New Delhi, this the 16th day of March, 2010
Hon ble Mr. Justice M. Ramachandran, Vice Chairman (J)
Hon ble Mr. N.D. Dayal, Member (A)
Nisha Priya Bhatia,
D/o Shri T.N. Bhatia,
R/o I-263, Naraina,
New Delhi-110028. Applicant.
(Applicant in person)
1. Secretary (PG& Coordination),
2. Secretary (R),
Research & Analysis Wing,
Room No.7, Bikaner House Annexe,
New Delhi-110011. Respondents.
(By Advocate Mr. T.C. Gupta)
O R D E R
M. Ramachandran, Vice Chairman (J).
Cabinet Secretariat of Govt. of India on 18.12.2009 had issued an order, released under the signature of Additional Secretary, whereby the applicant was informed that she stands compulsorily retired from service. This is under challenge. Applicant was working during the relevant time as a Director, in the Research & Analysis Wing (R&AW) of the Central Government. The order, inter alia, proclaimed the power of the Government, reserved under Rule 135 (1)(a) of the R&AW (Recruitment, Cadre & Service) Rules which authorized them to compulsorily retire any officer of the organization, on the ground of being exposed as an intelligence officer or his becoming unemployable in the Organization, for reasons of security. It had been disclosed that the competent authority was satisfied that the conditions for invoking provisions of Rule 135 in respect of the applicant existed and, therefore, invoking the authority supplied by the said Rule, she was, with immediate effect, being compulsorily retired.
2. According to the applicant, it was a thoroughly motivated step, actuated by spite as well as malafides, and issued in total negation of fair play. Her legal rights have been violated. Rule 135 (1) (a) of the R&AW (Recruitment, Cadre and Service) Rules did not authorize such arbitrary steps. In the Original Application, she has chartered the events and circumstances which, according to her, possibly might have led to the finale. On the other hand, the Government, however, had strongly contended that taking stock of the ill will that was uninterruptedly being precipitated, a bonafide decision, a authorized by the Rule had been taken. The subtle suggestion is that in fact Government was driven to the wall and forced to resort to extreme steps. What was paramount was the security of the country, and the order could neither have been characterized as punitive nor equated with a punishment. Bitter medicine indeed was required to be administered to get round chronic ill health.
3. The applicant had attempted to elucidate the background in which her relations with her superior officers turned sour. She also referred to the incidents which inflamed the situation, and according to her, these were the reasons which led to the order. We feel it may not be necessary for us to unduly travel to those regions but only reference may be made to the events. Applicant refers to her representations dated 26.10.2007 and 16.6.2008 on the subject of sexual exploitation of women employees in the R&AW and there she had lamented about the indifference and indeed involvement of the Secretary. She had therein adverted to the `prostitution rackets running from her office premises/safe houses through use of secret service funds . It is her case that her seniors wished her to be a part of these. Sly comments and indecent and objectionable suggestions had followed. The applicant had lodged complaints about sexual harassment, but it was attempted to be sidelined. Thereupon she had been targeted.
4. According to the applicant, she had been approaching the Supreme Court, High Court and Subordinate Courts. Some of the cases have been disposed of and a few are even now pending. It is asserted that her pursuit to get justice and to safeguard her self respect ultimately had led to an accusation that her presence in the organization was a threat to the security of the country. It was nothing but abuse of power. For this reason she has been eased out.
5. She argued that it may be altogether different that a person who is relieved by invoking powers under Rule 135 (1)(a) may be better off than persons who go out from other services in matters of receipt of pensionary benefits, but it is irrelevant. The termination continues to be stigmatic. Constitution of India being supreme, she could not have been denied protection of Constitution. The Subsidiary Rules if it attempted to override her fundamental rights, required to be ignored. The protection guaranteed to a civil servant by Article 311 could not have been set at naught by the exercise carried out.
6. The applicant, appearing in person referred to the prejudice that had befallen on herself and members of her family. She submitted that the social stigma cast on her was unbearable, and these threatened her very right to life. She had an outstanding record of service spanning about two decades, and even during the period of turbulence, her devotion to work was not doubted. The reporting officer had recorded her ACR as outstanding, but the reviewing authority had unjustly toned it down, to her detriment. That was understandable. The social ostricisation had the effect of wrecking her family. Overlooking all relevant aspects most whimsically a decision had been taken, behind her back. This was unethical, illegal and a colourable exercise of executive power.
