Indira Jaising

| @IJaising | July 26,2018

The battle of a brave woman judge who says she was sexually harassed by a male sitting judge of Madhya Pradesh High Court, goes on. She has once again approached the Supreme Court of India for her reinstatement on the judicial services. Her case went to the Judicial Inquiry Committee (JIC) constituted under the Judges Inquiry Act, 1968, and a report submitted to the Chairperson Rajya Sabha, holding thatthe case of sexual harassment wasnot proved, but her transfer from Gwalior to Sidhi was not lawful. During the hearing before the JIC — comprised of Justice R Banumathi as its chairperson and Justice ManjulaChellur, the then Chief Justice, Calcutta High Court and K K Venugopal, Senior Advocate, Supreme Court of India as its members — Justice Rajendra Menon, who was at the relevant time heading the Transfer Committee, gave evidence on oath and was cross examined. The committee came to the conclusion that the transfer was unlawful.

Today, Justice Rajendra Menon is proposed to be appointed as the Chief Justice of Delhi High Court. The question, therefore, arises: Having failed in his administrative duty as a judge, is he still fit to be appointed as the Chief Justice of Delhi High Court? Did the Supreme Court Collegium do its due diligence before recommending name of Justice Menon for the appointment as Delhi High Court’s Chief Justice upon acting on a letter from Law Minister seeking reconsideration of the name of Justice Aniruddha Bose of the Calcutta High Court, who was initially recommended by the Collegium for the appointment as the Chief Justice of Delhi High Court?

Having failed in his administrative duty as a judge, is he still fit to be appointed as the Chief Justice of Delhi High Court? Did the Supreme Court Collegium do its due diligence before recommending name of Justice Menon for the appointment as Delhi High Court’s Chief Justice upon acting on a letter from Law Minister seeking reconsideration of the name of Justice Aniruddha Bose of the Calcutta High Court, who was initially recommended by the Collegium

 


A questionable appointment

 

The proposal to appoint Justice Rajendra Menon, the Chief Justiceof the Patna High Court, as the Chief Justice of Delhi High Court while denying the appointment to Justice Aniruddha Bose of the Calcutta High Court, is alarming and does not seem to be based on empirical data. The Supreme Court Collegium had earlier recommended on January 10, 2018 the name Justice Aniruddha Bose for the appointment as the Chief Justice of Delhi High Court. However, the Union Law Minister, Ravi Shankar Prasad, referred back the recommendation to the Collegium for reconsideration on the ground that Justice Bose did not have any experience as a chief justice to handle such a “prominent” high court. The Collegium accepted the reasons given by the Law Minister and, therefore, decided on July 16, 2018 to withdraw its earlier recommendation and to recommend Justice Menon for the appointment as Chief Justice of Delhi High Court in place of Justice Bose.

Justice G Rohini was a puisne judge of Andhra Pradesh High Court before her appointment as Chief Justice of Delhi High Court. Present judge of the Supreme Court, Justice N V Ramana served as Chief Justice of Delhi High Court without having served any other High Court as Chief Justice prior to his assignment in Delhi High Court

The reason given by the Law Minister for seeking reconsideration on the name of Justice Bose is contrary to precedent. As pointed out in a report published in The Print.inthere have been quite a few Chief Justices of Delhi High Court who had no experience of being the Chief Justice of any High Court before their appointment as the Chief Justice of the Delhi High Court. For example, Justice G Rohini was a puisne judge of Andhra Pradesh High Court before her appointment as Chief Justice of Delhi High Court. Present judge of the Supreme Court, Justice N V Ramana served as Chief Justice of Delhi High Court without having served any other High Court as Chief Justice prior to his assignment in Delhi High Court.

In any event, a stigma has been cast on Justice Bose in that he is not considered fit to be the Chief Justice of a “prominent court”. He may be gracious enough to accept the appointment as the Chief Justice of High Court of Jharkhand, which in my opinion is equally “prominent”, given that almost all of India’s mines are located in a radius of 50 kilometres of that court. But that does not explain why the Collegium changed its mind on the subject and altered its own recommendation dated January 10, 2018. On the other hand, the Collegium approves of the skills — both judicial and administrative — of Justice Rajendra Menon. As we now know, the administrative role of the Chief Justice as the Master of the Roster, is more important perhaps than his or her judicial role, or in any event as important. Hence, let us look at a little more closely at the proposed appointee to Delhi High Court considered such an important High Court that it needs an “experienced” judge such as Justice Rajendra Menon.

