in the sense that no reasonable person would come to the decision in question on the available material, it would be a perverse order. The Court had emphasized that the Government would have to consider the record and performance of the public servant which would include character rolls, both favorable and adverse.

The Court also referred to M.S Bindra v. UOI,  (1998) 7 SCC 310, wherein it was clarified that even though natural justice doesn’t have any role to play in the context of compulsory retirement, it wouldn’t exclude considering the version of the delinquent officer which would be imperative to reach the correct conclusion.

The Court pointed out that in State of Gujarat v. Suryakant Chunilal Shah, (1999) 1 SCC 529 it was held that the annual character roll of the Government Servant would give an appropriately objective assessment of his integrity and job performance since adverse remarks on such rolls would be warning signs of the absence of such a person’s job integrity. It also noted that the Court, in this case had held that merely being involved in a criminal case wouldn’t per se establish the person’s guilt and hence, a compulsory retirement based on such a factor wouldn’t stand.

The Court observed that hearsay reputation or casual statements questioning the integrity of a person would not be considered as they could be baseless or emanating from mala fide intentions. For the purposes of assessing the reputation of a government servant, the material would have to be cogent and in the shape of a record which would need to be considered in the correct perspective. Opinions regarding doubtful integrity and questionable reputation would need to emanate from an officer who had an opportunity to work with the delinquent officer on a day to day basis. Dismissing the appeal, the Court upheld the Single Judge’s decision. [State of J&K v. Krishan Lal,  2017 SCC OnLine J&K 731, order dated 12.12.2017]