7. Applicant also submitted that the order is vague as vagueness can be possible. Under Rule 135 (1)(a) of the Rules, compulsory retirement was authorized to be prescribed, for two reasons. One is on the ground of being exposed, as an intelligence officer. It can be resorted to also for reasons of security, namely, that a person could become unemployable in the organization. The two circumstances were altogether different. But the order was cryptic and did not pinpoint the real reasons for arriving at the decision. For the said reason alone it deserved to be quashed.
8. The further contention raised was about the attempt to preserve the secrecy in the transactions. When the rules were formulated in exercise of subsidiary legislative process, it could not be kept in lockers. The Rules were out of bound to the officers of the organization, as well as the general public. But nevertheless it had been invoked. She submits that reference to the rule in the impugned order was difficult for comprehension. Only when a request was made for clarification, extracts of Rule 135 (1)(a) had been forwarded in a letter with a warning that it was not expected of her to make it public. Applicant contended that when the policy of the Government was to introduce transparency in governance itself, the Respondents were behaving strangely. After the advent of the Right to Information Act, the officers of the R&AW were clearly in error in sticking on to draconian procedure even insisting that the service rules governing the officers will not be disclosed to them and were to be under lock and key. When the RTI Act admittedly had supremacy and was to operate notwithstanding any other orders, statues or rules, to continue with age old practices were obsessive. This required to be condemned. It is suggested that on a plea of secrecy, the top officers of the Department were reserving for themselves license to do whatever they felt convenient, splurging funds, as if answerable to none. In the course, they wrecked the career of honest and disciplined officers. She was an officer entitled to the protection of Article 311 of the Constitution. Her service was governed by the CCS (Classification, Control and Appeal) Rules. Therefore, the compulsory retirement as meted out was the height of arbitrariness. The Tribunal should not have, according to her, overlooked the plight of a civil servant and a citizen of the country, of being subjected to the abyss of misery, penury, and, simultaneously branding her as untouchable. According to applicant, the impugned order is immature, experimental and apparently taken all of a sudden, completely contrary to the stand earlier disclosed before the Tribunal. It had been undertaken that the applicant would be appropriately rehabilitated, once the turmoil settled. But they did not honour the commitment. Therefore, the prayer made is to set aside the order of compulsory retirement, with consequential reliefs to be extended.
9. Mr. T.C. Gupta, senior standing counsel, on the other hand, justified the order. He submitted that the Government had inherent powers to dispense with the services of a civil servant, when it came to their notice that the continuance of an officer would have been a threat to security of the State. It is further submitted that there is no issue of stigma as alleged, and the right of the Government to retire a person prematurely has been recognized. The impugned proceedings are really not justiciable. Article 311 (2) (c) of the Constitution recognizes this position and Rule 135 (1)(a) of R&AW (Recruitment, Cadre and Service) Rules has been drafted in line therewith. Supervening rights are enjoyed by the Government. Going by the text of the impugned order, Mr. Gupta would further contend that both the limbs of the order had been satisfied. It was a case where the applicant had exposed herself as an intelligence officer and by her conduct over a period she had made it clear that she has become unemployable in the organization. The association of a person with R&AW required to be maintained as a closely guarded secret, and once it came to be made public, the officer was to have no more place in the organization. It was on the mandate of the Rule. The functions expected to be discharged by an officer of R&AW were highly sensitive; the assignments were for safeguarding the security of the State, and once an officer throws caution to the winds, it was sufficient reason to cut off the relations with him. It may be unpleasant, but in the larger interests that could not have been avoided.
10. Counsel submits that the order could not have been characterized as a penalty. There was no liability, therefore, for the Government to comply with procedural formalities, prescribed for dealing with an ordinary case where the officer might have committed misconduct. No formal charge sheet was envisaged, nor a show cause notice or inquiry necessary. The Rule empowering the Government to take such actions also has not been specifically challenged.
11. Mr. Gupta also submitted that simultaneously Department were also not unmindful of the hardships. A person, who is retired, would be deemed as having continued to serve for his entire length of service upto the age of superannuation for purposes of pension. It would have been on the basis of the notional pay that would have been drawn by the officer, and also taking notice of the promotions that he would have normally received. The benefits of DCRG and family pension and a liberal grant could have been admissible to the individual so that he may not have any financial difficulties during post retirement life. Therefore, it could have been more reasonable to consider the provision as a tool to tackle the situation where an officer was not to be allowed to function any more for reasons of security of the Organization/Nation..
