"Painful To See Sexual Harassment In Judiciary": Indira Jaising Seeks Reinstatement Of Resigned Woman Judge Who Complained Against HC Judge

The Supreme Court on Thursday began the final hearing of a plea filed by a woman Additional District Judge (ADJ) who resigned from service due to alleged sexual harassment by a sitting High Court judge and is now seeking reinstatement. 

A Bench comprising Justice Nageswara Rao and Justice BR Gavai heard the detailed arguments made by Senior Advocates Indira Jaising appearing for the petitioner and Solicitor General Tushar Mehta appearing for the Madhya Pradesh High Court. 

While Senior Counsel Jaising conclude her arguments today, SG Mehta will continue his arguments next week. 

While expressing concern regarding the absence of a mechanism within the judiciary to address the injustice caused due to sexual harassment, Senior Advocate Indira Jaising urged the Court to put in place such a mechanism.

"It's painful to see sexual harassment in the judiciary and that too without a mechanism to address the injustice caused. I'd urge your Lordships through your judicial marvel, to put in place the mechanism... this is not the first case of woman judicial officer facing sexual harassment", Jaising said.

She submitted that while she is concerned about the Judiciary as an institution, she is equally concerned about the position of women in the Judiciary.

Senior Counsel Jaising pointed out that the Supreme Court through its various judges has repeatedly said that they want to encourage women in the Judiciary and if that is the official declared policy of the top court, she doesn't see any legal hurdle in the grant of relief being granted.

Senior Advocate Jaising stated that it is true that the petitioner raised the allegations against the HC judge after the termination of her services; but even before that, she had been speaking to people about it and seeking meeting with the Chief Justice of the High court

She pointed out that there exists no written policy in place that a Judge can access to make a complaint of sexual harassment at the workplace.

She stated that there exist policies in place which enable employees to make a complaint of sexual harassment. As irony would have it, the petitioner was heading that committee appointed by the High Court to be the presiding officer to entertain complaints by employees of High Court against their co-employees relating to sexual harassment. There was no policy in place which enabled a judicial officer to make a complaint of sexual harassment against another judicial officer. This was a major limitation

"When one asks the question as to why she didn't complain, one has to understand that there's no complaint mechanism in place" Jaising remarked. 

She was compelled to resign: Jaising

While it's true that the petitioner had tendered her resignation which was accepted by the State, her resignation was coerced as she was compelled to resign, to choose between her duties towards her daughter and her career as a working woman. 

Petitioner Compelled To Choose Between Her Duties As a Woman and a judicial officer

Senior Counsel Jaising submitted that since the petitioner was compelled to resign, and to choose between her duties towards her daughter and her career as a working woman, her resignation wasn't voluntarily. It was coerced and hence is a deemed dismissal. Therefore, she is entitled to be reinstated.

She submitted that the petitioner's transfer was vindictive in relation to a woman judge and her child when the woman judge was only trying to educate her daughter.

"Are we a country which compels women judicial officers to choose between being a mother or career as a judicial officer ? My answer is no, as that will be unconstitutional", Jaising remarked

Inquiry Committee Said There Was Insufficient Evidence, Didn't say There was No Sexual Harassment: Jaising

Senior Counsel Jaising argued that the inquiry committee had concluded that there was insufficient material to hold the judge guilty of sexual harassment, but it did not say that there was no harassment

Transfer Order Issued In Violation of Transfer Policy: Jaising

Senior Counsel Jaising submitted that the order transferring petitioner was violative of the transfer policy and the Inquiry Committee had itself concluded that the order was illegal, unlawful & contrary to the transfer policy.

She pointed out that the transfer was contrary to transfer policy in 3 respects:

• The policy says in case of a Judge who has a daughter, studying in class 12 and the school doesn't have hostel facilities, the judge will not be transferred, as it is a board exam. The petitioner's daughter was in 12th and her school didn't have hosted facilities but the petitioner was still transferred hence so policy was violated.
• The petitioner was transferred from class A city to class C city which was a policy violation.
  
