TMI Blog2020 (4) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penal house rent charges be levied or recovered from the Petitioner up to next three months from today. - Civil Appeal No. 2365 of 2020 (Arising out of SLP (Civil) No. 2307 of 2019), Criminal Appeal No. 413 of 2020 (Arising out of SLP (Crl.) No. 10668 of 2015), Writ Petition (Criminal) Nos. 24 of 2012 and 1 of 2016 - - - Dated:- 24-4-2020 - A.M. Khanwilkar and Dinesh Maheshwari, JJ. JUDGMENT A.M. Khanwilkar, J. 1. This lis throws up questions regarding striking a legal balance between the State-citizen intercourse in the context of relationship of an employer and employee. 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. Thereby giving rise to situations like the present case wherein the ultimate balance between security of a State organisation dealing with sensitive matters of security of the nation and individual interest of a person employed thereat as an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an the series of allegations regarding acts of commission and omission which culminated into litigation continuing up to the present batch of four cases. 7. The Organisation responded to the allegations of sexual harassment after a gap of almost three months by constituting a Complaints Committee in accordance with the guidelines laid down in Vishaka and Ors. v. State of Rajasthan and Ors. (1997) 6 SCC 241 and appointed Ms. Shashi Prabha, a female officer in the Organisation, as Chairperson of a three-member Complaints Committee. The Complaints Committee so constituted did not consist of a third party as a representative of an NGO or other body who is familiar with the issue of sexual harassment , as predicated by the guidelines given in Vishaka (supra). Resultantly, the Committee was re-constituted on 1.11.2007 with the addition of Dr. Tara Kartha, Director, National Security Council Secretariat (NSCS). 8. It is noteworthy that, despite multiple reminders, the Appellant refused to participate in the stated proceedings before the Committee and cited the following reasons for such refusal: (i) Need to constitute the Departmental Committee as per Vishakha guidelines; and, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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). Notably, this press note dated 19.8.2008 has been quashed by this Court in W.P. (Crl.) No. 24 of 2012, vide order dated 15.12.2014, as being in gross violation of human rights and individual dignity of the Appellant. The relevant part of the order notes thus: On proper appreciation of the aforesaid, it can definitely be stated that the foundation and the fulcrum on which the press note was issued has no basis. The press note, as we perceive, creates a concavity in the reputation of a citizen and indubitably against an officer whatever rank he/she holds. There was no reason to issue a press note. We can understand that the press note is issued that a crime has been registered against the person concerned as it is a cognizable crime but we cannot appre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules') vide order dated 10.5.2010 with effect from the date of retirement till regularization of her period of unauthorized absence from 29.8.2008 to 26.11.2009. The provisional pension was authorized on the last pay drawn by her on 28.8.2008. Thereafter, the period of unauthorized absence was regularized by the High Court vide order dated 21.10.2013 passed in W.P. (C) No. 3704 of 2012, as upheld by this Court in S.L.P. (Civil) C.C. No. 6762 of 2014, thereby entitling the Appellant to complete pension benefits with effect from 19.12.2009. 15. Be that as it may, the Tribunal held that the order of compulsory retirement was violative of Articles 14 and 311 of the Constitution and fell short of declaring Rule 135 as unconstitutional. It was content with the following words: 20. .....A subsidiary rule, we feel, is insufficient to annihilate the guaranteed rights as are available to an officer, who had put in considerable years of service. As we have found that the Applicant has been denied protection of law, which is a fundamental right Under Article 14 of the Constitution, it may not be necessary for us to further deliberate on the constitutionality of Rule 135 (1)(a) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. More so uncertain and undefined words deployed inevitably lead citizens to steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked. 19. In further submissions, the Appellant has also grounded her arguments against the constitutionality of the Rule on the basis of the Tribunal's observation that the Rule does not provide for its publication nor satisfies the cardinal requirement of fair play of prior notice about the existence of such Rules to the employees serving in the Organisation. It is urged that the Appellant was not aware of the existence of the Rule and even after procuring the copy of the rule, she was required to keep it as a secret. 