12. It was further submitted that the allegations of malafides or presence of extraneous reasons for prescribing retirement had, in fact, no basis whatsoever. Of course, the applicant had alleged about the sexual exploitation a couple of years back. With promptitude, the allegations had been inquired into by independent Inquiry Committees. Their report was that there was no subsistence in the allegations. Applicant never had been subjected to any sexual harassment while she was in the organization. On the other hand, there were a series of acts on her part which exposed her to be an officer of the intelligence organization and that too an unreliable person. There could not have been any compromise on the issue; viz that in the organization the officers and staff were to serve in absolute anonymity.
13. The counter reply also referred to certain incidents, Mr. Gupta suggesting that these may be indices of the mental frame of the applicant. The applicant had attempted to commit suicide in the office premises of the Prime Minister of India on 19.08.2008. At that time she had exposed herself to be an officer of he intelligence community. The above incident had received wide publicity in the print media. Her photographs were splashed and she had also given live interview presenting herself before the visual media.
14. The thrust of the Respondent, again was on the conduct of the employee forfeiting the confidence reposed in her. Another circumstance cited against the applicant was that while at the Supreme Court s corridor on 27.07.2009, she tore off her clothes and was at that time forcibly taken away by security personnel. On 26.11.2009, likewise, at the premises of the Central Administrative Tribunal, she had launched an abusive tirade against the officers and Government counsel present in the court room. On that day, she had tried to commit suicide by jumping from the second floor of the building. She was oblivious that she was not to expose herself, and was to avoid publicity. Dealing with the argument of the applicant that reports in respect of several other officers of the organization appeared routinely, in the newspapers, but no action was ever taken, Mr. Gupta submitted that the stray incidents of investigative journalism relating to certain R&AW officers were to be viewed from a different angle. According to him, definitely, the applicant could not have compared herself with such officers as he circumstances in which the exposure had happened were totally dissimilar. The overt indisciplined behaviour spanning over a period of two years was too serious to be overlooked. It was only after a mature reasoning, the competent authority, the Prime Minister, had decided to retire her from service. Counsel reiterated that the import of principles of natural justice, nor the constitutional protection or the protection of the service rules could not have been possible to be availed of as the facts of the case were unique, distinct, and a power had been exercised, with due deference to the rules and ultimately in the interest and security of the State. The application was to be treated as misconceived.
15. We had gone through the materials that had been placed by the parties. After hearing them, we are of the confirmed opinion that the applicant has been treated with a large doze of arbitrariness and her statutory as well as constitutional rights stand violated. Resort to Rule 135 (1)(a) could not have been supported. Resultantly, we are of the view that the applicant is entitled to the reliefs as might be admissible, namely, reinstatement. We may give below our reasons fro coming to the said conclusion.
16. The Research and Analysis Wing indeed is a specialized organization. An extraordinary amount of discipline is expected and required to be maintained by the inmates of the organization taking note of the nature of the multifarious pursuits and activities that might have been within their exclusive purview, especially pertaining to the security of the Nation. However, the rigidity and outlook should not be static for all time to come. It is expected that they update their approach in tune with change in times. The Right to Information Act has percolated to every nook and corner of Governmental activities now. It may be difficult to accept now a proposition that rigid secrecy should be there shrouded in all the matters and transactions pertaining to the special service. For instance, it is possible to assume from materials produced here that anonymity of personnel of R&AW is more a myth than reality. Documents have been provided by the applicant, being excerpts and newspaper clippings, giving details of its officers. We may even take notice of an article published in a widely circulated English Weekly, The Week, dated 07.03.2010. It is captioned as Raw Deal rather pregnant with meaning. Two paragraphs from the article could be extracted below:
The discontent started brewing when A.B. Mathur, a 1975-batch IPS officer from the Intelligence Bureau, was inducted into the agency on deputation and promoted as special secretary on August 6, 2009, superseding six additional secretaries P.N. Heblikar, C.K. Sinha, B.G. Rawal, A.K. Arni (1973 batch), and Sharad Kumar and Ashok Kapoor (1975 batch). Sources say the appointment committee of the Cabinet Secretariat promoted Mathur on the presumption that all senior officers had been promoted
Dissatisfaction among officers on promotions has always been an issue in secret service agencies. The most recent being K.C. Verma s appointment as secretary after Ashok Chaturvedi retired in Janaury 2009, even as three officers - P.V. Kumar (1971 batch direct recruit), Rana Bannerjee (1970 batch IAS officer) and S.K. Tripathi (1971 batch IPS officer) were in the queue.
