Lady District Judge constrained to resign due to Sexual Harrasment to be reinstated, rules SC

 

The Supreme Court has directed the Madhya Pradesh High Court to reinstate a resigned woman Additional District Judge, who had alleged sexual harassment claims against a then sitting male Judge.

The single-judge bench of Justice L. Nageshwar Rao held that in fact and circumstances of the case, the resignation so granted cannot be 'construed as voluntary' and accordingly ordered her reinstatement and directed that she will not be entitled to backwages, but will be entitled to continuity in service with all consequential benefits.

The ADJ in the writ so filed has sought her reinstatement on the ground that her resignation was due to coercion.

She had alleged that her hostile transfer orders were passed as she didn't 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.

Supreme Court Observation 

The Court at the outset observed that it is restricting the scope of enquiry in the present matter and will only to examine few particular issues and clarified that it is not examining the correctness or otherwise of the decisions of the Full Court of the MP High Court.

" 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. There could be various factors and reasons which could have weighed with the Full Court of the MP High Court while rejecting the representation made by the petitioner in its resolutions dated 11th January 2018 and 15th February 2019. We have full respect for the authority of the Full Court of the MP High Court to arrive at such a decision. We are examining the present matter purely considering it as a lis between an employee and an employer, without in any way being influenced by the fact that one of the parties to the lis is the MP High Court on the administrative side, and the other one a Judicial Officer. We are of the considered view that the legal principles, which would 14 govern the dispute between an employer who is a State and an employee, will have to be equally applied in the present case, irrespective of the fact that one of the parties is a High Court and the other one is a Judicial Officer"

Referring to Food Corporation of India v. M/s Kamdhenu Cattle Feed Industries, the Court noted that no doubt that the said Transfer Policy is only a set of Guidelines for internal administration of the District Judiciary issued by the MP High Court. However, while exercising its functions on the administrative side, the MP High Court would also be a State within the meaning of Article 12 of the Constitution of India.

"Mere reasonable or legitimate expectation of a citizen may not by itself be a distinct enforceable right. It is further held that the failure to consider and give due weight to it may render the decision arbitrary. It has been held that the requirement of due consideration of a legitimate expectation forms part of the principle of nonarbitrariness, which is a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decisionmaking 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. It has been held that a bona fide decision of the public authority reached in this manner would satisfy the requirement of nonarbitrariness and withstand judicial scrutiny. It has been held that 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."

In view of the above, the Court remarked that when the Transfer Policy so framed by the MP High Court, even though not enforcable in law, should be given due weightage, when the cases of Judicial Officers for transfer are being considered.

The Court noted the below facts in the present case:

- in the agenda prepared for consideration of midterm transfers to be effected in the month of July 2014, again the petitioner’s name did not appear

- the depositions of the then Judge of the MP High Court, who was a Member of the Transfer Committee and that of the then RG of the MP High Court before the JIC, that the basis for the transfer of the petitioner was the complaint dated 3rd July 2014, addressed by the then D & SJ, Gwalior and the decision regarding transferring the petitioner to Sidhi, which is about 507 kms. away from Gwalior, was taken by the Transfer Committee on 7th July 2014, and was approved by the Competent Authority on the very same day

- the petitioners first representation was rejected within two days and second not considered 

-the transfer of the petitioner was effected midterm though she could have very well been transferred in general transfers, to be effected in MarchApril, 2014. Even in the agenda of the midterm transfers, which were to be effected on various grounds, 23 petitioner’s name was not included

The Court was of the view that the petitioner had a legitimate expectation of her representation being considered specifically in view of Clause 9(a) of the Transfer Policy. The Transfer Policy provides that on such representation being made, the RG shall obtain the comments of the District Judge within a week and on receiving his comments after necessary verifications, it was required that the matter should be placed before the concerned Portfolio Judge within a week, who was required to return the file within a period of one week thereafter, with his comments/opinion.