20. The Respondents, on the other hand, have submitted that Article 311 of the Constitution has no application to a case of compulsory or premature retirement, as Article 311 is confined to cases involving dismissal, removal or reduction in rank. Stated in a nutshell, the Respondents contend that Article 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. There is no denying the fact that in all organizations and more so in government organizations, there is good deal of dead wood, it is in public interest to chop off the same. Fundamental Rule 56(j) holds the balance between the rights of the individual government servant and the interests of the public. While a minimum service is guaranteed to the government servant, the government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest. Analysis of submissions and conclusions in Impugned Judgment 22. In the impugned judgment, the argument against non-publication of Rule 135 of the 1975 Rules and subsequent inability of the Appellant to acquire notice thereof was rejected in the following words: 61. It is undoubtedly true that there are some authorities (B.K. Srinivasan and Anr. v. Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re country or a whole State. It includes security of a part of the State. It also cannot be confined to an armed rebellion or revolt. There are various ways in which security of the State can be affected. It can be affected by State secrets or information relating to defence production or similar matters being passed on to other countries, whether inimical or not to our country, or by secret links with terrorists. It is difficult to enumerate various ways in which security of the State can be affected. The way in which security of the State is affected may be either open or clandestine..... 24. The Court reiterated that R AW is an organization engaged in intelligence activities that concern security interests of the nation and thus, the width of the expression security of the State ought to be perceived in light of the specific activities undertaken by the Organisation. In this context, the impugned judgment, in para 65, records thus: 65. The Applicant's arguments are that the expression security is a vague term and does not have any meaning. It is argued by her that the use of the term without the use of any other expression renders it vague and capable of misuse. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecurity or to R AW. However, the disclosure of identity through any incident, of its officers who are involved in sensitive functions or operations, in any manner whatsoever, can lead to compromise of the security of R AW or the state. One of the ways this can happen is that if the truth of such an individual is known, he or she can be open to scrutiny by forces hostile and on occasions even subjected to threats which might lead to disclosures-voluntary or otherwise-with regard to the secrets of the organization which can be a threat to the security of the country. Therefore, the use of the expressions security and exposure , are not vague or arbitrary but, having regard to the context and the underlying objectives of the R AW, mean security of the State or security of R AW and exposure of the identity of the concerned individual. Determination of the challenge to constitutionality 26. 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 rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not expedient to hold such inquiry. (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in Clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final. 28. For further analysis, it is also apposite to advert to the text of Rule 135 of the 1975 Rules, which reads as follows: 135. Terminal benefits on compulsory retirement: (1) 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. (2) On the retirement of an officer under Sub-rule (1), he may be granted (i) pension based on the emoluments which he would have drawn had he remained in service until the normal age of superannuation and earned promotion, other than promotion by selection, due to him under these Rules or the maximum emoluments he would have drawn in the grade in which he was permanent or re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... real criterion for deciding whether an order terminating the services of a servant is one of dismissal or removal is to ascertain whether it involves any loss of benefits previously earned. Applying this test, an order Under Rule 165-A cannot be held to be one of dismissal or removal, as it does not entail forfeiture of the proportionate pension due for past services. 30. The question is: whether the action taken Under Rule 135 of the 1975 Rules 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. In the present case, the Appellant has been subjected to the order of compulsory retirement simpliciter, and no action in the nature of dismissal, removal or reduction in rank, as envisaged Under Article 311, has been taken against the Appellant. In Saubhagchand M. Doshi (supra), the distinction between an order of dismissal and that of compulsory retirement was expounded in the following terms: 9. .....Under the rules, an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to address the challenge against it Under Article 311 read with Article 14. 