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MP ex-woman judge can’t allege sex harassment, resign, get transfer order set aside: HC to SC

Ex-woman judge wants job back, but MP HC opposes plea. Solicitor General Tushar Mehta says on its behalf that transfer could've been challenged on judicial, administrative grounds.

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New Delhi: The Madhya Pradesh High Court Thursday cautioned the Supreme Court from entertaining the plea of a woman judicial officer who quit in 2014. The woman had made sexual harassment allegations against a sitting HC judge at the time, and now wants her job back.

The woman, a former judge who worked in the Madhya Pradesh subordinate judiciary, claimed she was forced to resign due to the hostile work conditions she faced at the workplace, which included her sudden transfer to a conflict area, after she refused to give in to the “illegal demands” of the HC judge.

Appearing for the HC, Solicitor General of India Tushar Mehta said if the top court accepts the woman’s submission that she was forced to resign because she did not succumb to certain “illegal demands”, then it would be impossible for any administrative set-up, civil or judicial, to carry out administrative work, especially since a parliamentary inquiry panel absolved the HC judge, now retired, of harassment charges in December 2017.

Mehta further attacked the former judicial officer’s petition, saying she should have either honoured the transfer or challenged it on the judicial side. But one cannot be allowed to take a “route of sexual harassment allegations to achieve the object of getting the transfer order set aside, that too after having resigned,” he said.

Mehta’s statement was part of his counter to the judicial officer’s arguments that were advanced before a bench of justices L.N. Rao and B.R. Gavai Thursday. 

Senior advocate Indira Jaising opened the hearing on behalf of the woman petitioner and demanded her reinstatement. Jaising in her statement insisted the woman judge chose to resign because she was “coerced” to do so.

Also read: 3 yrs, 17 hearings, but no SC decision on reinstating MP woman ex-judge who was ‘harassed’

HC had rejected SC’s advice

The woman judge had, in October 2018, moved the top court with a plea to reinstate her in service. She based it on the finding of a parliamentary inquiry panel that was set up to look into the sexual harassment allegations against the then-sitting HC judge. Though the committee absolved the judge of harassment charges, it found evidence to suggest that he had a role in the woman judge’s transfer, which it termed as “punitive”.

Twice, the SC had advised the Madhya Pradesh HC to settle the matter amicably and consider the woman’s plea to give her job back and depute her to any state or central quasi-judicial body. The HC was also asked to explore the possibility to transfer her to another state after reinstating her.

However, on both the occasions, the HC had declined the suggestion. Its latest response came last week, in which the HC registrar ruled out an amicable resolution. Since the hearing in the case remained inconclusive, the court is likely to take it up again next week.

Wrong route of petition, says Mehta

Mehta rebutted the woman judge’s contention that she was “picked up (singled out) because she did not succumb to certain illegal demands and was suddenly midway thrown out”.

According to him, the grounds set out in her petition before the SC could have been grounds either to challenge the transfer or submit a representation against it on the administrative side.

“The enormity of the situation has to be examined. The transfer, possibly in the given set of facts, may be irregular. But to give rise to a contention of sexual harassment and justify the resignation as a forced resignation in any administrative set-up would make it impossible to conduct administration,” Mehta said.

The parliamentary panel had, in its report, held there was no administrative exigency to post the woman judge out of Gwalior, where she was serving when the transfer orders were issued. It also held the transfer appeared to be not in the interest of administration.

According to Mehta, such a finding could have been recorded in a validly-instituted petition to challenge the transfer, and not “when one is taking a route of making an allegation of sexual harassment and victimisation at workplace.”

The solicitor argued that transfers happen in all HCs and the same cannot be a ground to tender a resignation. The woman judge, he pointed out, took the plea of coerced resignation in 2018, after the sexual harassment charges made by her were proven false the previous year.

Every transfer, Mehta contended, can be found to be faulty. “Therefore, I urge your lordships not to examine the validity of the transfer order, but whether the transfer order was good enough a reason to construe resignation as a coercion,” he submitted. But then he added a word of caution: “If that (latter) finding is recorded, it will be the end of administration.”

Mehta stated that judicial officers are not expected to react or behave on the basis of emotional outbursts and the decision taken has to be balanced. “..because the only job of a judicial officer is to take decisions,” he added.

‘Never confronted with allegations’

Presenting her case, Jaising disclosed that the former woman sessions judge was transferred on the basis of a superior district judge’s letter, in which he accused her of filing frivolous and false complaints against him. Jaising claimed the woman judge was never told or confronted with the allegations before she was transferred. Details regarding the district judge’s letter were revealed only before the parliamentary inquiry panel.

Mehta defended the letter being kept under wraps and said chief justices of HCs receive such letters from those who are at the helm of affairs. However, such letters are not made public to avoid stigmatisation of the officer, who is charged of insubordination or delinquency, he said. 

If required, the woman officer could have raised this argument in her petition to challenge her transfer order, but not in a “subterfuge way, (like) it is being done here”, Mehta said.

(Edited by Saikat Niyogi) 

Also read: Rajya Sabha panel gives MP high court judge clean chit in sexual harassment case


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