• Her representation to let her stay till the time her daughter completes 12th was rejected. Her second representation to at least transfer her from Class A to B city where there were colleges for her daughter was rejected. It has been argued that the second representation was rejected without even reading it as the rejection was on ground that the applications were made on identical grounds, when the two applications were completely different.

Petitioner Retired Out Of Sheer Frustration: Jaising 

Senior Advocate Jaising submitted that after both her representations were rejected, out of sheer frustration of choosing between her duties as a mother and a judicial officer she had to tender resignation.

It has been submitted that the petitioner had even put on record a very important factor that she was virtually a single mother taking care of the child as her husband was in Delhi, and she was therefore well within her rights for claiming an extension or be put to a class B city.

Not Inviting Finding From SC On Whether There was Sexual Harassment: Jaising

Senior Advocate Jaising submitted that as far as the issue of sexual harassment at workplace is concerned, the Inquiry Committee said that it has not been proved beyond a reasonable doubt. She argued that the Committee used a wrong standard of evidentiary appreciation of whether or not sexual harassment was proved.

However, she clarified that the petitioner has not invited a finding from Supreme Court on whether there was sexual harassment, and has only invited a finding in relation to the transfer being coerce and hence her right to be reinstated.

Petitioner's Record Has Been Exemplary: Jaising 

The petitioner's record has been exemplary, She headed the committee dealing with sexual harassment allegations, she was made head of the Vishakha committee, and there were no complaints.

Petitioner's Transfer An Act Of Victimisation Due To Complaint Of Sexual Harassment By Her: Jaising

She argued that the petitioner's transfer was an act of victimisation due to her complaint of sexual harassment. She pointed out that even their the petitioner hadn't made a written complaint but she had sought an audience with a High Court Judge.

Since there is no official declared procedure to file a complaint so she tried to find interlocutors

Senior Advocate Jaising further submitted that the High Court Judge who the petitioner met in this regard admitted that she and her husband spoke to him, however, he said that the petitioner didn't talk about sexual harassment.

"Please remember, there are women who don't use the word sexual very lightly. He did say that she went and spoke to him. A lot of time women don't use the word rape, they say 'usne mere sath bura kaam kia'" Senior Advocate Jaising said.

Petitioner Transferred Citing Pendency Of cases When There was More Pendency in other cities: Jaising 

Senior Advocate Jaising argued that the reason given to transfer her to the place where she was transferred was that there was huge pendency in that place. However, there was huge pendency in other cities also. Despite the fact there was no vacant position of an ASJ in that place, she was still transferred there.

Senior Advocate Jaising said that in these circumstances, the inquiry committee concluded she wasn't transferred for administrative reasons, and in that case, the order is bad in law and ex facie violates transfer policy.

High Court & State Tried To Make a False Case Questioning Her Job: Jaising 

Senior Advocate Jaising submitted that the High court and the State tried to make a case that the petitioner didn't know how to do her job when they placed records saying that she gave bail in wrong cases. However, thankfully the Supreme Court didn't take those documents on record as they were not brought on record earlier .

She further pointed out that the High Court later said that the petitioner was transferred due to administrative exigencies.

"If she didn't know how to grant bail, why was she put in-charge of crimes against women & children, special judge, etc. It is a belated attempt to deny her" Senior Advocate Jaising said

State Of MP Has Little or No Play In Current Proceedings: Jaising

Senior Counsel Jaising submitted that the state filed an affidavit adopting the High court's arguments.