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. Sub-rule (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the second proposition in Shyam Lal (supra) which looks down upon any loss of profits in a non-stigmatic order of compulsory retirement. Succinctly put, a compulsory retirement without anything more does not attract Article 311(2). We may usefully refer to Dalip Singh v. State of Punjab AIR 1960 SC 1305 and Union of India and Ors. v. Dulal Dutt (1993) 2 SCC 179 to bring home the stated position of law. 35. To concretize further, we now advert to the third limb of the dictum in Shyam Lal (supra) that necessitates the absence of any element of punishment in a just order of compulsory retirement. In order to undertake this examination, we deem it crucial to expound the true scheme and effect of Rules governing the employees of the Organisation by making a brief reference to the decision in Satyavir Singh and Ors. v. Union of India and Ors. (1985) 4 SCC 252, wherein this Court upheld the dismissal of two employees of the Organisation on the grounds of misconduct, indiscipline, intimidation and insubordination Under Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short CCS (CCA) Rules ), without holding any inquiry Under Article 311 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of this Rule to deputationists is discriminatory and falls foul of Article 14. The impugned judgment rejected this submission and observed thus: 67. ....A deputationist's services stand on a footing unlike that of the official in a department, who is bound by its terms and conditions. In case a deputationist-hypothetically-is exposed or exposes himself and that constitutes a security threat, surely the Central Government can resort to other mechanisms: including compulsory retirement (provided the employee fulfils the conditions Under Rule 56(j); it may also resort-if the employee is culpable for the incident and the facts so warrant, invocation of Article 311(2)(c) and summary dismissal or penalty of similar nature. The possibility of other officers not being governed by the rule, or that in other cases it was not invoked, therefore, cannot be a ground to hold it arbitrary or invalid. 39. A deputationist is an employee who has been assigned to another department from his/her parent department. The law regarding employees on deputation is well settled. As regards the matter of disciplinary control, this Court, in State of U.P. and Ors. v. Ram Naresh Lal (1970) 3 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mployee unemployable due to reasons of security Under Rule 135, is both a pre-condition and safeguard, and incorporates within its fold the subjective satisfaction of the competent authority in that regard. In order to reach its own satisfaction, the authority is free to seek information from its own sources. Thus, 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. 41. Reverting to the challenge in reference to Article 309, suffice it to observe that the 1975 Rules fall under the condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he safeguards Under Article 311. It has also been observed in State of U.P. and Ors. v. Babu Ram Upadhya AIR 1961 SC 751 that the validity of a Rule shall be hit by Article 311 only if it seeks to affect the protection offered by Article 311, and not otherwise as in the present case. 44. Let us now address the next ground of challenge against Rule 135 of the 1975 Rules, that is-the expressions security and exposure used in Rule 135 are of wide import and their usage attracts the vice of vagueness and arbitrariness to the Rule. The Appellant has relied upon the prior-quoted extract of Kartar Singh (supra) to set up this challenge on the ground of vagueness. 45. It is a settled principle of interpretation of statutes that the words used in a statute are to be understood in the light of that particular statute and not in isolation thereto. The expression used in Rule 135 is security , as distinguished from the more commonly used expression security of the State used in Article 311. This deliberate widening of the expression by the enacting body points towards the inclusive intent behind the expression. The word security emanates from the word secure which, as per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the order of the High Court as regards the constitutionality of Rule 135, we are of the view that the meaning placed by the High Court on the expression security , in the impugned judgment, is of a wide import. As regards what would constitute a threat to security, so as to invoke Rule 135, the impugned judgment, in para 65, notes thus: ..... Therefore, if in a given case, any member of R AW indulges in behaviour that is likely to prejudice its overall morale or lead to dissatisfaction, it may well constitute a threat to its security. 47. We hold that this observation does not guide us towards the true scope of the usage of the expression reasons of security or what would constitute a security threat and opens the contours of Rule 135 to uncontemplated areas. Thus, this observation shall stand effaced in light of the interpretation of Rule 135 by us hitherto and shall not be operative for any precedentiary purpose, or otherwise. Legality of the order of compulsory retirement 48. Having answered the challenge to the constitutional validity of Rule 135 in negative and settling the question of existence of power to retire compulsorily, we embark upon the determinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e claim of mala fides by asserting that a decision of compulsory retirement has to be made under a detailed formal procedure and in light of the past performance records. 51. 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. This legal position is consistently expounded by this Court in S. Partap Singh v. State of Punjab AIR 1964 SC 72, Express ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iry was conducted by Shri A.K. Arni and Appellant refused to participate in the inquiry upon intimation. 19.08.2008* Information of Preliminary Inquiry conveyed to Appellant, thereby leading to the incident at PMO which led to wide coverage in national and international media. 