Union of India v. Nisha Priya Bhatia

judgment: "On 26.4.2004, after hearing the learned Attorney General and learned counsel for the States, this Court directed as follows : "Complaints Committee as envisaged by the Supreme Court in its judgment in Vishaka"s case will be deemed to be an inquiry authority for the purposes of Central Civil Services (Conduct) Rules, 1964 (hereinafter called CCS Rules) and the report of the complaints Committee shall be deemed to be an inquiry report under the CCS Rules. Thereafter the disciplinary authority will act on the report in accordance with the rules."

¶30This Court repeatedly emphasizes and underlines the above aspect because though not directly relevant to decide whether the impugned directions of the CAT were justified, they provided a contextual backdrop which could not be ignored at all. The context was that Ms. Bhatia was perceived as "difficult" and that her relations with a colleague were strained (to put it mildly) and that his views about her were derogatory – a conclusion drawn by the Shashi Prabha committee. Likewise, the conclusions of the Page 31

Rathi Vinay Jha committee are no less an indictment of the inadequacy – in terms of timeliness of the response – of the Union Government. The latter committee went to the extent of stating that the transfer of Mr. Uke was a vindication of Ms. Bhatia's allegations.

¶31These facts and circumstances, when Ms. Bhatia was in a hostile work environment that she was subjected to a posting order which sought to transfer on 08.11.07 as Director (Trg). There is no denial by the Union Government that another officer, the then Director was initially posted out as Director (PR) Hqrs. That transfer order was, a week later, by another order dated 16.11.07, cancelled. The result was that two officers were posted against one sanctioned post of Director (Trg). Ms. Bhatia's allegation that as Shri Mohapatra was the sitting Director (Trg), she was without any work charge. Only one sanctioned post of Director (Trg) in the R&AW undeniably exists. This is established by a noting dated 08.04.08 of the Accounts Officer (B & F). Ms. Bhatia also alleges that as Head of an Institute, was given a shabby cubicle next to a toilet to work from. She, under these circumstances proceeded on leave and then complained and represented to the PMO to claim her charge of post of Director (Trg). These facts culminate in the alleged misconduct of unauthorized absence; however they are also linked with her allegations of harassment at the workplace. There cannot be any doubt that what is an act of harassment may be one incident, or a series of incidents; omissions to respond appropriately (as has been commented by the Jha committee) can also constitute harassment. The events, after November 2007 are thus a live link with the allegations of misconduct levelled against Ms. Bhatia and therefore, acquire some relevance.

¶31It is a matter of record that Ms. Bhatia approached the CAT in 2008 Page 32

itself (through OA No. 2687/08) sometime in November (2008) claiming that she ought to be given a posting commensurate with her rank and status. In this, she had alleged that her office had been trespassed, and also made serious allegations. The Central Government's affidavit refuted the allegations stating that: "The Applicant can collect whatever was found in her almirah [by officers of the petitioner organization]. Which is lying safe. Nothing belonging to the applicant has been kept in sealed custody." It was in this proceeding that the CAT ordered, on 15.05.2009, the Union Government to permit Ms. Bhatia to join duties and that their insistence for submission of the certificate of transfer ought to be waived. In the same proceedings, while disposing of an miscellaneous application (MA No. 1089/2009 in OA No. 2687/08), the CAT directed on 26.11.09 that: "the learned counsel has further stated that the respondents (officers of the petitioner organization) would consider re-posting the applicant back to the executive cadre after six months when tempers have cooled down."

On 08.12.2009, the order compulsorily retiring Ms. Bhatia was issued. The Central Government did not settle her terminal dues; provisional pension was sought to be paid to her. Her applications to the CAT (O.A.s 1665/2010 and 1967/2010) against this move-as also the Central Government's stand that between 29.08.2008 and 26.11.2009 she was unauthorizedly absent-were disposed of, with a direction to the Union to first scrutinize its records to find out if any period or periods could be treated as on duty, and then hold a factual inquiry. The Union Government did not complete its task with the time allocated by CAT; this led Ms. Bhatia to file another application OA 3613/2011. In this proceeding, the Central Government filed an affidavit, in Page 33

reply to a miscellaneous application for directions. It was stated, importantly, in the said affidavit, that: "the total period of her absence is – 29.08.2008 to 26.11.2009. As per the in-house enquiry conducted by the Jt. Secretary, period from 07.04.2009 to 09.06.2009 (63 days) could be considered as "on duty", giving her the benefit of doubt, after considering the copy of attendance register. In so far as the remaining period from 29.08.2008 to 05.04.2009 and

10.06.2009 to 26.11.2009 (390 days) can be considered as "Child Care Leave"/"Earned Leave."

¶7It may be mentioned here that the Applicant (Ms. Nisha Priya Bhatia) has been paid entire salary for the entire period i.e. 29.08.2008 to 26.11.2009 alongwith all other benefits, which she was entitled to."