Background of Justice Menon

Justice Rajendra Menon started practising law soon after graduating in law in the year 1981 and was Standing Counsel for the Central Government from 1991 till his elevation as the judge of the High Court. Also, he has been Standing Counsel for quite a few Private and Public Sector Undertakings (PSUs). He was elevated as Additional Judge of Madhya Pradesh High Court and took oath on April 1, 2002. He was transferred to the Patna High Court and appointed as Chief Justice there on  March 15, 2017. During his posting at Madhya Pradesh High Court, he was associated with several Administrative Committees. He was also appointed as Chairman of Bhopal Gas Victims Compensation Commission, in-charge of Judicial Education & Training, Chairman of M P State Judicial Academy and also Chairman of M P State Legal Services Authority. He was also Acting Chief Justice of Madhya Pradesh High Court from May 13, 2016 to March 14, 2017.

His biography reads like any other judge — did law, became a government’s standing counsel and soon thereafter became a judge.What it does not tell you is that he was the judge in-charge of the Transfer Committee in Madhya Pradesh, who admittedly took the decision to transfer a woman district court judge, who has now submitted before the Supreme Court that her resignation was a constructive dismissal consequent upon an illegal transfer made by the Transfer Committee headed by Justice Menon.

 Transfer policy

The clause 9(a) transfer policy reads as follows, according to which the woman judge had filed her first representation, requesting eight-month postponement of her transfer:

“9.        Normally, a request for extension of tenure shall not be accepted except in the following cases.

(a)       That the daughter (not son) of the Judicial Officer is studying at the place of his current posting and is in the Final Year of a Board Examination or University Examination, and the educational Institution where such daughter is studying, does not have hostel facility for girls. This will be the criteria for officers seeking over stay in A category places for B, C or D category places it may be the daughter or son, and availability of hostel will not be essential. It is further clarified that the aforesaid request shall be considered only if the facts with regard to education of the daughter and non-availability of Hostel facility in the Institution is certified by the District Judge concerned, after proper verification, and the District Judge as well as the Portfolio Judge have no objection to the over-stay of the Officer.”

The woman judge in question has a daughter who then was studying in Class XIIand hence was eligible to continue in Gwalior till her daughter finished that year of education. She wrote to the Registrar pleading that she was the part of the family of Indian judiciary, she was ready to obey any orders, but that only for eight months, her transfer be stayed, as she was in a vulnerable stage, her elder daughter was in class XII and her studies would be disrupted completely due to the sudden mid-academic transfer.

Clause 16 of the Transfer Policy reads as follows, according to which the woman judge had filed her second representation:

“16.     On transfer, normally, judicial officer (except District Judges, which term here does not include Additional District Judges) will have to go from A to B, from B to C, from C to D, and from D to A or lower category places. Any lower category may be given (i) either at the option of the Officer, or (ii) if post is not available in the category of entitlement, or (iii) if for any other reason the transferring Authority is of the opinion that the officer should be transferred to a lower category. However, in case (i) and (ii) the officer will retain his category entitlement and attempt will be made at the next transfer to post him to that category to which he should have been posted at the transfer where he could not be accommodated. Every Judicial Officer will have to serve in each category place for the normal tenure prescribed above for that category. However, if overstay of pre-mature transfer request of the Officer is allowed by the High Court for any particular place of posting, then the actual period of stay at such place will be deemed to be the normal tenure of  that place for the posting. “

 The woman judge was transferred to Class C from Class A, Gwalior to Sidhi, a remote Naxalite area.

Justice Menon admitted before the JIC, while he was the acting Chief Justice of Madhya Pradesh High Court, that he had acted on the complaint of District Judge, Kamal Singh Thakur without giving the woman judge an opportunity to be heard. Justice Rajendra Menon, presently Chief Justice of Patna High Court, had also admitted in his examination by the JIC, to his long-lasting relationship with Justice S K Gangele — the Judge accused of sexual harassment. He had also admitted that he had received calls — coincidentally, he wanted us to believe — from Justice S KGangele, from the day when the transfer committee decided to transfer the judges on deputation to the vacant courts and till time of the rejection of the representations of the woman judge, but said that these calls were related to some administrative work.