10.09.2008-11.09.2008 Preliminary Inquiry report concluded that most of the charges against the Appellant appear to be substantiated and report was submitted J.S. (SA) on 10.09.2008, who further submitted it to Secretary (R) on 11.09.2008. 22.09.2008** Proposal for compulsory retirement of Appellant made by Secretary (R). 04.04.2009 Appellant wrote letter to Shri Ajit Seth, Secretary (PG Coord) regarding her apprehension to be retired without inquiry Under Article 311. 17.04.2009* Incident of shouting, removal of clothes etc. at the office of Jt. Secretary (Trg.). 18.04.2009** Proposal for invoking Rule 135 against Appellant by Shri K.S. Achar, Director in PMO. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Respondents into the question of compulsory retirement. It is settled law that the scope of judicial review is very limited in cases of compulsory retirement and is permissible on the limited grounds such as non-application of mind or mala fides. Regard can be had to Pyare Mohan Lal v. State of Jharkhand and Ors. (2010) 10 SCC 693. The above-quoted set of events are so eloquent that it leaves us with no other conclusion but to hold that the action of compulsory retirement was the just option. Assuming that some other option was also possible, it would not follow that the decision of the competent authority to compulsorily retire the Appellant was driven by extraneous, malicious, perverse, unreasonable or arbitrary considerations. The pre-requisite of due application of mind seems to be fulfilled as the decision has been reached in the aftermath of a series of discussions, exchanges and consultations between the Organisation and the PMO over the course of 15 months from 22.9.2008 to 18.12.2009. 55. Moreover, the preliminary inquiry conducted against the Appellant, commencing 8.8.2008, forms a crucial building block in the chain of events and calls for our attention. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expectation that actions emerging out of such functionaries are driven by bona fide considerations of public interest and constitutional propriety. Constitutional trust, as a concept of constitutional application, has been duly accepted by this Court in a string of judgments. In Manoj Narula v. Union of India (2014) 9 SCC 1, a five-Judge bench of this Court observed thus: 92. Centuries back what Edmund Burke had said needs to be recapitulated: All persons possessing a position of power ought to be strongly and awfully impressed with an idea that they act in trust and are to account for their conduct in that trust to the one great Master, Author and Founder of Society. 93. This Court, in Delhi Laws Act, 1912, In re, AIR 1951 SC 332, opined that the doctrine of constitutional trust is applicable to our Constitution since it lays the foundation of representative democracy. The Court further ruled that accordingly, the Legislature cannot be permitted to abdicate its primary duty, viz. to determine what the law shall be. Though it was stated in the context of exercise of legislative power, yet the same has signification in the present context, for in a representative democracy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public interest. The Rule also provides for a prior notice of at least three months to the outgoing employee. Rule 135 of the 1975 Rules, on the other hand, deviates from this dispensation. It is a special provision dealing with clan of intelligence officers in the Organisation in question. The fundamental distinction between FR 56(j) and Rule 135 lies in the usage of expressions public interest and security respectively. The concern of security finds special place in an exclusive provision that gets triggered for reasons of security. On the other hand, FR 56(j) is in reference to public interest generally. Framed in 1975, during the existence of FR 56(j), Rule 135 was carved out as a special provision. It is pertinent to note that Rule 135 recognises the presence of a vested and inherent right in the government to compulsorily retire an employee and explicitly specifies certain exclusive grounds for taking such action. Therefore, Rule 135 presents a deliberate deviation from FR 56(j) and covers special circumstances of 'exposure' or 'unemployability for reasons of security' as pre-requisites for its invocation. Indubitably, Rule 135 is not exhaustive of all ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power. A priori, a mechanical extension of the principles of natural justice would be against the proprieties of justice. This has been restated in the post Maneka Gandhi v. Union of India and Anr. (1978) 1 SCC 248 era in a series of judgments. This Court, in Managing Director, ECIL, Hyderabad and Ors. v. B. Karunakar and Ors. (1993) 4 SCC 727, summarised the post Maneka (supra) position thus: 20. The origins of the law can also be traced to the principles of natural justice, as developed in the following cases: In A.K. Kraipak v. Union of India, (1969) 2 SCC 262, it was held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criptures. 