'Resignation Can't Be Construed As Voluntary' : Supreme Court Directs MP HC To Reinstate Woman District Judge Who Raised Sexual Harassment Complaint Against HC Judge

Sohini Chowdhury

10 Feb 2022 5:14 AM GMT

  • Resignation Cant Be Construed As Voluntary : Supreme Court Directs MP HC To Reinstate Woman District Judge Who Raised Sexual Harassment Complaint Against HC Judge

    In a significant judgment, the Supreme Court on Thursday directed the Madhya Pradesh High Court to reinstate a resigned woman Additional District Judge, who had raised sexual harassment allegations against a then sitting judge of the Madhya Pradesh High Court.The Supreme Court held that her resignation, in the circumstances of the case, cannot be "construed as voluntary" and therefore quashed...

    In a significant judgment, the Supreme Court on Thursday directed the Madhya Pradesh High Court to reinstate a resigned woman Additional District Judge, who had raised sexual harassment allegations against a then sitting judge of the Madhya Pradesh High Court.

    The Supreme Court held that her resignation, in the circumstances of the case, cannot be "construed as voluntary" and therefore quashed the decision of the High Court to accept her resignation.

    While ordering her reinstatement as an Additional District Judge, the Supreme Court held that she will not be entitled to backwages, but will be entitled to continuity in service with all consequential benefits.

    The Court was delivering verdict in the the writ petition filed by a woman Additional District Judge (ADJ) seeking to be reinstated on the ground that her resignation was due to coercion.

    On 01.02.2022, a Bench comprising Justices L. Nageswara Rao and B.R. Gavai had reserved the judgment.

    The Supreme Court had earlier suggested to the Madhya Pradesh High Court to consider reinstating the petitioner. However, the Full Court of the MP HC took a decision that her request cannot be accepted.

    Today, Justice Gavai, before pronouncing the judgment, said : "We have not gone into the correctness of the resolution of the Full Court rejecting the representation. We have independently examined the material on record, assessed the transfer orders, the rejection of her representation and whether the resignation can be considered voluntary".

    Then Justice Gavai read out the operative portion of the judgment: "Writ petition is partly allowed.  We hold and declare that the petitioner's resignation from the post of ADJ cannot be construed to be voluntary and the order dated 17th July, 2014 passed by Respondent No. 2 accepting the resignation of the petitioner is quashed and set aside. The Respondents are directed to reinstate the Petitioner forthwith as ADJ, though the petitioner would not be entitled to back wages, should be entitled to continuity in services with all consequential benefits w.e.f. 15th July, 2014. No order as to cost".


    The petitioner alleged that hostile transfer orders were passed as she did not act as per the demands of the supervising High Court judge. She complained that was faced with transfer from a Category 'A' city to Category 'C' city and also a Naxal affected area, in violation of the extant transfer policy of the High Court. Since the transfer would have prevented her from being with her daughter who was then appearing for the board exams, she was faced with no option but to resign. Later, she approached the Supreme Court asserting her right to be reinstated.

    The petitioner had joined the Madhya Pradesh Higher Judicial Services in 2011. After her training, she was posted as an Additional District Judge. The respondent High Court Judge was in-charge of assessing the work of the petitioner.

    After resigning, on 01.08.2014, the petitioner sent a letter to the Chief Justice of India ("CJI"), inter alia, seeking consideration of the hostile circumstances under which she was forced to resign. On 09.08.2014, Chief Justice of MP High Court apprised the CJI, that he had constituted a two-member committee to look into the issue.

    The petitioner filed a Writ Petition before the Supreme Court challenging the constitution of the said In-House Committee and the Apex Court held that the Chief Justice of the High Court had exceeded the authority by delving into a more holistic determination than what was prescribed under the "In-House Procedure." Thereafter, the CJI constituted an In-House Committee. In its report dated 02.07.2015, it stated that the material was insufficient to establish the charge of sexual harassment, but ordered not to rely on its findings.

    On 04.03.2015, 58 members of the Rajya Sabha gave notice to the Chairperson of a motion for removal of the concerned judge under Article 217(1)(c) read with Article 124(4) of the Constitution of India on grounds of sexual harassment of a woman ADJ; victimisation of the ADJ for not submitting to his demands, by transferring her; misusing position as Administrative Judge of High Court.