When asked whether there were options to the transfer, such as transferring her to a more convenient place which had facilities for the education of her daughter, or extending her tenure till her daughter finished the XII standard, Justice Menon had said that there were options but he did not consider them.

The JIC came to the conclusion after going through the entire evidence relating to transfer of the woman judge — including the calls exchanged between Justice Rajendra Menon and Justice S K Gangele — that the transfer by the transfer committee headed by Justice Rajendra Menon was irregular, unjustified, punitive, and unmindful. It was also observed that Rajendra Menon transferred the woman Judge on the interference of Justice S K Gangele.

 The deposition before JIC

Here is how Justice Rajendra Menon’s evidence before the JIC went. Excerpts from the transcript:

“Q: Can you tell the Committee that what were the ‘administrative grounds’ upon which Ms. ABC was transferred from Gwalior to Sidhi?

A: The letter of District Judge Kamal Singh Thakur regarding Ms. ABC i.e. Exhibit JIC/14 dated 3rd July, 2014.

It is true the subjective satisfaction of the Committee to transfer Ms. ABC was only on the basis of the contents of letter of Mr. Kamal Singh Thakur, District Judge Exhibit JIC/14.

I did not call for copy of the said anonymous complaints or try to find out as to how the District Judge was able to say that Ms. ABC was the author of such anonymous complaints.

Q: If you did not try to find out that Ms. ABC was the author of the anonymous complaints, the District Judge would equally be wrong to opine that Ms. ABC was the author of the anonymous complaints. What do you have to say?

A: May be true.

If it is suggested to me that I was required to inquire into the correctness of the contents made in Exhibit JIC/14 in order to know whether the complaint against Ms. ABC an outcome of prejudice of the District Judge was, my answer would be that since the said District Judge had good reputation I did not make further inquiry.”

Q: Can you tell the reasons for rejecting the first representation dated9th July, daughter is studying in Class XII and was in the mid-session of the academic year?

A: Representation of Ms. ABC was rejected since Kendriya Vidyalayasand other schools having CBSE syllabus were in existence at Sidhi,we rejected her representation.

We did consider the difficulties expressed in the representation ofMs. ABC that her husband was residing in Delhi and she alone was taking care and welfare of the two minor daughters and no facilities for hostelwere available whereher daughter was studying. However, we rejected her representation for administrative reasons.

It is true that as per the Note prepared Exhibit JIC/31, for the consideration of Transfer Committee while rejecting first representation of Ms. ABC dated 9th July, 2014, there is no reference to hostel facilities being available at Gwalior.

It is true that as per the Note prepared Exhibit JIC/31, for the consideration of Transfer Committee while rejecting first representation of Ms. ABC dated 9th July, 2014, there is no reference to hostel facilities being available at Gwalior

I was not aware that daughter of Ms. ABC was studying at Little Angel High School in Gwalior in Class XII. Exhibit JIC/23 representation dated 9th July, 2014 of Ms. ABC was with enclosures indicating the fee receipt of Little Angels High School, Ms____ daughter of Ms. ABC. When we rejected the said representation of Ms. ABC, I did not see the annexure.

I am not aware whether the said school had hostel facilities.

I did not get verification of existence of hostel facilities at Gwalior in the said institution referred to above from my side.

It is true the representation of MS. ABC was to extend her stay at Gwalior till her daughter completes Class XII and thereafter proceed to any place on transfer.

Q: Were you not required to verify the representation and then for good reasons you reject the representation of Ms. ABC?

A: The suggestion is correct but we did not record the reason.

Exhibit JIC/24 contains my specific observation “representation may be rejected as it does not call for any consideration”.

It is true the prayer in the first representation of Ms. ABC at Exhibit JIC/23 was altogether different from the prayer made in the second representation i.e. Exhibit JIC/24. It is true in the first representation she wanted retention for a period of eight months at Gwalior and in the second representation, Ms. ABC sought for transfer to any of the four places mentioned above.

We did not consider her request for transfer to category B stations as requested by Ms. ABC in her representation dated 11th July, 2014 Exhibit JIC/ 24.

