Senior Advocate Indira Jaising today argued before the Supreme Court that the resignation tendered by a woman judicial officer, who quit in 2014 after alleging sexual harassment by a Madhya Pradesh High Court judge, was forced pursuant to a mala-fide transfer order.
The bench of Justices L. Nageswara Rao and B. R. Gavai was hearing the plea filed by the former woman judicial officer from the State of Madhya Pradesh who tendered her resignation after a transfer order was passed by a full court bench of the High Court. Jaising is appearing for the woman judicial officer seeking reinstatement.
Forced resignation amounts to constructive discharge: Senior Advocate Indira Jaising
The Senior Advocate argued that forced resignation amounted to “constructive dismissal” and could not be treated as a formal resignation. “Such resignation does not amounted to a resignation in law but is a constructive discharge. An employee has a right in law to expect good faith from the employer and due compliance with rules and procedures in the matter of her employment. A breach of faith, namely the faith that rules, regulations, and guidelines will be complied with gives rise to a right in the employee to terminate the contract in view of the antecedent conduct of the employer. Such a termination does not amount to a resignation voluntarily given,” she said.
She cited the Bombay High Court judgment in the case of R.D.Surve v. Tata Iron and Steel Co. Ltd., Bombay (1987 Mh. L.J. 1089) vide a Single Judge Bench elaborated on the meaning of forced resignation as that when the employer secures resignation of his employees by force or against his will. Such a resignation amounts to discharge or dismissal.
Further, she has elaborate the “Constructive Discharge Doctrine” by citing various important case laws and judgments from the Court of Appeal of United Kingdom and US court of appeals. “The Court of Appeals of United Kingdom in the case of Western Excavating (ECC) Ltd Vs Sharp (1978 ICR 22), vide a bench of Lord Denning M. R., Lawton and Eveleigh E.JJ laid down the Principles of constructive discharge and relied on the breach of contract as one of the reasons that amount to constructive discharge of an employee,” she stated.
She submitted that the elements of contract test in the above case and the principles summarised for Constructive discharge in case of Lewis v. Motorworld Garage (1985 WL 311068) are satisfied in the present case as the non following of the Transfer Policy and the rejection of multiple representations led to a significant breach of the essential terms of the contract between the Petitioner/judicial officer as an employee and the High Court as an employer. The Petitioner/judicial officer complained and did leave immediately in face of an illegal transfer made in contravention to the Transfer Policy that guided her terms of service. In this effect, she was constructively discharged.
Further, she has submitted that not only has there been a breach of contract but given that the Petitioner was a public servant, she was protected by Article 311 of the constitution of India, and the transfer ending in her resignation amounts to constructive dismissal. “The High Court is an arm of the State, not only is it expected to perform on the administrative side in accordance with contractual obligations, but also in accordance with constitutional obligations and keep the trust and the faith of a public servant that all rules and regulations and guidelines will be implementing,” she added.
Transfer orders which led to forced resignation violative of Article 15: Jaising
She argued, the High Court in transferring the Petitioner has discriminated against the Petitioner based on sex and thus violated Article 15. It is common knowledge that women are the primary caretakers of their children. Petitioner was resident of Gwalior for the purpose of taking up public office of an Additional District Judge, and her two daughters and elderly parents resided with her. Being the primary caretaker, she had to meet the requirements of her discharging the duties of a public office as also discharge the role of a mother in nurturing her daughters through their education.
“By transferring the Petitioner, the HC has not only acted illegally in violation of the transfer policy but also compelled the Petitioner to resign and make an unreasonable decision namely to choose between her right to work and her obligation as a mother. It is therefore submitted that the discrimination is based on sex,” said the Senior Advocate.
Further she submitted that, the Administrative Committee of the High Court has violated Article 15 of the Constitution of India in as much as the Petitioner has been discriminated on the basis of sex in that she was denied an opportunity to educate her daughter in Gwalior and compelled to choose between her parental obligations and her career. A hostile work environment was created which violated the provision of Article. The transfer was also violative of Article 14 as it was manifestly arbitrary, leading to her coerced resignation, being left with no choice. It also violated her right to work under Article 19(1)(g) of the Constitution of India which protected her right to employment under the State. The transfer order being a deemed dismissal also violates Article 311 of the Constitution of India.
Hostile work environment and institutional failure
On this aspect learned Senior Counsel has argued that it is a matter of record that before the JIC, charges were framed on the question whether the Petitioner was sexually harassed by the Respondent judge. While it is true that the JIC held that sexual harassment was not proved beyond reasonable doubt, it does not follow that the sexual harassment did not take place.