    Accordingly, the Chairperson of Rajya Sabha set up a Judges Inquiry Committee ("JIC") presided by Justice R. Bhanumathi and comprising the then Chief Justice of the Calcutta High Court, Manjula Chellur and Senior Advocate, K.K. Venugopal(as he was then). On 15.12.2017, the JIC had submitted its report, wherein, inter alia, it had found the transfer order to be punitive, irregular, unjustified and not in the interest of the administration.

    "62.…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."

    According to the report, the interference of the respondent Judge with respect to the transfer was improper conduct, but not misbehaviour.

    "65. The interference of the respondent judge in transfer of the complainant may be an improper conduct. But the same will not amount to 'misbehavior' within the meaning Article 124 (4) read with Article 217 of the Constitution of the India."

    The petitioner, in 2017, made a representation to the MP High Court seeking reinstatement. It was rejected by a Full Court of the High Court. In 2018, she approached the Supreme Court seeking reinstatement and asserted that her resignation was not voluntary. A three-judge bench of the Apex Court asked the Full Court to reconsider their decision. The Full Court decided against reinstating. Again, on 12.02.2020, a bench headed by the then CJI asked the High Court to deliberate and arrive at a settlement. As the High Court, once again, decided not to reinstate, the CJI suggested that the petitioner could be reinstated; sent to another state; not claim any dues; but maintain seniority, which was not agreed upon by the High Court.

    Submissions made by Senior Advocate, Ms. Indira Jaising

    • The petitioner was coerced into resigning.
    • The petitioner was compelled to choose between her duties as a mother and a judicial officer, in derogation of Article 11 of CEDAW.
    • The JIC had concluded that there was insufficient material to hold the respondent Judge guilty, but did not find there was no sexual harassment.
    • The petitioner was transferred from Category 'A' to Category 'C' city; she was transferred in the same year her daughter was in for Class 12, in violation of the extant transfer policy.
    • Her transfer was an act of victimisation for filing complaint alleging sexual harassment.
    • The High Court and the State had tried to build a case of deficiency in performance of duties, but later changed the narrative to state that transfer was due to administrative exigencies.
    • The petitioner was not given a hearing before the Full Court.
    • An order of law can be challenged if it is shown that there is malice in law.
    • The present case is that of constructive discharge, which holds that if an employer commits a breach, the employee can treat this as constructive discharge.

    Submissions made by Solicitor General of India(who appeared for the Madhya Pradesh High Court)

    • The petitioner had never challenged the transfer order.
    • The petitioner did not challenge the findings of JIC, which indicated that there was no signs of sexual harassment.
    • In determining the transfer order, the JIC had exceeded its scope of inquiry.
    • Irregular transfer in itself does not indicate that the petitioner was coerced to resign.
    • Petitioner's resignation was based on impulsive reaction and would not meet the 'reasonable person' test.
    • Plea of coercion needs to be pleaded, asserted and established, which the petitioner could not establish.
    • Labour law doctrines cannot be applied to judicial officers.
    • Petitioner was not the only judicial officer who was transferred mid-term.
    • Coercion is to be proved and therefore cannot be decided in a Writ Petition.
    • To unsettle findings of JIC and Full Court a higher threshold of proof needs to be met.
    • The allegations were made after considerable delay.
    • The Supreme Court has limited scope to review decision of Full Court.

    Rebuttal Arguments put forth by Ms. Jaising

    • The petitioner had pursued her legal remedy in a bonafide manner - first before the JIC, then the Supreme Court.
    • The transfer is bad in law.
    • The petitioner was not required to show her intentions to resign. On the contrary, the burden was on the employer to justify the transfer, which was not met in the present case.
    • The other judicial officers transferred were not similarly situated.
    • JIC had the jurisdiction to make recommendations.
    • The respondents had stereotyped the petitioner by calling her emotional.