22. In Institute of Chartered Accountants of India v. L.K. Ratna, (1986) 4 SCC 537, Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 (Bhopal Gas Leak Disaster Case) and C.B. Gautam v. Union of India, (1993) 1 SCC 78, the doctrine that the principles of natural justice must be applied in the unoccupied interstices of the statute unless there is a clear mandate to the contrary, is reiterated. (emphasis supplied) 61. Rule 135 of the 1975 Rules operates in situations of exposure of an intelligence officer and the revelation of identity of such intelligence officer attracts immense adverse exposure to the Organisation and could legitimately result into an embarrassing security breach with long lasting impacts on the integrity of the Organisation in question, if not the country. The circumstances in which Rule 135 operates incorporate a sense of urgency. Indisputably, a continued presence of an exposed officer in the Organisation in the name of participation in inquiry could seriously jeopardize the institutional and national security interests. We deem it essential to highlight that such a consequence could ensue even without the knowledge or connivance of the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned officer in such inquiry is neither mandated by the jurisprudential essence of compulsory retirement or the rigid observance of the principles of natural justice. Such principles cannot be offered a free ride at the peril of larger public interests bordering on reasons of security of the Organisation or the State. Despite being harsh at times, unambiguous provisions of the Rule under consideration offer no space for infusing any element of judicial creativity against the legislative intent [see State of Rajasthan v. Leela Jain and Ors. AIR 1965 SC 1296 and Sri Nasiruddin v. State Transport Appellate Tribunal AIR 1976 SC 331]. We hold that Rule 135 of the 1975 Rules, excludes any requirement of prior notice or abiding by principles of natural justice. Re: Pension claim 63. The Appellant had assailed the retirement order before the High Court in reference to the Pension Rules, on diverse counts. However, by this appeal, the Appellant has raised the following question only: (b) Whether the President of India can delegate his power, Under Rule 9(1) of the CCS (Pension) Rules, 1972, to modify pension of an employee to any other authority? It is evident that the Presiden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that the power to withhold or withdraw pension of an officer is circumscribed by Rule 9. Indeed, it is settled law that the exercise of power of modification of pension Under Rule 9 is subject to the finding of misconduct or negligence against the employee, reached after conducting departmental or judicial proceedings. This Court in D.V. Kapoor v. Union of India and Ors. (1990) 4 SCC 314, had observed thus: 8. It is seen that the President has reserved to himself the right to withhold pension in whole or in part therefore whether permanently or for a specified period or he can recover from pension of the whole or part of any pecuniary loss caused by the Government employee to the Government subject to the minimum. The condition precedent is that in any departmental enquiry or the judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service of the original or on re-employment. The condition precedent thereto is that there should be a finding that the delinquent is guilty of grave misconduct or negligence in the discharge of public duty in office, as defined in Rule 8(5), explanation (b) which is an inclusive definition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment that it acts in deviation from another Rule albeit concerning the same subject of pension. As aforementioned, in cases where the action taken is of compulsory retirement, in exercise of power Under Rule 135, there is no contemplation of any finding of misconduct or negligence against the employee as such. It is not preceded by departmental or judicial proceedings. Rule 135 operates as a self-contained code covering certain aspects of termination and post-termination benefits in an exclusive manner as a special dispensation and is not controlled by any other Rule much less general provisions. There is no overlapping between Rule 135 and Rule 9. 69. As regards the grant of pension to Appellant, the Appellant shall be entitled to all the benefits under Clauses (2) - (4) of Rule 135 in their true letter and spirit. The impugned judgment has directed the Respondents to secure various benefits to the Appellant, including the benefit of promotion and fixation of date of pension as per the date of notional superannuation in 2023. That direction has not been challenged before us by the Respondents. The pension of an employee retired Under Rule 135 is to be determined in accordance w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned by a Court of law in the garb of exercising power of judicial review. To do so without any legal basis, could lead to abhorrent consequences and result into a spiral of issues, including putting to jeopardy the principle of conclusivity of the decision. Even if we assume that the Court intended it as an equitable measure, we are of the view that the same could have been achieved without postponing the date of retirement. Sub-rule (2) of Rule 135 of the 1975 Rules categorically provides for the calculation of pension as per the date of notional superannuation as well as for the earned promotions. However, despite our disapproval for this approach, in the peculiar facts of this case, we stop short of modifying the High Court's order as regards postponement of date of retirement as the same has not been assailed by the Respondents and instead has been complied with sans any demur. 72. We have been informed by the Respondents that in lieu of the order of postponement of retirement, consequential benefits have already been transferred to the Appellant. We, therefore, make it clear that our observations as regards the order of postponement shall not affect the benefits alread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the Rules and a Government servant coming within those Rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh, (1976) 2 SCC 1. 