Compulsory Retirement – Article 311 and its interplay

By- Ms. Pallavi Pratap (Advocate on Record SC and Member of Advisory Board, SocioLegalLiterary)

The recent judgment of the Hon’ble Supreme Court in Nisha Priya Bhatia vs. UOI & Anr. Settled the position of law in terms of compulsory retirement and whether it can be protected under Article 311. 

 The Central Administrative Tribunal (CAT) had held that the compulsory retirement order was to be quashed and the appellant was directed to be reinstated back in service.  However, the Bench comprising of Justice Ravinder Bhatt and Justice Sanjeev Sachdeva of the Delhi High Court upheld the order of compulsory retirement of the appellant. The appellant approached Supreme Court against the said order and Justice A. M. Khanwilkar confirmed the decision of the High Court holding compulsory retirement of the appellant as valid and legal. 

 However, the challenge with respect to Rule 135 of the 1975 Service Rules was held to be valid and did not suffer from vice of unconstitutionality. More importantly, the direction of high Court regarding grant of pension to be computed from date of notional superannuation was upheld and not to be calculated from date of actual compulsory retirement. A compensation of Rs. 100,000/- was directed to be given to appellant by Union of India for violation of her fundamental rights to life and dignity as a result of improper handling of complaint of sexual harassment. 

 Brief facts of the case:

The Appellant joined the Research & Analysis Wing (RAW) (hereinafter referred to as ‘Department’) in the year 1988. In the year 2007, the appellant was posted in Head Quarters in Delhi, she was to interact with Shri Ashok Chaturvedi and Shri Sunil Uke, (hereinafter referred to as ‘charged officers’) who were working in various capacities in the Department.  In August 2007, the appellant filed complaint of harassment against the charged officers alleging that she was asked to join sex racket running inside the Organization for securing quicker promotions and upon refusal, she will be subjected to persecution. 

 The Department responded to allegations of sexual harassment after a gap of almost three months and constituted Complaints Committee in accordance with Vishakha[1]guidelines. The complaint committee did not have a ‘third party as representative of NGO or other body familiar with issue of sexual harassment’ as given in Vishakha guideline. Therefore, the Committee was re-constituted with an additional member. However, the appellant refused to participate in the proceedings on two grounds viz. (i) Re-constitute Departmental Committee as per Vishakha guideline and, (ii) The committeehad no mandate to proceed with Shri Ashok Chaturvedi as Chairperson of the Committee, was not senior enough to inquire into allegations against him.

 The ex-parte report of the Departmental Complaints Committee concluded that no allegations of sexual harassment could be proved against Shri Sunil Uke. This report was followed by ‘widely reported’ incident at Prime Minister’s Office where the appellant attempted to commit suicide in August 2008. As a result of this incident, the name and designation of the appellant was reported in the media. This resulted in a second complaint committee being constituted under a retired IAS officer which was to give report on allegations pertaining to whether Vishakha guidelines were followed by Department upon receipt of the complaint and secondly, upon allegations pertaining to actual acts falling within the ambit of sexual harassment. The Committee concluded enquiry finding no case of sexual harassment but made some crucial observations.

 In light of the media attention, the appellant was declared ‘exposed’ leading the respondents to declare the appellants as unemployable considering the Department worked on basis of confidentiality and secrecy. An order of compulsory retirement was passed under Rule 135 of the 1975 Service Rules of the Department. The Central Administrative Tribunal (CAT) held that the order of compulsory retirement was violative of Article 14 and 311 of Constitution and fell short of declaring Rule 135 as unconstitutional. 

 Submissions of the Counsels:

 The submissions of the appellant was that Article 311 of Constitution dealt with, ‘dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or the State.’  and Rule 135 was in direct contravention of Article 311 of the constitution. It has also been stated that non-following of the procedural safeguards prescribed under Article 311 violates equal protection of law as enshrined in Article 14. Along with this argument, it was also stated that Article 309 of Constitution couldn’t save Rule 135 since Article 309 covers separate field of recruitment and conditions of service of public servants. Additionally, it was stated that Rule 135 suffered from vice of vagueness. The appellant placed reliance on Kartar Singh vs. State  of Punjab. [2]as, ‘It is basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined… It is insisted or emphasized that  laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.’ It was submitted by the appellant that the employees were not informed about the existence of such Rules serving the department. 