    [Case Title: X v. Registrar General And Anr. W.P. (C) No. 1137 of 2018]

    Citation: 2022 LiveLaw (SC) 150

    Case no.|date: WP(C)1137 OF 2018 | 10 Feb 2022

    Coram : Justices L. Nageswara Rao and BR Gavai

    Counsel: Sr. Adv Indira Jaising for petitioner, SG Tushar Mehta for respondents

    Head Notes
    Practice and Procedure - In some High Courts, a practice is followed, that whenever a Judicial Officer having good track record tenders his/her resignation, an attempt is made by the Senior Judges of the High Court to counsel and persuade him/her to withdraw the resignation. Valuable time and money is spent on training of a Judicial Officer. Losing a good Judicial Officer without counselling him/her and without giving him/her an opportunity to introspect and re­think, will not be in the interest of either the Judicial Officer or the Judiciary - It will be in the interest of judiciary that such a practice is followed by all the High Courts. (Para 86)

    Constitution of India, 1950- Article 32 and 226 - Judicial Review- 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. (Para 29)

    Constitution of India, 1950- Article 12- While exercising its functions on the administrative side, the High Court would also be a State within the meaning of Article 12 of the Constitution of India. (Para 39)

    Doctrine of legitimate expectation - Mere reasonable or legitimate expectation of a citizen may not by itself be a distinct enforceable right - The failure to consider and give due weight to it may render the decision arbitrary - The requirement of due consideration of a legitimate expectation forms part of the principle of non­-arbitrariness, which is a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh, what would otherwise have been the legitimate expectation of the claimant - A bona fide decision of the public authority reached in this manner would satisfy the requirement of non­-arbitrariness and withstand judicial scrutiny. (Para 40)

    Constitution of India, 1950- Article 32 and 226 - Judicial Review- The principle of fairness has an important place in the law of judicial review and that unfairness in the purported exercise of power can be such that it is abuse or excess of power. The court should interfere where discretionary power is not exercised reasonably and in good faith. (Para 40)

    Transfer Guidelines/Policy of the High Court of Madhya Pradesh - Transfer Policy may not be enforceable in law, but when the Transfer Policy has been framed by the MP High Court for administration of the District Judiciary, every Judicial Officer will have a legitimate expectation that such a Policy should be given due weightage, when the cases of Judicial Officers for transfer are being considered. (Para 41)

    Constitution of India, 1950 - Article 14 - There is a presumption of validity of the State action and the burden is on the person who alleges violation of Article 14 of the Constitution of India to prove the assertion - Where no plausible reason or principle is indicated nor is it discernible and the impugned State action appears to be arbitrary, the initial burden to prove the arbitrariness is discharged, thereby shifting onus on the State to justify its action as fair and reasonable. If the State is unable to produce material to justify its action as fair and reasonable, the burden on the person alleging arbitrariness must be held to be discharged. (Para 55)

    Constitution of India, 1950 - Article 32, 226 and 14 - Judicial Review - Arbitrariness - The limited scope of judicial review is only to satisfy that the State action is not vitiated by the vice of arbitrariness and no more - It is not for the courts to recast the policy or to substitute it with another which is considered to be more appropriate - The attack on the ground of arbitrariness is successfully repelled by showing that the act which was done, was fair and reasonable in the facts and circumstances of the case. (Para 55)

    Words and Phrases- "Legal malice" or "malice in law" - State is under the obligation to act fairly without ill will or malice — in fact or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. Where malice is attributed to the State, it can never be a case of malice or spite on the part of the State. It would mean exercise of statutory power for "purposes foreign to those for which it is in law intended". It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others. (Para 58)

    Service Law - Transfer - Normally an order of transfer, which is an incident of service should not be interfered with, unless it is found that the same is mala fide - Mala fide is of two kinds — one 'malice in fact' and the second 'malice in law'. When an order is not based on any factor germane for passing an order of transfer and based on an irrelevant ground, such an order would not be sustainable in law. (61)

    Constitution of India, 1950 - Article 14 - 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. (Para 66)

    Law of Precedents - A decision is an authority only for what it actually decides. Every judgment must be read as applicable to the particular facts, proved or assumed to be proved. The generality of the expressions found there, is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. (Para 93)

    Law of Precedents - The ratio decidendi is a rule deducible from the application of law to the facts and circumstances of a case and not some conclusion based upon facts which may appear to be similar. - One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts. (Para 94)

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