She has cited the judgments from the US Court of appeals laid down in case of Goss v. Exxon (747 F 2nd 885), wherein hostile work environment is defined. In case of Pennsylvania State Police v. Nancy Drew Suders (542 US 129), the US Supreme Court, elaborated on this doctrine as follows: to establish “constructive discharge,” the plaintiff must make a further showing: She must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response.
She submitted that irrespective of the allegation of sexual harassment, the Petitioner was suffering in a hostile work environment while under the employment of the Respondent High Court. With the blatant disregard to the Transfer Policy and her representations, the Petitioner’s forced resignation pursuant to such hostile work environment is constructive discharge.
Constructive dismissal of the Petitioner is violative of Articles 14, 15, and 16 of the Constitution
Senior Counsel submitted that the said discrimination leading to her mala fide transfer and resignation amounts to a constructive dismissal and hence she is entitled to reinstatement. The order dated 25-01-2018 of the full court of Madhya Pradesh violate Article 14 and 15 in that they are arbitrary, flying in the face of evidence and findings recorded by a competent authority which has come to the conclusion that the transfer order is bad in law. Further transferring her to a location which has no facilities for the education of her daughter, in the teeth of the rules to the contrary has violated 14, 15, and 16 of Constitution in as much that she has been denied equality before law, equal opportunity in public employment and is therefore unconstitutional and bad in law.
“The petitioner is entitled to get the relief she is asking for. The resignation is a constructive discharge. My case is that there is not only violation of transfer policy and breach of my fundamental right under Article 14, 15, 16 and 19, my “Right to Work”. Her “Right to work” explicitly covered by the Constitution of India,” Jaising concluded by saying that this is classic case where woman was forced to choose between a work and family life.
In rebuttal, Solicitor General of India Tushar Mehta argued that there are three preliminary facts, entire petition is on challenge to transfer order which was never challenged before. She had tendered her resignation. She had chosen a path of making allegations which was dealt by a committee comprising Supreme Court judge justice R Banumathi (now retired), the then chief justice of the Bombay high court Manjula Chellur, and senior advocate KK Venugopal (now Attorney General), which was tabled in the Rajya Sabha in December 2017.
“Her writ petition would succeed in two circumstances, If the allegations she had made are true and second if there were hostile work atmosphere which forced her to resign,” he said.
Further, the SG submitted that the order of transfer is not a subject matter of challenge before this Court and neither challenged before. The transfer was a result of severe coercion as there was allegation of sexual harassment and hostile work environment at work place. The committee has dealt with it. Ultimately, my lords are examining the judicial decision by a full court. I have no objection to it, my lords can examine it. She made Annonoymous complaints against the Civil judges as what was noted in the report of the Committee by which the working of the judiciary was severely affected which necessitated her transfer, in July 2014. Eventually she had resigned in July 2014. She should have challenged that. Later there was in-house Committee was constituted by the then CJI RM Lodha consisting of CJ of Delhi High Court, AllahabadHC and Madhya Pradesh High Court. The allegations of sexual harassment were made first time in her complaint to the Chief Justice of India in year 2014, after her resignation. This is not the case of Solitary Transfer, there were 24-27 judicial officer who were transferred by the Transfer Committee and it was the mid-way transfer.
Thereafter, the bench adjourned the hearing till Tuesday.
Recently, in its affidavit the Madhya Pradesh High Court has turned down the plea to reinstate woman judge while stating an “amicable solution of the matter is not possible”.
Following an inquiry in 2017, the high court judge was given a clean chit in the sexual harassment case but the woman judicial officer’s sudden transfer was held to be unjustified, prompting her to seek her job back through a petition in the top court.
Her petition cited the report submitted by the inquiry panel constituted by the Rajya Sabha into her accusations of sexual harassment against a high court judge, who has since retired.
The inquiry panel was set up in 2015 after 58 members of the Rajya Sabha gave a notice to move a motion to impeach the high court judge.
The report by the committee, comprising Supreme Court judge justice R Banumathi (now retired), the then chief justice of the Bombay High Court Manjula Chellur, and Senior Advocate K.K. Venugopal (now Attorney General), was tabled in the Rajya Sabha in December 2017.
The three-member committee in its report had concluded, “that it emerges that the decision of the transfer committee to transfer the complainant from district Gwalior to district Sidhi was based on the recommendation sent by the then district judge Kamal Singh Thakur [JIC W. No. 4] who had his own reasons to believe that the complainant (i) was habitual of making unnecessary complaints regarding her staff and non-allocation of substitute staff; (ii) she did not use to behave cordially with other Judges, especially with the Civil Judges; (iii) she made anonymous complaints against the District Judge and other Judges publicly stating that unlike the previous District Judge, administrative skills of the present District Judge were not adequate, and thus, she should be transferred to some other place. 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.”