 As for the submissions of the Respondents, Article 311 has no application in case of compulsory premature retirement as Art. 311 is only confined to cases involving dismissal, removal or reduction in rank which means that Article 311 can be attracted only in cases where termination is a form of punishment. Further, it was submitted that power under Rule 135 to retire compulsorily flows from proviso of Article 309 of constitution dealing with conditions of service and Article 310 dealing with doctrine of pleasure.  It was further submitted that Rule 135, being a provision for compulsory retirement, does not involved any penal consequence as is the case of Fundamental Rule 56(j). Reliance was placed on Union of India vs. Col. J.N. Sinha & Anr.[3]

‘Compulsory retirement involves no civil consequences. The aforementioned rule 56(j) is not intended for taking any penal action against the government servants. That rule merely embodies one of the facets of the pleasure doctrine embodied in Article 310 of the Constitution.’

Analysis of the judgment:

1. Non-publication of Rule 135 of 1975 Rules:

 The finding of the High Court was affirmed on this point whereby it was held that the Appellant was aware of the said rules and therefore, did not agitate the same before CAT but took it for the first time before the High Court. 

 2. Challenge to constitutional validity of Rule 135:

The finding of the High Court on this was that R&AW is engaged in intelligence activities that concern security interests of nation and expression ‘security of the state’ ought to be perceived in that light. Moving to the validity of Rule 135, Article 311 has been discussed with respect to the notion that any dismissal, removal or reduction shall be preceded by inquiry, coupled with an opportunity of being heard and making representation against such decision. Thus principle of natural justice as implicit under Article 14 is invoked and in the absence of the procedure laid in Article 311, the employee may then suffer from vice of arbitrariness and deprivation of equal protection of law. 

 The Apex Court found it imperative that the action contemplated against the public servant must assume character of ‘punishment’ in order to attract safeguards under Article 311. Reliance was placed on State of Bombay vs. Saubhagchand M. Doshi[4],

’10. Now, the policy underlying Article 311(2) is that when it is proposed to take action against a servant by way of punishment and that will entail forfeiture of benefits already earned by him, he should be heard and given an opportunity to show cause against the order. But that consideration can have no application where the order is not one of punishments and results in no loss of benefits already accrued, and in such a case, there is no reason why the terms of employment and the rules of service should not be given effect to.’

This led the Apex Court to answer the question as to whether the action taken under Rule 135 of 1975 Rules is in nature of penalty or a dismissal clothed as compulsory retirement so as to attract the safeguards under Article 311 of Constitution. Saubhagchand (supra) was relied upon which distinguished order of dismissal and that of compulsory retirement:

‘An order of retirement differs both from an order of dismissal and an order of removal, in that it is not a form of punishment prescribed by the rules, and involves no penal consequences, inasmuch as the person retired is entitled to pension proportionate to the period of service standing to his credit.’

Compulsorily retirement of an employee is derived from ‘doctrine of pleasure’, which springs from Article 310 of constitution. Rule 135 derives its power from Article 309 r/w Article 310 and therefore Rule 135 has been carved out as special provision and is premised on doctrine of necessity. Rule 135 (1) states that order of compulsorily retirement can be premised on exposure as an intelligence officer or becoming unemployable due to reasons of security or disability/ injuries received by officer in performance of his duties. The Apex Court laid emphasis on the key ingredients and the chronological and natural order of the expressions “exposure”, “un-employability” and “security”. 

 It was further observed by the Apex Court that the grounds referred in Rule 135 does not contemplate the action as a consequence of any fault or wrongful action on part of officer and unlike penal actions, do not stigmatize outgoing officer and there is no element of punishment. It is further stated that Rule 135 (2), (3) & (4) reinforce that appropriate benefits such as pension, gratuity, lump sum amount etc. should be granted to the employee subjected to compulsory retirement. Thus, the rule does not deprive the officer of any post-retiral benefits and attracts no stigma or any civil consequence to retired employee for future. It is noted however, that mere loss of some future career prospects per se is no ground for invalidating an order of compulsory retirement, as it may be an inevitable consequence of any such order.

 3. Rule 135 and impact on deputationist:

 It was argued by the appellant that non-application of this rule on deputationist falls foul of Article 14.  The Apex Court further held that a deputationist is an employee who has been assigned to another department from their parent department. In State of U.P.  Ors. vs. Ram Naresh Lal[5] it has been observed that a deputationist continues to be governed by rules of his/her parent department and is deemed under the disciplinary control of parent department unless absorbed permanently in transferee department. 