It is significant to note that the affidavit of one Shri Vinod Kumar, Deputy Secretary, in reply to Ms. Bhatia's application (in OA No. 2687/08) admitted that she had joined duties on 06-04-2009: "Para 3 – It is admitted that the applicant had joined office on

06.04.09. It is also reiterated that despite her being absent since

29.08.08 another posting order of the applicant was issued on

27.11.08 and she was never debarred from attending office. Her absence from duty w.e.f. 29.08.08 was of her own volition. Further, it is submitted that whether the order of her posting is half type written and half computerized is immaterial as long as it is signed by the competent authority."

Crucially, this affidavit nowhere stated that Ms. Bhatia continued to be absent unauthorizedly.

¶32The relevant provisions of the Pension Rules (1972) are Explanation

(b) to Rule 8 (5), and Rule 9. The former (explanation (b) to Rule 8 (5)) reads as follows: Page 34

"(b) the expression `grave misconduct' includes the communication or disclosure of any secret official code or password or any sketch, plan, model, article, note, document or information, such as is mentioned in Section 5 of the Official Secrets Act, 1923 (19 of 1923) (which was obtained while holding office under the Government) so as to prejudicially affect the interests of the general public or the security of the State." Rule 9, to the extent it is relevant, is reproduced below: "9. Right of President to withhold or withdraw pension 1[(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement :

(2)…..(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-employment, -

(i) shall not be instituted save with the sanction of the President,

(ii) shall not be in respect of any event which took place more than four years before such institution, and

(iii) shall be conducted by such authority and in such place as the President may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service."

¶33It is a matter of law that public employment arises out of status (i.e the law governs the tenure and terms of employment, rather than contract-Ref. Roshanlal Tandon v Union of India AIR 1968 SC ). Equally, pension is neither bounty nor largesse, but deferred salary, which the public employee cannot be deprived of, except in accordance with law (D.S. Nakara v Union Page 35

of India 1983 (2) SCR 165). It is in consonance with this principle, that the Union Government framed Rule 9 of the Pension Rules. It visualizes a situation where a public employee, drawing pension, can be deprived of a part of that pension, provided a prescribed procedure is followed and preconditions are met with. These are not only procedures, but also safeguards. Unlike a serving public employee, who can be indicted for every kind of lapse, misconduct or negligence, (minor or major) and visited with an entire range of penalties, the severest one being dismissal from service, a retired public employee's pension can be deprived only if she (or he) is found guilty of grave misconduct or negligence. The expression "grave" injects a degree, an element of seriousness. Furthermore, that enquiry should be completed and the retired public servant should be found guilty of such grave misconduct within four years of his (or her) retirement. The expression "institution" refers to issuance of a charge sheet proposing the departmental inquiry. In D.V. Kapoor v Union of India AIR 1990 SC 1923, the Supreme Court had occasion to deal with Rule 9; the Court observed as follows: "It is seen that the President has reserved to himself the right 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, i.e. the scope is wide of mark dependent on the facts or circumstances in a given case. Myriad situation may arise depending on the ingenuinity with which misconduct or irregularity Page 36

was committed. It is not necessary to further probe into the scope and meaning of the words 'grave misconduct or negligence' and under what circumstances the findings in this regard are held proved….

¶6As seen the exercise of the power by the President is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office, subject of the charge. In the absence of such a finding the President is without authority of law to impose penalty of with-holding pension as a measure of punishment either in whole or in part permanently or for a specified period, or to order recovery of the pecuniary loss in whole or in part from the pension of the employee, subject to minimum of Rs.60.

¶7Rule 9 of the rules empowers the President only to with-hold or withdraw pension permanently or for a specified period in whole or in part or to order recovery of pecuniary loss caused to the State in whole or in part subject to minimum. The employee's right to pension is a statutory fight. The measure of deprivation therefore, must be correlative to or commensurate with the gravity of the grave misconduct or irregularity as it offends the right to assistance at the evening of his life as assured under Art. 41 of the Constitution."

¶34Apart from the disclosure made by the Union Government in its affidavits before it, what persuaded the CAT to hold that there ought to be no further inquiry into the matter was that the said Government itself changed the position, stating in an affidavit that 63 days period could be treated as "in service". Yet its most contemporaneous affidavit (of Shri Vinod Kumar, adverted to above) nowhere mentioned in June, 2009 that Ms. Bhatia continued to absent herself. It was filed after 12th June, 2009. According to the later affidavit – filed in 2012, Ms. Bhatia had lapsed into unauthorized absence. The second aspect was that there were conflicting versions as to whether the lack of an identity card (which had been applied by Ms. Bhatia on 21.08.2008) amounted to a hindrance to her joining the service. Though Page 37

the Central Government stated that no such hindrance existed, Ms. Bhatia disputed it. As a matter of fact, the I-card was issued only in February 2009. Having regard to the previous accusations levelled against some officials and the senior most officer of the organization, and the underlying hostility that was faced by Ms. Bhatia, her statements cannot be brushed aside. If other facts, such as the opinion of Dr. Ray (who had not even examined Ms. Bhatia, but ventured to comment on her mental health) which was given some publicity and the First Information Report lodged against her (as per the information given to her under the Right to Information Act) are taken into consideration, the possibility of her being subjected to continued hostile treatment and obstructed cannot be ruled out.