17. It cannot at all be the case of the respondents that all of them are likely to be disassociated from the R&AW for this reason. The more acceptable version indeed comes from the pleadings in the OA, namely, that after about 10 to 12 years of assignments, around the world, any persons Indian or foreigner interested in the intelligence work come to know who is who, if they are worth their salt. Therefore, a summary discharge on such an empty plea really amounts to self denial. The provision may be remaining in the statute book rather as a relic of outdated theories.
18. The applicant is also justified in pointing out that the Right to Information Act has brought a sea change of the scene. Only such matters which are specifically classified are matters not to be disclosed on queries. Every other details, including the method of functioning of the Government, are required to be let known to public, if application forth comes. We are surprised to notice that the applicant was required to keep to herself the text of the Rule (Rule 135) when it had been supplied to her. This is the basic rule, which, according to the respondents, empowered them to take action against her. This is far too difficult to be countenanced. Transparency should have been there in respect of all other details as well as inputs, which led the competent authority to come to a decision that the applicant had to be separated from the organization. The discussions as above lead us to an assumption that the treatment meted out was arbitrary. Further, the expressions in the rule are loosely worded. `For reasons of Security is beyond definition, rather tricky, and capable of being put to surreptitious use.
19. Of course, in the counter reply filed, ancillary and supplemental circumstances which had prompted the competent authority to come to a decision for compulsorily retiring the applicant has been stated. But we find that it lacks conviction especially with reference to their chronological sequences. We are constrained to advert to a fact, which might be highly relevant in this context. As referred to earlier, the applicant had occasion to file applications before different fora. One such petition is OA 2687/2008. MA 1089/2009 had come to be filed by the applicant in the said OA challenging her new posting, on the ground that she is shifted to a cadre inferior to the executive cadre to which she actually belongs. While disposing of an interlocutory application (MA 1089/2009), on 26.11.2009, the submission of the learned counsel for the respondents was specifically noticed that there was no move to change the cadre of the applicant (on a regular basis). Reference had been made by the Bench at that time to the specific admission made in paragraph 4 of the affidavit on record. The Bench at that time had further observed (Paragraph 3 of the order) as following:
The learned counsel has further stated that the Respondents would consider re-posting the Applicant back to the Executive Cadre after six months when the tempers have cooled down.
Therefore, the MA filed was disposed of, the Bench observing as following:
..we are of the view that there is no need for us to interfere in the posting of the Applicant made by the Competent Authority.
But the impugned order has been issued a few days thereafter, namely, on 18.12.2009. It must be noticed that there was hardly time for making deliberations for coming to a conclusion that the applicant became unsuitable to continue in the organization. Even while making the submission before the Bench in MA 1089/2009, the incident as about the applicant exposing herself, during the year 2008-09, was very much there in the knowledge of the respondent. As on the hearing date at least there was no intention to retire her if we go by he submissions made before the Tribunal. But after making a concession before the judicial forum that appropriate posting will be given after few months, it cannot be recognized as in good taste to determine that she was fit only to go for a compulsory retirement. No reference to any fresh materials which had cropped up between the brief period viz the date of the order of this Tribunal in MA 1089/2009 and the date when she was axed is given. This, we feel, will be a very crucial circumstance which cannot but be noticed about the working of the mind of the decision makers. The unceremonious manner in which the order was served on the applicant speaks for itself. It could never have been a bonafide decision as is attempted to be made out for securing the ends for which it has been avowedly made. The respondent has not effectively met the contention of the applicant that it was not a bonafide exercise of power, to issue Annexure A-1. If that be so, it is arbitrariness personified, and for that reason it infringes the rights of the applicant envisaged under Part III of the Constitution of India.
20. Laws inconsistent with or in derogation of the fundamental rights are looked down upon by Article 13. May be the impugned order has been issued by the Executive Head of the State. But Rule 135 (1)(a) of the R&AW (Recruitment, Cadre & Service) Rule is too loosely worded. Even if we give a margin and take note the background of the legislation, arbitrariness in exercising powers under the rules cannot be ruled out. In spite of opportunity to defend, the Respondents have not come up with any definite or convincing reason for the turn of events as they appear. The Prime Minister obviously might have been acting on the basis of the reports presented before him. But it could have been only one sided, and reports have been prepared by persons who are not friendly with the applicant. Opportunity for hearing any other version has been virtually denied. In this context, the too short interval as between the date of the order of the Tribunal, referred to earlier and the date of the impugned proceedings becomes significant. Nothing has been stated as to why resort to Article 311 (c) has not been resorted to. If that was the case, the competent authority to pass an order would have been the President of India and none else. As a civil servant the applicant was entitled to the protection of Article 311 of the Constitution of India. This is because shortcomings of the applicant are shown as a reason for issuing the impugned order. 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 R&AW (RCS) Rules or declare that the rule invoked is void, since it operates to contravene clause (2) of Article 311.
