Nisha Priya Bhatia v. Union of India: On Sexual Harassment and Legality of Rule 135 of RAW Rules.

The SC in the present judgment dealt with the constitutionality of Rule 135 of the Research and Analysis Wing (Recruitment, Cadre and Services) Rules, 1975.

Rule 135 of the RAW (Recruitment, Cadre and Services) Rules, 1975 gives power to the Central government to voluntary retire RAW Officers whose identity is exposed or compromised.

In the present case, an ex-female employee of RAW was compulsorily retired after she made allegations of sexual harassment against two senior officials of RAW.

Constitutionality of the Impugned Rule.

Appellant argued that Rule 135 is in direct contravention of Article 311 of the Constitution, which deals with “dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or the State”. The court held the Rule 135 of the RAW (Recruitment, Cadre and Services) Rules constitutional, because:

1. Until and unless the action taken against a public servant is in the nature of punishment, the need for conducting an inquiry coupled with the grant of an opportunity of being heard, as envisaged under Article 311, does not arise at all.

1. The Rule has been carved out as a special provision and is premised on the doctrine of necessity. It forms a small subset of the genus of Article 309 deals strictly with cases of “exposure” of “intelligence officers” who become unemployable in the Organisation for reasons of security.”

The Court concluded that the effect of any action taken under Rule 135 does not entail any penal consequence for the employee and, therefore, it cannot be put at the same pedestal as an action of dismissal or removal, and no inquiry or opportunity of hearing as envisaged under Article 311 is required while taking an action under this Rule.

Order for Compensation for Violation of Fundamental Rights.

The bench ordered the Respondent, (Union of India) to pay compensation worth Rs.1,00,000/-­ to the Petitioner for violation of her fundamental rights to life and dignity caused by improper handling of her complaint of sexual harassment.

The bench observed that time taken to process the stated complaint and improper constitution of the first Complaints Committee (intended or unintended) in violation of the Vishaka Guidelines, constituted undignified treatment and violation of the fundamental rights of the petitioner, more particularly Articles 14 and 21 of the Constitution.

Widening the ambit of law regarding sexual harassment, the bench observed that apart from the actual commission of acts of harassment, the approach of law also covers situations wherein the woman employee is subjected to prejudice, hostility, discriminatory attitude and humiliation in day to day functioning at the workplace.