IN A SIGNIFICANT RULING, the Orissa High Court directed the reinstatement of an Additional Civil Judge (Junior Division)-cum-S.D.J.M. after finding that her resignation from the post was not voluntary and that it had been given under a compelling situation and duress.
A Division Bench comprising Justices Manash Ranjan Pathak and Sibo Sankar Mishra was ruling on a petition filed by judicial officer Ipsita Mohanty, a mother of a child suffering from autistic spectrum disorder (ADHD), whose representation seeking permission to remain at Bhubaneswar for two more years so that she could obtain proper treatment for her autistic son was not considered by the administrative side of the Orissa High Court.
On February 2, 2015, the petitioner joined the Odisha Judicial Service and was posted at Bargarh. On March 9, 2017, she was posted as J.M.F.C. at Puri. Seven months thereafter, the petitioner was posted as Civil Judge-cum-J.M.F.C. at Madanpur-Rampur in the district of Kalahandi. On May 9, 2019, the petitioner was posted as Civil Judge (Junior Division)-cum-J.M.F.C. at Chandikhol. On October 26, 2019, the petitioner was posted as J.M.F.C. at Bhubaneswar.
The petitioner has a son who is 15 years old now and who, since 2016, has been suffering from autistic spectrum disorder (ADHD). He is unable to speak and suffers from many health issues, including a neurological disorder and hyperactive self-harming behaviour such as self-biting. The petitioner requested that she be allowed to stay on at Bhubaneswar headquarters for treatment of her autistic son. The High Court Committee, on February 19, 2020, posted the petitioner again as a J.M.F.C. and posted her at Bhubaneswar (outskirts).
While the petitioner was serving at Bhubaneswar, the health condition of her son was improving because of such treatment, rehabilitation and therapies at home as well as at private institutes. On March 17, 2022, the petitioner requested the High Court to allow her to remain at Bhubaneswar for two more years so that she could obtain proper treatment for her autistic son.
However, the High Court Committee concerning transfers did not accept the request of the petitioner and decided to transfer her as Additional Civil Judge (Junior Division)-cum-S.D.J.M. and posted her at Hindol on July 16, 2022. The petitioner, nevertheless, joined at Hindol. The posting of the petitioner at Hindol resulted in deterioration in the health condition of her son due to the lack of required treatment facilities there.
Later, on September 5, 2022, the petitioner sent a representation to the Registrar (Administration) of the High Court submitting that if her child could not be provided with the required treatment and therapy in time he would suffer irreparable loss, and that she should therefore be allowed to work at the Headquarters Station at Bhubaneswar for a period of two and a half years so that she could provide medical facilities and the required therapy to her autistic child. The petitioner was never informed of the decision taken on her representation.
Faced with a choice between her office and the health of her son, the petitioner was forced to resign on November 29, 2022. The resignation was put up before the Chief Justice of the High Court. It was also pointed out to the Chief Justice by the registry that the petitioner had made a representation on September 5, 2022, stating that she be transferred from Hindol to the Headquarters Station of Bhubaneswar for a period of two and a half (2 & ½) years on the ground of treatment of her autistic son, and that on October 20, 2022 the Committee concerned (Standing Committee) discussed and deferred the said representation of the petitioner dated September 5, 2022, which remained pending for final consideration.
On December 5, 2022, the Chief Justice directed the registry to place the resignation of the petitioner before the Full Court. On December 20, 2022, the Full Court decided to accept the resignation of the petitioner and directed the Registry to move the State Government for approval of the Governor of Odisha for its acceptance.
On December 21, 2022, the petitioner withdrew her resignation, stating that, as per the advice of the doctor who treats her autistic son, she had been informed that her autistic son would require continuing long-term treatment and therapy and that, for that purpose and for the future of her autistic son, she required to continue in service.
In spite of her request not to accept her resignation, the State Government, by way of a notification on the recommendation of the Full Court, accepted the resignation of the petitioner on January 2, 2023. It was this notification, which the petitioner challenged before the High Court.
