The Supreme Court has directed the Madhya Pradesh High Court to reinstate a lower court judge whose resignation has been deemed to be coerced by circumstances and thus involuntary.
The bench of Justices L Nageswara Rao and BR Gavai did not go into allegations of sexual harassment made by the petitioner and decided the case on other facts. The petitioner herself did not contend the same before the court, however the mitigating circumstances which led to her forced resignation emerged from the alleged sexual harassment by a judge of the Madhya Pradesh High Court at whose behest a complaint was made by the Gwalior District Judge which led to her transfer order. The apex court held the transfer order to be irregular. It also held the rejection of her pleas to reconsider her transfer to be arbitrary.
The petitioner filed a petition to quash the Madhya Pradesh High Court order of January 11, 2018, rejecting her application for reinstatement as Additional District Judge, Gwalior.
She submitted that her resignation in 2014 amounted to constructive dismissal due to the employer’s conduct which applies in the Statutory context where the term “Dismissal/dismissed” is used.
Background
The survivor alleged that she was sexually harassed by a judge of the High Court (addressed as ‘Justice A’) after which, at his instance, the District Judge complained against her in July 2014 to the MP High Court and she was transferred from Gwalior to Sidhi. She requested for extension of time before transfer so that her daughter could complete her Class 12 education but the same was denied twice after which the petitioners resigned. The following month, in August 2014, she sent a representation to the President of India, the Chief Justice of India, with a copy to Chief Justice of MP High Court seeking appropriate action after fact finding, to consider circumstances under which she was coerced to resign and to institute appropriate mechanism for redressal of such grievances.
An inquiry was conducted against ‘Justice A’ into his alleged conduct which culminated in the judgment passed by this Court in the case of Additional District and Sessions Judge ‘X’. v. Registrar General, High Court of Madhya Pradesh and Others (2015) 4 SCC 91.
Refusal to reinstate
The Madhya Pradesh High Court administration in its affidavit to the Supreme Court maintained that the full court (comprising all judges of the high court on the administrative side) considered the possibility of her reinstatement four times since January 2018, and reached the same decision each time that she cannot be reinstated after resigning from her job voluntarily. Further, her request to be transferred to judicial services of some other state was also not accepted since the MP High Court was “not agreeable to reinstating her at all”.
On two or three occasions in the past, the Supreme Court urged the Madhya Pradesh High Court to consider her case on humanitarian ground, but all the judges in the high court decided unanimously against reinstating her through full court decisions.
The inquiry
The then CJI sought a preliminary inquiry report from the then Chief Justice of the Karnataka High Court after which an in-house committee headed by the then Chief Justice of Allahabad High Court was formed which submitted its report in July 2015. Thereafter, following a motion in the Rajya Sabha, a Judges Inquiry Committee (JIC) was constituted under Section 3 of the Judges (Inquiry) Act, 1968 which submitted its report on December 15, 2017 clearing ‘Justice A’ of all charges.
However, the JIC observed that the petitioner’s transfer was irregular and the circumstances compelled her to resign and opined that she should be reinstated if she wishes to re-join. Accordingly she addressed a representation to the then Chief Justice of MP High Court on December 21, 2017 for her reinstatement. However, in January 2018, her representation was rejected after which she came before the Supreme Court.
In the interim, the apex court passed an order in February 2019 requesting the MP High Court for reconsideration of the issue of reinstatement, but the HC again rejected the same.
Petitioner’s submissions
The petitioner clarified that she was pressing the matter on the ground of sexual harassment by ‘Justice A’ but only limiting to the issue or her transfer order being illegal and malafide and the consequent resignation amounting to constructive dismissal.
Senior Advocate Indira Jaising submitted that it is clear that the petitioner’s transfer was not made on administrative grounds, but on the grounds of the complaint made by the then District Judge, Gwalior. Further, the JIC had also found that the transfer of the petitioner was made on the basis of the said complaint. She stated that the petitioner’s representations were considered by the Transfer Committee in the right earnest and that her resignation was an outcome of the circumstances, in which she had no other option but to tender her resignation and as such, was not a resignation in law but a forced resignation, which amounts to constructive discharge.
Jaising also made referecen to Article 11 of Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) which states that a woman should be able to work and discharge family duties at the same time.
Respondents submissions
Solicitor General Tushar Mehta submitted that the allegations made by the petitioner with regard to sexual harassment are found to be not established by the JIC. He further contended that the concept of “coercion resulting into resignation” is a concept, which is developed in the western countries with regard to labour jurisprudence, and that in any case, such reliefs can be granted only when such a fact is duly established by leading evidence. He said that such a plea cannot be raised by a judicial officer who is trained to be independent, fearless, non-impulsive and to act in accordance with law.