We did not do so since we kept in view the nature of pendency at Sidhi even though there was no vacancy at Sidhi.

It is true for the above reasons it was not a case of reconsideration of the first representation while considering the second representation.

The hollow nature of his claims is self-evidence, and perhaps the only thing that can be said to his credit is that he truthfully admitted that he had not read the representation made by the woman judge before rejecting it.

Alarmed by this deposition, there is what the impeachment committee had to say:

It is true for the above reasons it was not a case of reconsideration of the first representation while considering the second representation.He had not read the representation made by the woman judge before rejecting it

Justice Menon also admitted that even without discussing the matter with the Chief Justice or referring the matter to Administrative Committee-I, the Transfer Committee recommended transfer of the complainant and the same was approved by the Chief Justice on the very same day i.e. 7thJuly, 2014. Justice Menon [JIC W. No.11] admitted that the Committee did not take note of the Annexures of the complainant’s representations which contained the fee receipt of the complainant’s daughter containing the name of the school in which her daughter was studying. Justice Menon also admitted that he did not inquire into the availability of the hostel facility in the school in which the complainant’s daughter was studying. Clearly, the Transfer Committee did not inquire about the availability of the hostel facility in the school where complainant’s daughter was studying, nor chose to satisfy itself about the availability of the educational facilities at Sidhi; but chose to reject the complainant’s first representation [Ex. JIC/23] dated 9thJuly, 2014 on 11thJuly, 2014 [Ex. JIC/31], on the same day on which the note was put up by the Registrar General. However, when it was pointed out to him that on 7thJuly, 2014, the complainant was only short of 24 days for completion of her tenure of three years at Gwalior, Justice Menon accepted that the case of the complainant will be covered by Clause (9) of the transfer policy, which reads as under: –

“It is correct to say that Ms. ABC would have completed her tenure of three years at Gwalior on 31st July, 2014. When we transferred her on 7th July, 2014 Ms. ABC was only short of 24 days for completion of her tenure of three years at Gwalior.

Q: Is it not correct to say that therefore her request for extension of tenure would come under Clause (9) of the Transfer Policy Exhibit JIC/38?

A: It is true.

Q: If so, the fact that her daughter is studying for a board exam in Class XII would come under the exception set out in Clause 9 of Exhibit JIC/38?

A: Yes.

Q: If that be so, you could have waited for eight months for transferring Ms. ABC.  Isn’t it?

A: Yes, there was such option was available with the Transfer Committee.

It is correct to say that Ms. ABC would have completed her tenure of three years at Gwalior on 31st July, 2014. When we transferred her on 7th July, 2014 Ms. ABC was only short of 24 days for completion of her tenure of three years at Gwalior.

Q: Is it not correct to say that therefore her request for extension of tenure would come under Clause 9 of the Transfer Policy (Exhibit JIC/38).

A: It is true.”

[Vide Page No. 30 of deposition of JIC W. No.11]

When being questioned Justice Menon as to why she was transferred despite the fact that she was eligible to stay in Gwalior, he justified the transfer with reframe to the hung pendency of work in Sidhi. When confronted with statistics, he admitted that there were other districts in class B where the pendency was higher that were requested by her but was not considered. The other judges who could have been transferred in the annual transfers of the year 2014, 2015, called from deputation, in July 2014 were not transferred to Sidhi.

When asked if she was under the policy entitled to be transferred form category A to Category B and Sidhi did not fall in Category B, he admitted that it did not.

The committee records as follows:

“When being questioned, Justice Menon has admitted that on transfer from ‘A’ station (Gwalior), the complainant was entitled to Category ‘B’ station; but huge pendency of cases at Sidhi impelled the Committee to transfer the complainant to Sidhi. However, in his cross-examination Justice Menon has accepted the pendency of cases at other places at which the complainant had sought her transfer by way of her subsequent representation [Ex. JIC/24] was even more than at Sidhi. But rejection of complainant’s two representations appears to unmindful of the hardships caused to the complainant.”