21. We are also of the view that in case the applicant had acted in an indisciplined manner, it would have been proper to invoke the conduct rules (CCS (CCA) Rules) for taking action against her. Merely because in matters of pension, a person who is eased out by invoking Rule 135 (1)(a) of the R&AW (Recruitment, Cadre & Service) Rules, comes to be given a fair deal, it can be of no real or lasting solace to him. As pointed out by the applicant, the stigma would have hurt and pinned her down for the rest of her life. Even if it may be possible to contend that technically the officer is not discharged for unsuitability, the impact the order that would have made on her practical life could well be imagined. The respondents have in effect snapped her right to life, again guaranteed by Article 21 of the Constitution.
22. Fundamental rights are too precious for a person to lose and law is clear that even on his consent, the rights cannot be permitted to be surrendered. State is not, therefore, empowered to deny it on a plea that it may affect the security of the State, of course, unless specifically authorized by constitutional prescription. The circumstances highlighted by respondents for issuing Annexure A-1 order are hardly convincing. As we had referred to earlier, there is no casual connection with the mere exposure of identity of an officer and the security of the State as such. The international intercourse may be complex. By experience gained, code of conduct and norms should have been prescribed, discreet methods were required to be developed. Unaudited funds may be available for facilitating functioning of specialized organizations. It is to be ensured that they are put to appropriate use. In the present day world shift from information scarcity to surfeit has brought about changes in outlook all round. The technological advancement has been lading to information explosion. It is said that the decoding of human genome required collecting data relating to three billion base pairs, which work had taken about twelve years in the last decade, but now it could be done within less than a week. It is only an example. There can be nothing gained, by asking the officers of R&AW to keep to their shells. If espionage is a must, it needs to be carried out on the advice of the best brains. It could almost be reassured that the bio data of R&AW personnel lock, stock and barrel already would be with persons who need them. The Government like an ostrich is not expected to burry its head in sand and be complacent. Adversaries are to be met at their levels, and one may feel that the behavioral mechanism as of now is rather childish. There is already justifiable criticism in the air, that even democracies, globally, have abandoned or at least pushed back priorities in matters of human rights and are contended to highlight the subject only on occasional speeches or deliberations in conferences, where nothing happens. There has developed personnel contradiction between recognizing human rights and foreign policies of the State. But so long as we are expected to uphold constitutional rights of an individual, we cannot be silent witness to at least such unpalatable happening brought to our notice. The right to life, and all fundamental rights requires to be zealously guarded and such rights of a citizen should not be permitted to be crushed by the onslaught of the State machinery. The administrative law is a part of public law. Every one is bound by the Constitution. Judicial review of the administrative action necessarily has to be rested on the totality of the situations presented with special reference to guaranteed and undeniable rights conferred on a civil servant.
23. Indeed, we are not unmindful of the dictum of the Hon ble Supreme Court, gatherable from LIC of India Vs. Escorts Ltd. (1986 (1) SCC 264). While construing statutes enacted in the National interest only the broad factual situations require to be emphasized in an effort to advance National interest proposed by the legislation. We find that this situation itself cannot authorize the Government to do away with the basic, statutory and constitutional rights of an individual, his dignity or sense of belonging to the society. We hold that even within the framework of the provision, which we consciously keep undisturbed, the applicant could not have been prejudiced as have been attempted. Indeed we found that the applicant, perhaps because of her family background, education and exposure was conducting herself very well in the Court, and normally would have been an asset to the organization. We, of course, feel that the alleged escapades of her superiors should not have bothered her unduly as she was well capable of looking after herself, as is evident, ignoring any such overtures with distain. We refrain from sermonizing. However, it is plain that respondents have resorted to use the weapon of the statute, which was exclusive to their armoury. This was unfair.
24. We, therefore, quash Annexure A-1 and direct that the applicant should be restored to her status as was existing on 17.12.2009. Follow up orders are to be issued within six weeks from today. The applicant will be entitled to consequential benefits of reinstatement with salary. However, she will have to remit back the compensation she might have received (if any) as might have been paid because of the working of Annexure A-1.
25. We refrain , however, from passing any order as to costs.
(N.D. Dayal (M. Ramachandran)
Member (A) Vice Chairman (J)