He submitted that if a mere circumstance of midterm transfer, coupled with inconvenient family circumstances, are considered by this Court to be “coercion” to resign from service, it will open the floodgates of litigations. He also said that if a unanimous decision taken by the Full Court of the MP High Court is interfered with by this Court, it will not only stigmatise the individuals manning the institution but the entire institution.
Cannot examine orders of the Full Court
The court clarified that it was not examining the correctness of the Full Court decision of MP High Court of January 2018 and February 2019 whereby the petitioner’s representations were rejected. “We are conscious of the fact that the scope of judicial review of a decision of the Full Court of a High Court is extremely narrow and we cannot sit in an appeal over the decision of the Full Court of a High Court,” the court said.
The court stated that it was restricting its scope to examine whether the transfer order was legal and whether other orders rejecting the representation were legal; also whether her resignation can be considered to be voluntary or coerced by circumstances.
Findings of JIC
The court noted the following in JIC’s findings:
·The JIC came to a clear finding that the transfer of the petitioner was in contravention of the Transfer Policy laid down by the MP High Court and as such, was irregular.
·The representations made by the petitioner were not appropriately considered by the MP High Court.
·Justice ‘A’ had interfered with the transfer of the petitioner and also had a role to play in the rejection of her representations.
·The basis of the petitioner’s transfer was the complaint dated July 3 2014, made by the then D & SJ, Gwalior
·Though, it was the stand of the MP High Court that the transfer of the petitioner was on administrative grounds in view of the provisions of Clause 22 of the Transfer Policy, the same was not established
·The circumstances became unbearable for the petitioner, resulting in her resignation from service.
The court held that the transfer of the petitioner was effected midterm though she could have very well been transferred in general transfers and that only after the District Judge’s complaint was the matter placed before the Transfer Committee. “We are at pains to say that the rejection of the second representation depicts total nonapplication of mind by the then RG as well as the then Judge of the Transfer Committee of the MP High Court,” the court said.
Transfer order was arbitrary
The court said, “We have no hesitation in holding that the petitioner has established that her transfer order was in contravention of the Transfer Policy and that the rejection of her two representations, in addition of being contrary to the Transfer Policy, were also arbitrary”.
The court held that the transfer order would squarely be covered by ‘malice in law’ inasmuch as it was passed without taking into consideration the Guidelines provided in the Transfer Policy but on the basis of unverified allegations made in the complaint by the District Judge.
Referring to the representations made by the petitioner, the court said that she was entitled for consideration of her case on the ground that her daughter was to appear in the final year of Board Examination. The Judge on the Transfer Committee had admitted to the JIC that he had not gone through the annexures of the petitioner’s representation. “Non-consideration of the relevant material and consideration of the extraneous material would come into the realm of irrationality. An action which is arbitrary, irrational and unreasonable would be hit by Article 14 of the Constitution of India,” the court said and held that the rejection of her representations by the Committee do not stand the scrutiny of law.
Whether resignation was forced
The court considered the submission of SG Mehta about the attributes of a judicial officer and stated,
“No doubt, that a Judicial Officer while discharging his/her duties, is expected to be independent, fearless, impassionate and nonimpulsive. But a Judicial Officer is also a human being. A Judicial Officer is also a parent. He/she could be a father or a mother. The question would be, whether a Judicial Officer, while taking a decision in his/her personal matter as a human being, in his/her capacity of a father or mother, would be required to be guided by the same yardsticks”
The court stated that the resignation cannot be considered in isolation, but all the attendant circumstances will have to be taken into consideration. “It appears that in a gruesome battle between a mother and a Judicial Officer, the Judicial Officer lost the battle to the mother,” the court said.
The court also noted that the breakneck speed at which events transpired gave rise to suspicion that there is something more than which meets the eye. Within 4 days of the District Judge’s complaint, the Tarnsfer Committee decided to transfer the petitioner and next day the order was made. Her representations were also rejected within 2 days of receipt and immediately next day after rejection of her second representation, she tendered her resignation. The same was accepted by the High court within just 2 days. The court observed that in some cases when judges of good track record submit resignation, senior judges of the High Court try to counsel them and stated that “it will be in the interest of judiciary that such a practice is followed by all the High Courts.”
“Though, it may not be possible to observe that the petitioner was forced to resign, however, the circumstances enumerated hereinabove, would clearly reveal that they were such, that out of frustration, the petitioner was left with no other alternative,” the court held.
The court thus held as follows:
(i) We hold and declare that the petitioner’s resignation from the post of Additional District & Sessions Judge, Gwalior dated 15th July 2014, cannot be construed to be voluntary and as such, the order dated 17th July 2014, passed by the respondent No. 2, thereby accepting the resignation of the petitioner, is quashed and set aside; and
(ii) The respondents are directed to reinstate the petitioner forthwith as an Additional District & Sessions Judge. Though the petitioner would not be entitled to back wages, she would be entitled for continuity in service with all consequential benefits with effect from 15th July 2014.
The judgement may be read here:
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