"Undisputedly, neither the procedure as prescribed under Clause 9 of the Transfer Policy of obtaining the comments from the District Judge and the Portfolio Judge were complied with, nor the Transfer Committee considered the provisions of Clause 9(a) of the Transfer Policy. When subclause (a) of Clause 9 of the Transfer Policy provided, that the case of a Judicial Officer for an extension should be considered if such Judicial Officer’s daughter (not son) was to appear for the final year of Board Examination or University Examination, and when such educational Institution where such daughter is studying, does not have hostel facility for girls, the petitioner had a legitimate expectation that the MP High Court would consider her request in accordance therewith"

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The Court added that not only that, such a concession of extension would have been available only if the District Judge certified that there is no hostel facility available in such educational Institution. It also further required the comments to be obtained by the RG from the District Judge and the Portfolio Judge of the MP High Court. From the perusal of the Transfer Policy, it is clear that total 3 weeks’ period is provided between the date of the receipt of the representation and the decision thereon. However, in the present case, within two days from the 24 submission of the representation, the Transfer Committee rejected the same without considering subclause (a) of Clause 9 of the Transfer Policy. It is a different matter that inviting comments from the District Judge would have been just a formality, inasmuch as the transfer was effected on his complaint itself.

It further noted that on rejection of her first representation, the petitioner addressed her second representation which was rejected on the ground that the earlier representation made on similar ground also stands rejected but both the representations of the petitioner are made with different requests.

"The petitioner had a legitimate expectation in view of Clause 10 of the Transfer Policy to have her case considered for posting at any of the 4 places in the event her request for retention at the then present posting was not considered and as such, she made the second representation. 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 proposal of the then RG was made in a casual manner and accepted by the then Judge on the Transfer Committee in a mechanical manner."

The Court stated that the transfer is sought to be justified in view of Clause 22 of the Transfer Policy and that the petitioner’s performance in the assessment made by the then D & SJ, Gwalior on 15th January 2014 for the assessment year 2013, has been found to be ‘very good’.

The Court rejected the claim that the transfer was made in public interest.

"As per the Transfer Policy, a Judicial Officer is required to be transferred from Category ‘A’ city to Category ‘B’ city, from ‘B’ to ‘C’, from ‘C’ to ‘D’ and from ‘D’ to ‘A’. However, in the case of the petitioner, the petitioner was directly transferred from Gwalior, which is Category ‘A’ city to Sidhi, which is Category ‘C’ city. The 4 cities which have been mentioned by the petitioner in her second representation are ‘B’ Category cities. Coupled with the admission that the transfer of the petitioner was effected on the basis of the complaint made by the then D & SJ, Gwalior, it is difficult to accept the contention on behalf of the MP High Court that the transfer of the petitioner was made in the public interest or in the interest of the administration."

 The Court referred to Kumari Shrilekha Vidyarthi Vs. State of U.P. & Ors, 1990 Latest Caselaw 296 SC wherein it was held that 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. It has been further held that 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 27 action as fair and reasonable, the burden on the person alleging arbitrariness must be held to be discharged. 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 equally settled that it is not for the courts to recast the policy or to substitute it with another which is considered to be more appropriate. It has been held that 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.

The Court held 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 .

On the other hand, Respondent No.1 has utterly failed to discharge its burden to prove its onus that petitioner's transfer order was fair and reasonable in the facts and circumstances of the case. On the contrary, the admissions made before the JIC by the then Judge on the Transfer Committee clearly show that the transfer was made solely on the basis of the complaint made by the then D & SJ, Gwalior without verifying the veracity thereof. Not only this, but it is evident that the then Judge had not looked into the annexures attached with the representation, which included the fee receipts etc. of the petitioner’s daughter, the Court added.

It then cited Kalabharati Advertising Vs. Hemant Vimalnath Narichania & Ors. , 2010 Latest Caselaw 636 SC to note that it is trite that the 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.

Referrence was also made to Somesh Tiwari v. Union of India and Others wherein it was held that 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. It has been held that 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.

The Court said that 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.

Citing Union of India and Others v. Dhanwanti Devi and Others, Regional Manager & ANR Vs. Pawan Kumar Dubey, 1976 Latest Caselaw 42 SC, the Court concluded that the resignation was coercive, without substance and it will have far reaching effects on the administration of judiciary is concerned.

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