 In Kunal Nanda vs. Union of India & Anr.[6], the basic principle underlying deputation is that the person concerned can always and at any time be repatriated back to his parent department thus dissipating any adverse effect on R&AW including of reasons of security would be averted. Therefore, deputationist stands on an altogether different footing than a direct recruit of the Department. Therefore, it will not be violative of Article 14. 

 4. Rule 135 and non-prescription of inquiry:

The mere fact of non-prescription of inquiry under Rule 135 of 1975 Rules, before making order of compulsory retirement, does not go against constitutionality of Rule. Although the rule does not prohibit any inquiry and is in general line with the orders of compulsory retirement, the right of the outgoing employee to participate is not envisaged in law because the action is basis larger public interest and security of department and not on any form of culpability attributed to the employee. Therefore, the procedure underlying Rule 135 cannot be shackled by the rigidity of principles of natural justice in larger public interest in reference to the structure of department, this being a special Rule dealing with specified cases. 

 5. Conditions of service:

The 1975 Rules fall under ‘conditions of service’ governing the appellant and have been framed under proviso to Article 309 of Constitution. ‘Conditions of service’ encompasses wide range of conditions relating to salary, time period of payment, pay scales, dearness allowance, suspension and termination. A conjoint reading of Article 309 and 311 reveals that the former covers broad spectrum of conditions of service whereas the latter focuses on action of penal nature and an inquiry to be commenced against the derelict employee. It was also observed that the wide ground contemplated under Article 309 also takes in its sweep conditions regarding termination of service including compulsory retirement. However, unless it is a case of removal or dismissal clothed as compulsory retirement, the concept of compulsory retirement is non-penal measure. 

 6. “Security” and “Exposure”:

 It is settled principle of interpretation of statutes that words used in a statute are to be understood in light of that particular statute and not in isolation.  The term of ‘security’ as expressed in Rule 135 is distinguished from the expression ‘security of the state’ used in Article 311. It is understood that the exposure of an intelligence officer could be hazardous not only for Organization but also for the officer concerned. The expression ‘exposure’ refers to revelation of identity of an intelligence officer as such to the public, in a manner that it may render such officer unemployable for reasons of security.

 7. Rule 135 to be struck down on ground of vagueness:

Challenge to the rule could only be sustained if the Rule does not provide a person of ordinary intelligence with a reasonable opportunity to know scope of sphere in which the Rule would operate. It is observed in the judgment that a member working in organization would certainly be aware of transnational repercussions due to identify of an intelligence officer. Thus, there is no inherent vagueness or arbitrariness in usage of such expression and to attach vice of unconstitutionality to the Rule. 

A mala fide exercise of power is essentially a fraud on power. For an exercise of power to steer away from taint of mala fides, such power ought to be exercised within contours of statute/law bestowing such power. Since the appellant had not included the charged officers as party respondents nor were particulars placed on record, so as to allow them to put their position forward regarding filing of Counter Affidavit. 

 It is settled position of law that scope of judicial review is very limited in cases of compulsory retirement and is permissible on limited grounds such as non-application of mind or mala fides.

 The above discussion safely concludes that Rule 135 of 1975 Rules operate in the event of exposure of the officer and revelation of identity and demands a sense of urgency because continued presence of exposed officer can seriously jeopardize the institutional and national security interests. Further no stigma or fault is imputed upon such officer in any manner by mere factum of such exposure. It is further observed that rigid adherence of principles of natural justice will defeat object of carving out this special provisions.

 In the instant case, the order of compulsory retirement was preceded by preliminary inquiries. However, it is nowhere mandated that the concerned official’s participation is of essence under the jurisprudence of compulsory retirement or in the rigid observance of principles of natural justice. Therefore Rule 135 does not require prior notice or abiding by principles of natural justice.

[1] Vishaka & Ors. vs. State of Rajasthan & Ors. (1997) 6 SCC 241

[2] (1994) 3 SCC 569

[3] 1970 (2) SCC 458

[4] AIR 1957 SC 892

[5] (1970) 3 SCC 173

[6] (2000) 5 SCC 362

This article has been first published on Pratap and Pratap company official website.