76. Indeed, Clauses (2) and (3) of Rule 135 of the 1975 Rules, posit that the grant of pension to a compulsorily retired employee under this Rule is preceded by expression may . That gives an impression that the grant of pension to the outgoing employee is subject to the discretion of the competent authority. The setting in which expression may has been placed in this provision, it must be read as shall . Lest, it could be argued that a compulsorily retired officer Under Rule 135 can be denuded o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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, as reiterated by this Court in D.K. Basu v. State of West Bengal and Ors. (2015) 8 SCC 744 13. A long line of decisions of this Court starting with Sardar Govind Rao v. State of Madhya Pradesh, AIR 1965 SC 1222 have followed the above line of reasoning and authoritatively held that the use of the words 'may' or 'shall' by themselves does not necessarily suggest that one is directory and the other mandatory, but, the context in which the said expressions have been used as also the scheme and the purpose underlying the legislation will determine whether the legislative intent really was to simply confer the power or such conferment was accompanied by the duty to exercise the same. 14. In The Official Liquidator v. Dharti Dhan (P) Ltd., (1977) 2 SCC 166, this Court summed up the legal position thus: 7. In fact, it is quite accurate to say that the word 'may' by itself, acquires the meaning' of 'must' or 'shall' sometimes. This word however, always signifies a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingh and Ors. v. State (Delhi Administration) (1988) 3 SCC 609. 80. Reverting to the next aspect as to whether the officers compulsorily retired Under Rule 135 must be furnished with the copy of the stated Rules, we are of the considered view that the officers, whose services are being terminated Under Rule 135, 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 there under in accordance with the law. Criminal Appeal No. 413/2020 @ SLP (Crl.) No. 10668 of 2015 81. Leave granted. 82. By this appeal, the Appellant has assailed the final judgment and order dated 2.11.2015 passed by the High Court in Crl.M.C. No. 4497 of 2015, whereby the order dated 10.9.2015 passed by the Additional Sessions Judge, Patiala House Courts, New Delhi in C.R. No. 18/2015 and order dated 28.4.2015 passed by Metropolitan Magistrate, Patiala House Courts, New Delhi in C.C. No. 475/1/13, refusing to summon the Respondents as Accused in the absence of sanction Under Section 197 of the Code of Criminal Procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te a disturbed state of mind. As such counselling may benefit her. 14. WHEREAS, apparently, these observations were made by the Committee, in view of the fact, that the Applicant-Ms. Nisha Priya Bhatia had threatened to take her life. It was in this background, that all the seven members of the Committee had unanimously observed, that her behaviour indicates a disturbed state of mind and as such counselling may benefit her. Therefore, no malafides can be attributed to Smt. Shashi Prabha and Smt. Anjali Pandey, who were the two signatories along with five other members of the Committee, who had signed the report dated 19th May, 2008. In view of this, no case Under Section 167 or Section 44 of Indian Penal Code is made out against Smt. Shashi Prabha and Smt. Anjali Pandey. xxx xxx xxx 19. NOW, THEREFORE the Competent Authority after thoroughly examining the relevant record and perusal of the complaint dated 10.02.2010 and also Criminal Complaint alongwith the annexures filed in the Court of Chief Metropolitan Magistrate, District Courts, Dwarka, Under Section 200 Code of Criminal Procedure and Sections 167 44 Indian Penal Code, is satisfied that no case is made out to acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 89. The Petitioner contends that these Rules do not provide for sufficient participation to the victim of sexual harassment during the inquiry into her complaint. It is further contended that the charged officer has wide rights of participation in the inquiry process, whereas the victim/complainant has no such corresponding rights. It is urged that these Rules do not oblige the Complaints Committee to take into account her documents, her witnesses or her objections against the composition of the Committee, thereby leading to unfairness and denial of natural justice. 90. It is further contended by the Petitioner that the Rules do not provide for the supply of the report of Complaints Committee to the victim/complainant and O.M. dated 2.8.2016 also falls short of remedying this lacunae as it comes into operation only if the Complaints Committee does not recommend any action against the charged officer, thereby leaving out situations in which an action has been recommended and is found to be inadequate. Furthermore, it is averred that as per O.M. dated 2.8.2016, the victim/complainant is entitled to such report only after it has been placed before the Disciplinary Authority and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine with the contention raised by the Petitioner and needs to be examined as such. 93. The inquiry procedure adopted to deal with the complaints of sexual harassment at workplace has assumed a sacrosanct position in law and cannot be undermined under any pretext whatsoever. This Court, in a catena of pronouncements, has made it clear that fairness and reasonableness are inalienable parts of any procedure established by law. In the present case, however, we are inclined to observe that the relief claimed by the Petitioner is ill advised. 