¶35This Court has no difficulty in accepting the general proposition that "grave misconduct" or grave negligence can, in given cases included unauthorized absence of a public servant from duties, or his or her refusal to discharge the functions assigned or attached to his office. However, whether every omission to report for duties is "grave" misconduct or negligence, would depend on the circumstances appearing from the record. D.V. Kapoor"s case is one instance where such continued absence was held not to be "grave" misconduct warranting withholding of pension under Rule 9. In the present case, neither was any inquiry initiated, nor even contemplated at the time the respondent, Ms. Bhatia, was served with the compulsory retirement order. It was only when the Central Government prevaricated in the release of her terminal dues, and she demanded proper orders, that a provisional pension fixation order was made on 10.05.2010, after this court made an order on 03.05.2010 in the Central Government's 2010 Petition (challenging the striking down of the compulsory retirement order). The Page 38

provisional pension fixation order stated that it was for the period "from

19.12.2009 till her period of unauthorized absence is regularized." The allegations regarding unauthorized absence were made by the Union Government in O.A.1665/2010 and O.A.1967/2010. Yet, no attempt or effort to issue a charge sheet or consider that such absence amounted to "grave misconduct" was made. Even after disposal of those proceedings, till the new application – OA 3613/2011 was filed in September, 2011, no attempt to examine whether the omission or conduct was worthy of inquiry under Rule 9 was undertaken. In this context, the affidavit of the Union Government, stating that certain periods (of Ms. Bhatia's absence) could be considered to be on duty, is extremely relevant. In that affidavit, it was submitted that: "In so far as the remaining period from 29.08.2008 to

05.04.2009 and 10.06.2009 to 26.11.2009 (390 days) can be considered as "Child Care Leave"/"Earned Leave."

¶36The position of the Central Government is curious indeed. Before this court, it argues that the entire period of absence is unauthorized, and amounts to "grave" misconduct, warranting Rule 9 inquiry. At the same time, it expresses willingness to condone the lapse, as it were and treat the period as if Ms. Bhatia were on leave, provided she applies for it. This approach, is conflicting and inconsistent. There can be no question of condoning a "grave" misconduct, - a category of unacceptable behaviour of public servants, which includes allegations of embezzlement and defalcation which can lead to forfeiture of pension, permanently or for some period. The mere fact that the Central Government is in a position to state that the conduct is "condonable" and the period capable of "regularization" implies Page 39

that it is not "grave misconduct" having regard to the overall circumstances of the case.

¶37It has been said that power, wherever vested, in a public authority or agency, must be exercised fairly and justly: "Any law made or action taken by the employer, corporate statutory or instrumentality under Article 12 must act fairly, justly and reasonably. Right to fair treatment is an essential inbuilt of natural justice. Exercise of unbridled and uncanalised discretionary power impinges upon the right of the citizen; vesting of discretion is no wrong provided it is exercised purposively judiciously and without prejudice. .." (Delhi Transport Corporation v DTC Mazdoor Congress AIR 1990 SC 101).

Every public authority is also under a duty to act within the bounds of the power conferred or vested in him, to further the objectives for which such powers are created and take into consideration only relevant circumstances, bona fide and reasonably. Sans any of these, the exercise of power is colourable, as held in State of Punjab v Gurdial Singh, AIR 1979 SC 319:

"considerations, foreign to the scope of the power or extraneous to the statute, enter the verdict or impel the action, mala fides or fraud on power, vitiates the acquisition or other official act."

The matter was put even more forcefully in Ravi Yashwant Bhoir v. District Collector, Raigad & Ors., AIR 2012 SC 1339, as follows:

"37… Legal malice" or "malice in law" means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill-feeling and spite. Mala fide exercise of power does not imply any moral turpitude. Page 40

It means exercise of statutory power for "purposes foreign to those for which it is in law intended." It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law."