"My comment would be, how do they have any personal knowledge about all this? They don't. It's  a matter between the administrative committee of the High Court and the person concerned. At best the High Court recommends acceptance of resignation and the state accepts it. Beyond that, no legal argument can be made by the state. The State has little or no play to play in the proceedings" She said

Petitioner Agreed To Be Posted To Any Other High Court: Jaising 

Senior Advocate Jaising submitted that the petitioner during the course of proceedings the petitioner agreed that she won't be paid for the time she wasn't on the job and even said  when asked if she would agree to be reinstated in any other High Court, given the language is not a problem

She further suggested that the petitioner may be reinstated and sent on deputation to any other court maintaining her seniority, and deputation is also possible in other organisations like NGT etc

Not Given A Hearing When Representations Made By Petitioner:  

She submitted that when the petitioner made representations to the High Court seeking reinstatement, she wasn't even given a hearing, and for that itself the transfer deserves to be set aside

She submitted that the petitioner's representations were rejected without giving reasons. Calling it blatant non application of mind, the Senior Counsel submitted that the 2 representations were on different grounds and reliefs claimed were different, yet they were rejected on grounds that they were identical grounds!

Propositions Relied On By Petitioner:

Senior Advocate Jaising submitted that she is relying on the proposition of law that an order of law can be challenged if it is shown that there is malice in law and if the transfer order is based on issues that are not germane to issues in hand.

She submitted that the present case is that of constructive discharge and the doctrine has great acceptance in the realm of Constitutional law. It holds that if an employer commits a breach, the employee can treat this as constructive discharge as there's a breach of responsibility.

She also submitted that there's a good faith doctrine operating in all service law. The Employee is entitled to treat the contract as repudiated and relief when there has been breach of statutory guidelines and there is coercion

Why Petitioner Should Be Reinstated?:

Calling the High Court and State's attitude highly alarming, Senior Advocate Jaising submitted that the petitioner's transfer was punitive and requires to be set aside.

Senior Advocate Jaising submitted that the petitioner should be reinstated as the transfer is violative of Article 14, 15 and 19 of the Constitution of India, it was vindictive in relation to a woman judge and her child, whose trying to educate her daughter.

Submissions By Solicitor General For Madhya Pradesh High Court: 

Transfer Order not Challenged: SG

The Solicitor General submitted that the transfer order was never challenged by the petitioner, neither in the past nor before the Supreme Court through the present writ petition.

According to him, the petitioner instead gave resignation and chose the path of making allegations which is why it becomes necessary to show how the allegations were dealt with.

According to the SG, the normal conduct of any petitioner, especially a Judicial officer would be to challenge the transfer order with all grounds raised in present proceedings belatedly, but the petitioner chose to make an allegation against a sitting Judge, which she's entitled to make.

SG pointed out that instead of challenging the transfer order, the petitioner tendered her resignation

"Judicial officers are not supposed to behave on emotional outbursts, it has to be balanced as only job of a judicial officer is to take decisions", SG said

"The transfer order could have been challenged but wasn't. Neither was the committee examining a challenge to the order nor is it before this court", SG said.

Report Of Inquiry Committee Still Binding: SG

The Solicitor General has submitted that the Conclusive Report of Enquiry committee which was constituted to inquire into allegations of the petitioner hasn't been challenged and therefore is legal and binding.

SG submitted that if the transfer is legal or not has not been challenged in the present case and the petitioner can succeed only if she can say that transfer was as a result of such a severe coercion

• Because of allegations of sexual harassment
• Because of severe work atmosphere. 

He added that both these issues have been dealt with by the committee.

Full Court's Decision Taken After Several Considerations: SG

Referring to the Full Court's decision to not reinstate the petitioner, the SG submitted that what the court is examining in the present case is the collective decision taken by the full court. However, he added that when a full-court decides something there are several considerations that weigh with them and they may not articulate them with intention of not stigmatising someone.

Sexual Harassment Allegations & Hostile Work Environment Non-Existent According to Committee's Report: SG

Referring to the Committee's findings, SG said that the two foundational facts made out for the reliefs are non existent namely: Sexual harassment allegations & hostile work environment.

He added that witnesses were examined, sitting judges deposed, evidence examined & then the report was made by the Committee.