94. The Petitioner has called upon us to issue directions to the Respondents (Department of Personnel and Training) for making additions in the CCS (CCA) Rules on certain counts. Strictly speaking, the law as regards the contours of powers to be exercised by the Court vis-a-vis the law/rule making authorities, is well settled and is premised on the tenets of judicial restraint and separation of powers. In other words, 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. In Divisional Manager, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lfare Assn. v. Union of India, (1989) 4 SCC 187 it has been held that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of a subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which it has been empowered to do under the delegated legislative authority. .... 95. Be that as it may, in our opinion, the Petitioner seems to have confused two separate inquiries conducted under two separate dispensations as one cohesive process. The legal machinery to deal with the complaints of sexual harassment at workplace is well delineated by the enactment of The Sexual Harassment of Women at Workplace Act, 2013 (hereinafter 2013 Act ) and the Rules framed there under. There can be no departure whatsoever from the procedure prescribed under the 2013 Act and Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (for short, the 2013 Rules ), either in matters of complaint or of inquiry there under. The sanctity of such procedure stands undisputed. The inquiry under the 2013 Act is a separate i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this petition have no bearing on the case in hand. Hence, the examination of the argument under consideration at the instance of the Petitioner would be nothing but a hypothetical or an academic exercise in futility. 98. In light of the above, the stated relief claimed in this writ petition, we hold is devoid of merit. Constitutional compensation for violation of right to life 99. We shall now consider the prayer for grant of compensation for the violation of Petitioner's fundamental rights, in light of the factual matrix of the case. Indeed, diverse allegations and counter-allegations have been made in the course of submissions from both the sides, we shall restrict ourselves to the established set of facts for consideration of this prayer. Admittedly, the Petitioner filed the complaint of sexual harassment on 7.8.2007. After entrusting the inquiry of the complaint to the Committee headed by Ms. Shashi Prabha, the Committee was found to be incompetent to enquire against one of the charged officers and the inquiry against that officer was finally entrusted to the Committee headed by Ms. Rathi Vinay Jha. Be it noted that this was done only after the incident at the PM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 102. 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 machiner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. Be that as it may, the compensation amount specified hereinabove be paid to the Petitioner directly or be deposited in the Registry of this Court and in either case, within six weeks from today. Writ Petition (Criminal) No. 1 of 2016 105. The Petitioner has filed this writ petition praying for the issuance of a writ of mandamus directing the Respondents to pay for the higher education of her daughter as a measure of compensation for the Petitioner's sexual harassment, various criminal offences under the Indian Penal Code committed against her and consequent violation of her fundamental rights Under Articles 14, 15, 21 and 22 of the Constitution. The main prayer in the petition before us reads thus: Issue a writ of mandamus/or any other appropriate writ/order/directions that the Respondents respond to Petitioner's letter dtd. 11.08.15 and pay for higher education of Petitioner's younger daughter as compensation fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have provided for compensation in that regard. However, no compensation can be given to the Petitioner in reference to the cause stated in the writ petition under consideration. 109. The Petitioner, relying upon the order of the High Court in W.P. (C) 3704 of 2012, has contended that various Court orders on record prove the commission of criminal intimidation and wrongful restraint against the Petitioner by the officers of the Respondents. We outrightly reject this inference purportedly deduced from the stated order. The scope of adjudication before the High Court in the aforementioned writ petition was limited to the regularisation of the period of absence and grant of consequent benefits. Mere recording of observations revolving around procedural improprieties in following Vishaka (supra) Guidelines, consequent transfer of the Petitioner and various cross allegations between the parties, in no manner is an adjudication on the criminal liability of the officers. In fact, the question of criminal liability of the officers has not been adjudicated in any preceding case so far. Thus, no additional compensation under the pretext of the allegations under consideration can be grante ..... X X X X Extracts X X X X X X X X Extracts X X X X
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