Justice Menon [JIC W. No.11] stated that since the District Judge had good reputation he did not make further inquiry. We are not convinced by the reasons stated by Justice Menon [JIC W. No.11]. The opinion expressed by the District Judge-Kamal Singh Thakur [JIC W. No.4] in Ex. JIC/14 might be based on surmises and conjectures. The Transfer Committee was required to satisfy the reasons regarding the correctness of the allegations made”

“On being questioned, as to why the Transfer Committee did not enquire into the correctness of the contents made in Ex. JIC/14 in order to know whether Ex. JIC/14 was an outcome of the prejudice District Judge-Kamal Singh Thakur [JIC W. No.4] against the complainant, Justice Menon [JIC W. No.11] stated that since the District Judge had good reputation he did not make further inquiry. We are not convinced by the reasons stated by Justice Menon [JIC W. No.11]. The opinion expressed by the District Judge-Kamal Singh Thakur [JIC W. No.4] in Ex. JIC/14 might be based on surmises and conjectures. The Transfer Committee was required to satisfy the reasons regarding the correctness of the allegations made.

The JIC added:

“Justice Menon deposed that normally when such a letter is received form the concerned District Judge, transfer orders are passed without seeking any explanation from the concerned officer. We are conscious that transfer is an incidence of service.Transfer of an officer is the absolute prerogative of the High Court, but it can be definitely said that a lenient view could have been shown in the case of complainant. Transfer of a judicial officer is the discretionary power of the High Court; however, it ought to have been exercised in light of guiding principles laid down in the transfer policy. The discretion exercised by the transfer committee in the present case is definitely an irregular exercise of power”. 

A terrible nexus

To establish the nexus between the judge accused of sexual harassment and Justice Rajendra Menon, the judge responsible for her transfer, the woman judge had summoned their respective call records between them for the relevant period. Calls were made immediately before and after she had sent her representations to the Committee establishing that Justice Menon was acting at the behest of the accused judge. Here is what the committee had to say about these calls:

“Certain conversations between respondent judge and Justice Menon at certain interval of time of which some conversations coincide with the processing of transfer order of the complainant and consideration of her representations.

The coincidence of call detail records between the respondent judge and Justice Menon, in time and space, and the rapidity of the events in processing the transfer of the complainant and quick rejection of her representations are suggestive of respondent judge’s interference with the complainant’s transfer and rejection of her representations of the complainant.”

 This is an incriminating comment on both the accused judge who interfered with the administration of justice and destroyed the career of a bright woman judge and Justice Rajendra Menon who seems to have acted at the behest of a colleague who was accused of sexual harassment.

Don’t reward the guilty

Justice Aniruddha Bose,who has an unblemished record of service to the judiciary is not “experienced enough”, surely he has no experience of being cross examined at the bar of justice as Justice Menon does, but does that disqualify him from being a Chief Justice of Delhi High Court after being recommended by the Collegium?

The woman judge in question resigned upon being forced to choose between her duty as a mother to her daughter and her bright career. While the enquiry was in progress, the judge accused of sexual harassment was not suspended form work. Those who gave evidence in favour of accused judge have been adequately rewarded by being made Chief justice.Now we will have Justice Rajendra Menon as Chief justice of the High Court which according to the Government is a“prominent” one, where matters of great Constitutional importance are argued and decided.

Justice Aniruddha Bose,who has an unblemished record of service to the judiciary is not “experienced enough”, surely he has no experience of being cross examined at the bar of justice as Justice Menon does, but does that disqualify him from being a Chief Justice of Delhi High Court after being recommended by the Collegium?

It is not too late. The Collegium should reconsider its recommendation for the Chief Justice of the High Court of Delhi and insist on its initial recommendation. It is high time the High Court should learn how to treat their own women judges

It is a great pity that the Collegium did not do its due diligence while withdrawing its own recommendation and accepting objections put forth by the Law Minister.Collegium judges did not have to do much, all they needed to do was to consult their colleague Justice Banumathi, or read the report which is in the public domain..

It is not too late. The Collegium should reconsider its recommendation for the Chief Justice of the High Court of Delhi and insist on its initial recommendation. It is high time the High Court should learn how to treat their own women judges. To begin with acknowledge that sexual harassment exists in the judiciary, next set up a Vishakha Committee where woman judges can complain of harassment by “brother” judges, and finally learn how to respect woman judges and throw out the guilty.

 

Also read: Woman judge sexually harassed by Madhya Pradesh High Court’s Justice Gangele files for reinstatement

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