Plea By Woman District Judge Who Resigned Alleging Sexual Harassment By High Court Judge: Supreme Court Lists For Final Hearing On 27th January

The Supreme Court on Friday decided to list the plea by a woman district judge who resigned from service after alleging sexual harassment by a High Court judge for final hearing on 27th January 2022.

A Bench comprising Justice Nageswara Rao and Justice BR Gavai issued the direction on Friday while considering a writ petition filed seeking reinstatement of a woman Additional District Judge (ADJ) who had to resign from the service in 2014  alleging sexual harassment by a sitting judge.

The Supreme Court had on earlier occasions suggested the Madhya Pradesh High Court to reinstate the petitioner. The High Court had also submitted before the Bench that the same may not be possible. In January this year, the Bench had asked the Madhya Pradesh High Court as to why it has not been acting on the court's suggestion, and had asked them to file a response.

During the hearing on Friday, the Bench at the outset asked the Counsel appearing for the Madhya Pradesh High Court if they have have decided to agree with the court's directions.

Advocate Arjun Garg appearing for the Madhya Pradesh High Court informed that there is no possibility of any amicable settlement in the matter and will have to be heard finally. He also sought an adjournment as the Senior Counsel appearing for the High Court is unwell.

Senior Advocate Indira Jaising appearing for the petitioner submitted that the High Court has filed an affidavit but the deponent is one of the junior most persons in the chain of authority in the Judiciary.

"What I'd have expected that someone senior, perhaps the Registrar to file an affidavit that this is the decision of the High Court. As of now we cannot tell if the affidavit filed has sanction of full court or whose sanction does it have. The deponent says he is incharge of the petition, nobody can be incharge or a petition. The decision has to be that of the CJ or the full court and there's no such statement in the affidavit", the Senior Counsel said 

The Bench however asked Senior Advocate Jaising to reserve her submissions for when the matter is heard.

Senior Counsel Jaising further pointed out that the State of Madhya Pradesh is the respondent and no response has been filed by them.

Advocate Mrinal Mazumdar for the State of Madhya Pradesh submitted that the affidavit was filed way back in January 2019

"You are speaking of an affidavit from 11th January 2019, Thereafter orders have been asked after that, what's your response to those orders, is what she is asking." Justice Rao said.

The Counsel for the State then submitted that she will take fresh instructions. However, the State will be adopting the submissions made by the High Court.

The Bench was considering an application filed by the petitioner seeking directions to the Madhya Pradesh High Court to consider and decide between the following two options:

• The Applicant may be reinstated in the State of Madhya Pradesh but thereafter be deputed outside the State to posts in Supreme Court, NGT, NCDRC, CAT etc., as per availability of vacancy.
• The Applicant may be reinstated in the States of Rajasthan or Himachal Pradesh as per her seniority of the year 2011, where she would not disturb the existing seniority.

The application states that the petitioner was an Additional District Judge in the Madhya Pradesh Higher Judicial Services since 2011 and when left with no alternative due to her illegal transfer and constant harassment, was constrained to tender her resignation on 15.07.2014, from her post as the Additional & Sessions Judge.

The petitioner has contended that her resignation is in substance and effect a constructive dismissal in violation of Article 311, Constitution of India, as also her Right to Equality, the Right to work without discrimination and the Fundamental Right to Practice any Profession or to Carry on any Occupation, trade or Business enshrined under Article 14,15 and 19(1) (g) of the Constitution of India.

The application filed through Advocate Astha Sharma has stated that the petitioner is a victim of harassment of an unconstitutional nature and wrongful termination, and through the instant petition, has sought reinstatement into the services with her seniority restored, so that she can continue to do her work with integrity and discipline for which she was known.

The petitioner has pointed out that the Supreme Court has on multiple occasions earlier suggested reinstatement of the applicant:

• A Bench of Justice A.K. Sikri, Justice S. Abdul Nazeer, and Justice M.R. Shah, on 13.02.2019, had suggested reinstating the Applicant on humanitarian grounds. However, the Court was informed that the Full Court of the High Court of Madhya Pradesh after reconsideration of the issue, decided to stand by its earlier decision of not allowing the reinstatement of the Applicant.
• A Bench headed by the CJI on 12.02.2020, with a view to bringing about a swift and amicable solution without wasting any further time on adjudication of merits, indicated during the course of oral hearing that the High Court of Madhya Pradesh, should reconsider its stand on the reinstatement of the Applicant herein and in alternate, that she could be accommodated in the District Judiciary in the any of the States, by maintaining her seniority and other such lawful service entitlements.
  
• On 14.07.2020, the Court had orally observed for the High Court to reconsider the case of the Applicant on the following issues –
  

(i) The Applicant may be reinstated in the State of Madhya Pradesh but thereafter be deputed outside the State to posts in Supreme Court, NGT, NCDRC, CAT etc., as per availability of vacancy.

(ii) The Applicant may be reinstated in the States of Rajasthan or Himachal Pradesh as per her seniority of the year 2011, where she would not disturb the existing seniority.

The applicant has argued that despite the directions of the Supreme Court, to arrive at an amicable settlement and to reinstate the Petitioner, who has been running from pillar to post since the past so many years, no progress was made, and no settlement has been arrived at.

Therefore the petitioner has sought appropriate directions against the High Court to consider the above two options, as considered by Supreme Court, and to take a decision accordingly.

The applicant has submitted that the Report of the Judge's Inquiry Committee 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 from Gwalior.

"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

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