"While Sexual harassment against any woman is very serious issue, the allegation not being found true is also a serious issue for administration of any organisation:, SG said 

Belated Allegations Made By Petitioner: SG

SG submitted that the petitioner didn't challenge the transfer order and now after 4 years is seeking reliefs from Supreme Court, after already failing to prove the sexual harassment allegations made by the petitioner.

According to the SG, an elaborate exercise was undertaken by the Committee, everything was considered. The committee was aware that the allegation made wasn't a contemporaneous allegation which is made long after alleged incident is alleged to have taken place

If Petitioner's Submissions Accepted, No Transfer Will be possible in any Establishment

SG submitted that if the Petitioner's argument that her transfer was due to a particular judge is to be accepted, it'll have to inevitably accepted that the Chief Justice and other judges on the Transfer Committee were so amenable and pliable that one judge could convince them to transfer.

"Any transfer can be found with some problem, if it is looked at microscopic level. Your Lordships aren't examining the transfer, but only if it was a good enough reason so as to construe resignation as coercive and if that finding is recorded that would be end of administration." SG said

"If someone says there's a problem with someone behaviour and suggests a transfer, that happens! That can't be grounds to say that resignation she gave was a coerce one. And If that's accepted no transfer will be possible in any administrative or judicial establishment." SG added.

Transfer Orders To Be Challenged in Accordance With Law:SG

SG submitted that in an administrative set up every officer has to challenge the transfer order it in accordance with law.

"You don't take route of sexual harassment to achieve object of getting transfer order set aside that too after having resigned0," SG remarked.

He added that many judges had to depose but the allegation of sexual harassment wasn't proved. The petitioner's case is that she informed a certain Judge about the sexual harassment, however, the same Judge said that she had met him to pay condolences on his brother's death.

"Allegation was that the High Court judge was making sure that she doesn't get a peon. It's too far fetched to accept that allegation that HC Judge was continuously talking to the District Judge that don't provide a peon to her", SG said.

Petitioner's Transfer Not Case Of Solitary Transfer: SG

SG submitted that the petitioner's transfer wasn't a case of solitary transfer and there were many officers who were transferred depending upon the exigencies, and for every one of them it was a mid term transfer

"It would be too much to believe that the High Court on its administrative side was so pliable that to transfer one officer it disturbed its entire judicial infrastructure and transferred several judges." SG remarked

Background: 

The petitioner has submitted that the Report of the Judge's Inquiry Committee(constituted by the Rajya Sabha) dated 15.12.2017, had recorded that the transfer of the Applicant (the Complainant) was punitive, irregular and unjustified and that the evidence suggested the role of extraneous factors in the transfer of the Applicant

It has been stated that the JIC further gave a finding that the resignation of the petitioner was under "unbearable circumstances" and she was left with no other option, thereby recommending, that the Petitioner be reinstated into service if she so desires for the same.

The Committee was constituted after the present petitioner had raised the allegations.

According to the committee's report, the complainant had contended that "the transfer was made solely to punish the petitioner and that on 10.07.2014, when she contacted him to plead to not go through with the transfer as her daughter was in Class 12, he responded by stating that she had not fulfilled his desires and that she had not visited his residence alone to meet you even once".

The Committee had held that the interference of the respondent judge is not proved to be on account of not submitting to his immoral demands.

It further said that the proceeding against the respondent judge being an impeachment proceeding, a higher standard of proof is required to hold that the respondent judge harassed the complainant and ensured that she be transferred.

"The protection given to a judge holding constitutional position has a purpose to serve. Removal of a judge on allegations like corruption or sexual harassment affects not only the judge personally but in a large sense affects the general reputation of the judiciary and, therefore, higher degree of proof is required," the Committee had said.

The Committee had found that the interference of the respondent judge in the transfer of the complainant may be improper conduct but the same will not amount to 'misbehavior within the meaning Article 124 (4) read with Article 217 of the Constitution of India

After the Committee's report, the petitioner had in 2017 made a representation to the Madhya Pradesh High Court seeking her reinstatement, however, her representation was rejected at a full court meeting of the High Court.

Case Title: X vs Registrar General & Anr