¶38Having regard to the entire conspectus of circumstances which have been unravelled to this court in these proceedings, i.e. the previous history of grievances articulated by Ms. Bhatia, concerning her sexual harassment at the workplace and the several adverse remarks made against the Union Government officials with respect to the lack of any action in tune with the Vishaka guidelines (which amount to an indictment of culpable omission on their part); their intrinsic connection with Ms. Bhatia's transfer and the charges and counter charges levelled by and against her; the affidavits filed by the Union Government; its unexplained inaction in regard to any proposal to hold inquiry under Rule 9 any time after the compulsory retirement order or even its omission to issue charge sheet for a long time, its willingness to condone the allegations provided Ms. Bhatia applies for leave-this Court has no doubt that the CAT's impugned order directing the Union Government to not hold any inquiry into allegations of Ms. Bhatia's period of absence, was justified and calls for no interference. Similarly, its direction to fix her pension with effect from 19.12.2009, without treating such periods as unauthorized absence and take consequential action, and without requiring her to apply for leave, and to release differential amounts, are hereby affirmed. The amounts which are to be paid to Ms. Bhatia, shall be released within 4 weeks. All consequential terminal benefits shall be revised within the same period and paid to her. All such amounts shall carry interest @ 9 Page 41

per cent per annum from 19.12.2009 till date of payment. The writ petition is dismissed, in terms of the above directions. All pending applications also stand dismissed. The Petitioner shall pay Rs.25,000/- costs to the respondent.

S. RAVINDRA BHAT, J

R.V.EASWAR, J OCTOBER 21, 2012

Page 1 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve : 13.12.2012 Date of Decision : 21.10.2013 + W.P. (C) 3704/2012 & CM APPL.Nos. 7772, 7774, 8894, 9629 & 10289/2012 UNION OF INDIA ..... Petitioner Through: Mr. Sudhir Walia with Ms. Varsha Juneja and Mr. Akhil Sachar, Advocates. Versus NISHA PRIYA BHATIA ..... Respondent Through: Ms. Nisha Priya Bhatia, respondent in person. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE R.V.EASWAR MR. JUSTICE S. RAVINDRA BHAT % 1. In this writ petition, the Union Government feels aggrieved by an order of the Principal Bench of the Central Administrative Tribunal (hereafter called "the CAT") in O.A. No. 3613/2011. The CAT allowed the respondent/petitioner's (hereafter called "the respondent" or "Ms. Bhatia") application and directed the regularization of two spells of alleged unauthorized absence and also directed the Union Government to revise the respondent's pension with effect from 19.12.2009 with consequential Page 2 benefits. 2. The facts necessary for deciding the case are that the respondent was a 1987 batch Class I Executive cadre officer in the Cabinet Secretariat [also known as the R&AW]. The events which led to her compulsory retirement with effect from 18.12.2009 have to be recapitulated. The respondent had alleged sexual harassment at the workplace sometime in 2007. This led to the constitution of two Committees. Although the reports of these Committees are not the direct subject matter of these proceedings, yet the reports of the Committee (dated 19.05.2008 and subsequent report of another Committee dated 30.09.2008) indicated that the allegations of sexual harassment could not be substantiated. On 08.12.2009, the Union Government, by invoking its powers under Rule 135(1)(a) of the Research & Analysis Wing (Recruitment, Cadre & Service) Rules, 1975, compulsorily retired the respondent on the ground of her being exposed as an Intelligence Officer and thus becoming unemployable in the organization. The respondent in the present case challenged the order of compulsory retirement in O.A. 50/2010. After considering the arguments of the rival contentions, pursuant to notice issued to the respondents, the CAT quashed the said order of compulsory retirement and directed consequential relief to be granted to her. The Union Government, in turn, questioned the decision of the CAT before this Court in W.P.(C) 2735/2010. This Court, by an order dated 03.05.2010, issued notice to show cause to the respondent and in the meanwhile, stayed the order of the CAT, directing the respondent's reinstatement. The Court, however, clarified that, "…………..This, however, will not prejudice the right of the respondent to claim her compulsory retirement benefits in accordance Page 3 with law after fulfilling the formalities as contemplated under the rules. In case, the respondent claims her retrial benefits, the same be released to her within one week after fulfilling formalities by her. The claim of such retiral benefits by her shall be without prejudice to her rights and contentions……………….." 3. On 10.05.2010, an order fixing the respondent's provisional pension under Rule 69 of the CCS (Pension) Rules, 1972 ("Pension Rules"), based upon her pay drawn as on 28.08.2008, with effect from 19.12.2009, was issued. This order stated that the provisional pension should be released, "from 19.12.2009 till her period of unauthorized absence is regularized." The respondent contested the order of provisional pension to the extent that it treated a substantial period till the date of the order of compulsory retirement as period of unauthorized absence, by filing O.A. 1665/2010 before the CAT. In that proceeding, the respondent argued that the Union Government's submission in W.P. (C) 2735/2010 (hereafter referred to as "the UOI's 2010 petition") about an alleged period of unauthorised absence between 29.08.2008 and 26.11.2009 was not justified. She referred to previous proceedings before the