THE Supreme Court, earlier today, directed the Madhya Pradesh High Court to reinstate forthwith the woman Additional District Judge (ADJ) who had resigned from service in 2014 alleging sexual harassment by a High Court judge.
A division bench of Justices L. Nageswara Rao and B.R. Gavai held the resignation tendered by the woman ADJ not voluntary and thus set aside the acceptance of resignation.
The bench also directed that the judge would be entitled to her seniority but she would not be given back wages.
On December 15, 2017, a three-member Judges Inquiry Committee [JIC] set up by the Chairperson of the Rajya Sabha, comprising the then-Supreme Court judge Justice R. Banumathi, the then Chief Justice of the Calcutta High Court Manjula Chellur, and senior advocate K.K. Venugopal, to probe into charges of sexual harassment alleged by the woman judge against the then judge of Madhya Pradesh High Court Justice S. K. Gangele, found, in its 135-page report, that the woman judge’s transfer from Gwalior district to Sidhi district was punitive.
“The transfer committee committed an irregularity on solely relying on the recommendation of district judge Kamal Singh Thakur and without making any verification or enquiring on the same, was not justified in transferring the complainant in mid-session. Equally unjustifiable was the rejection of her representations. Transfer of the complainant also does not seem to be in the interest of the administration and, in our view, it was punitive”, the Committee said in its report.
The ADJ was transferred from Gwalior, a category ‘A’ city to Sidhi, a category ‘C’ city, in violation of the Transfer Guidelines of the High Court. These guidelines also make provision for the deferment of a judicial officer’s transfer, if they have a daughter studying in the final year of school or university, and the said educational institution does not have any hostel facility. At the relevant time of her transfer, the ADJ had a daughter studying in the XIIth standard, and the school did not have hostel facilities.
The JIC held that although the charge of sexual harassment was not proved “beyond reasonable doubt”, the transfer was “irregular, hurried, and punitive”. It also recommended that “she has to be reinstated” if she so wishes.
Following the report of the JIC, the ADJ on December 21, 2017 made a representation to the Madhya Pradesh High Court seeking her reinstatement. At a full court meeting of the high court, the representation to reinstate her was rejected.
In 2018, the woman judge moved the Supreme Court seeking her job back, raising the question of the forced resignation by her following her complaint of sexual harassment against a sitting judge of the High Court. In her petition, the woman judge has argued that she was forced to put in her papers as a consequence of her being unlawfully and in a mala fide manner transferred to a conflict area for not bowing to the immoral demands of a Madhya Pradesh High Court judge. She contended her resignation was forceful dismissal.
In addition, she argued that she was made to choose between her duties as a judicial officer and the career of her daughter.
Senior advocate Indira Jaising, who has been representing the woman judge, had argued that a resignation given under duress and coercion, while working in a hostile work environment, cannot be voluntary. During the previous hearings, she pointed out to the multiple attempts that had been made by the ADJ before she resigned, in the form of her representations along with her efforts to meet with the Chief Justice of the Madhya Pradesh high court in hope of a solution so that the education of her daughter was not compromised.
Jaising argued that such forced resignation is to be deemed termination because there was a breach of the implied mutual trust and confidence between an employer and an employee. Such resignation, Jaising contended, cannot be held to be “voluntary”, but rather due to the behaviour of the employer.
Jaising also pointed out that the State was to be a model employer, and that the State had violated her right to non-discrimination based on sex and her right to work in an environment free from sexual harassment.
Acting on her plea, on February 13, 2019, a three-judge bench of the Supreme Court comprising Justices A.K. Sikri, S. Abdul Nazeer and M.R. Shah directed the full court of the Madhya Pradesh High Court to reconsider the reinstatement of the petitioner. However, the High Court decided against her reinstatement. It was of the view that the petitioner voluntarily tendered the resignation and the same was accepted, leading to irrevocable severance of the relationship of the employee and the employer.
The matter came up for hearing again on February 12, 2020, before a bench headed by the then Chief Justice of India [CJI] S.A. Bobde, when he orally asked the High Court’s lawyer and the petitioner’s lawyer to sit and discuss the matter to arrive at a settlement, and directed for the matter to be listed on March 3, 2020.
The matter thereafter was heard on July 17, 2020, when the High Court informed the Supreme Court that reinstatement would not be possible. CJI Bobde had then suggested that she could be reinstated and sent to some other state without claiming any dues for the intervening period, and maintaining her seniority. The petitioner agreed to this suggestion. However, the high court’s views remained the same that the petitioner could not be reinstated.
The Court then finally heard the matter on merits last week.
In his submission, the Solicitor General of India [SG], Tushar Mehta, for the High Court, argued that mere irregularity in the transfer cannot be a ground to claim that she was tormented, and had to resign. Even if the transfer order was mala fide, can she be allowed to stigmatize the entire institution, he asked. “She had remedies available after the transfer. Her impulsive reaction can’t be a ground to invite apex court’s intervention”, he told the court. “Judicial officers are discharging sovereign functions; they can’t be compared with workmen … Judicial officers can’t take impulsive decisions (like resignation on account of transfer)”, he added.
The SG then asked what prevented the petitioner to make all the allegations, such as coercion, intolerable pressure, and so on, prior to her resignation. She had the opportunity to vent her problems when she called on senior judges, he suggested.
Elaborating further, the SG asked the bench to follow the “reasonable person acting test”, while examining the allegation of coercion. He, therefore, suggested that the ‘egoist – how dare you’ test cannot be applied in this case. The test to be applied, he submitted, should not be that of an impulsive, hyper-sensitive and arrogant individual. Allegations like coercion and intolerable pressure can stigmatize the entire institution of the judiciary, he added.
A detailed story shall follow after the Supreme Court’s order is available on its website.