High Court’s reasoning:
The High Court examined the original files and found:
The letter dated December 21, 2022 withdrawing the resignation was received by the High Court on the same day;
The letter withdrawing resignation was put up before the Chief Justice of the High Court the next day;
Since the Full Court on December 20, 2022 had already resolved to accept the resignation, the Chief Justice of the High Court directed a meeting of the Full Court for consideration of withdrawal of the resignation of the petitioner and directed the registry to place the said matter in the meeting of the Full Court of the High Court of Orissa for consideration;
That neither the registry nor any authority concerned informed the Law Department of the State Government regarding the letter of withdrawal of resignation by the petitioner;
That by this inaction, the then Chief Justice of the High Court of Orissa, along with the Registrar General of the High Court, kept the State Government as well as the Governor of the State in the dark with regard to subsequent developments;
When the registry on January 2, 2023 placed the matter before the Chief Justice regarding the letter withdrawing resignation, the Chief Justice directed the registry that, as in the meanwhile the Government in the Law Department of the State, on the recommendation of the High Court dated December 20, 2022, had issued the impugned notification dated January 2, 2023 relieving the petitioner from Government service with immediate effect, the Chief Justice unilaterally directed the registry that the matter concerning the officer’s request for withdrawal of her resignation need not be placed before the Full Court.
The High Court had argued that since the petitioner’s resignation had already been accepted by the Government on January 2, 2023 with immediate effect, there was virtually no scope for consideration of the subsequent representation of the petitioner regarding withdrawal of her resignation.
On facts, the Bench found that on the date of issuance of the notification accepting resignation by the Governor on January 2, 2023, the petitioner was in Government service under the provisions of the Odisha Judicial Service Rules, 2007 and was serving at Hindol under the Judgeship of Dhenkanal, and that she was relieved from Government service with effect from January 3, 2023.
The Bench found “it is clear that the under compelling situation and duress the petitioner had to submit her resignation on 29.11.2022. Firstly, the authority concerned of the opposite Party No. 2 did not finally disposed of the representation of the petitioner dated 05.09.2022. Secondly neither the Opposite Party No. 1 as well as 2 did not deny the fact that there is lack of provision to provide proper medical facilities and treatment and requiredtherapy to a children suffering from Autism either at Dhenkanal or at Hindol or in their nearby areas. They also did not deny that there are no properly trained Therapists at Dhenkanal or at Hindol or in their nearby areas of to provide required therapy to a child suffering from Autism for which the petitioner could not provide the required treatment and therapy to her said autistic son, after her transfer to Hindol since July 2022 due to which health condition of the petitioner‘s son deteriorated. For the reasons above we are of the view that the resignation of the petitioner dated 29.11.2022 was not voluntary at all and it was under compelling situation and duress.”
In the meantime, the family court on January 11, 2023 dissolved the marriage of the petitioner.
The Bench opined that “the material change in the circumstances which originally compelled the petitioner to tender her resignation on 29.11.2022 including the facts that the petitioner submitted a detailed representation before the Registrar (Administration) of this High Court through the District and Sessions Judge, Dhenkanal requesting the authority concerned to transfer her to the Headquarters station at Bhubaneswar for a required period of two and half (2 & ½) years for treatment of her autistic son, though in spite of her best efforts, she failed to provide proper medical treatment and required therapy to her only autistic son in her working place at Hindol due to lack of proper medical treatment facilities of a child suffering from autism and owing to non-availability of properly trained therapist to provide required therapy to an autistic child at Hindol or at Dhenkanal and its nearby areas since her transfer from Bhubaneswar in July 2022 for which his health condition deteriorated. For those reasons she requested the authority concerned to consider her case sympathetically and compassionately and to allow her to work in the Headquarters Station at Bhubaneswar in any post as per her eligibility for two and half (2 & ½) more years for treatment of her said autistic son. But the committee concerned did not give any heed to the petitioner‘s said representation dated 05.09.2022, nor considered it nor answered it or disposed of it finally”.
The Bench relied upon the decision of the Supreme Court in Ms. X v. Registrar General, High Court of Madhya Pradesh and another, wherein the Supreme Court had directed the reinstatement of an Additional District Judge who was compelled to resign as she had to opt between her duties as a judicial officer and as a mother.
“Here in this case, the petitioner was the lone person to look after her autistic son, who failed to provide proper medical treatment and therapy due to lack of such medical facilities at Hindol, Dhenkanal and nearby areas to treat a child suffering from autisim. The petitioner‘s representation dated 05.09.2022 was never responded by the authority concerned (Standing Committee of the High Court), which was deferred by the said Committee on 20.10.2022 and was not considered even before the Full Court‘s recommendation dated 20.12.2022”, the High Court ruled.
The Bench ordered reinstatement of the petitioner forthwith as Additional Civil Judge (Junior Division)-cum-S.D.J.M., but declined to give any back wages. However, the Bench ordered that the petitioner would be entitled to continuity of her service since January 3, 2023 with all other consequential service benefits.