TaxTMI 
TaxTMI 
2022 (2) TMI 1495
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....as violative of Articles 14, 15, 16, 21 r/w. 233, 235 & 311 of the Constitution of India and Natural Justice; b. Issue an appropriate writ, order or direction in the nature of mandamus declaring that the Petitioner's resignation from the post of Additional District Judge VIII, Gwalior dated 15.07.2014 amounts to constructive dismissal due to the employer's conduct which applies in the Statutory context where the term "Dismissal/dismissed" is used; c. Issue an appropriate writ, order or direction in the nature of mandamus directing the reinstatement of the Petitioner as an Additional District and Sessions Judge from the date of her resignation i.e. 15.07.2014, with continuity in service at S. No. 134 of the list of District Judges(Selection Grade) of the Gradation List according to Clause 4 of the Madhya Pradesh Higher Judicial Services (Recruitment and Conditions of Service) Rules, 2017, back wages according to Clause 3(b) of the Madhya Pradesh Higher Judicial Services (Recruitment and Conditions of Service) Rules, 2017 and all service benefits and all consequential reliefs; 2. The bare minimum facts, necessary for adjudication of the present petition a....
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....4. 4. The Petitioner tendered her resignation on 15th July 2014, which was accepted by the Government of Madhya Pradesh, Law and Legislative Affairs Department on 17th July 2014. The Petitioner was informed about the acceptance of her resignation on 18th July 2014. 5. The Petitioner thereafter on 1st August 2014 sent a representation to Hon'ble the President of India, the Chief Justice of India, with a copy to Chief Justice of MP High Court, with the following prayer: (i) Appropriate action be taken, after fact-finding; (ii) Re-consider circumstances under which Petitioner was coerced & exerted duress upon, until the only option she had was to resign; (iii) Institute an appropriate mechanism for redressal of grievances like the above, of sub-ordinate services judicial officers. 6. Between 1st August 2014 and 18th December 2014, certain events took place with regard to the Inquiry into the alleged conduct of Justice 'A', which culminated in the judgment passed by this Court in the case of Additional District and Sessions Judge 'X'. v. Registrar General, High Court of Madhya Pradesh and Ors. (2015) 4 SCC 91. The said events are ....
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....dency of this petition, this Court passed an order on 13th February 2019, requesting the MP High Court for reconsideration of the issue of re-instatement of the Petitioner in service. The Full Court of the MP High Court rejected the said representation in its meeting held on 15th February 2019. The Bench of this Court, which had passed the order dated 13th February 2019, vide order dated 21st February 2019, expressed that the said Bench should not deal with the matter on merits and directed the matter to be placed before another Bench. It appears that thereafter again suggestions were made by this Court to the parties to amicably settle the matter. It appears that at one point of time, this Court also suggested that the Respondent No. 1 should re-consider the issue of Petitioner's re-instatement in service and that after re-instatement, she could be sent on deputation outside the State or she could be adjusted in some other State. It is the case of the Petitioner that though the said suggestion was acceptable to her, the MP High Court re-iterated its stand. In this background, the matter has come up before us. 11. At the outset, it is to be noted that, counsel for the Petiti....
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....ter is studying, does not have hostel facility for girls, the said Judicial Officer is permitted to stay over the prescribed period. She further submitted that the transfer of the Petitioner was also violative of Clause 16 of the Transfer Policy inasmuch as a Judicial Officer is required to first go from Category 'A' city to 'B' city, from 'B' to 'C', from 'C' to 'D' and from 'D' to 'A'. However, the Petitioner was directly transferred from Category 'A' city to 'C' city. The learned Senior Counsel submitted that the JIC, in its report, had clearly found the Petitioner's transfer to be contrary to the Transfer Policy. 15. Smt. Jaising further submitted that from the record, it is clear that the Petitioner's transfer was not made on administrative grounds, but on the grounds of the complaint made by the then D & SJ, Gwalior. It is submitted that the JIC had also found that the transfer of the Petitioner was made on the basis of the complaint made by the then D & SJ, Gwalior. It is submitted that the JIC had further found from the evidence of the then Judge, MP High Court, who was a Member of th....
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....lowed and the Petitioner be re-instated in service with continuity. 20. Per contra, Shri Tushar Mehta, the learned Solicitor General appearing on behalf of the Respondents submitted that the allegations made by the Petitioner with regard to sexual harassment are found to be not established by the JIC. He submitted that the said findings were recorded as back as on 15th December 2017, which were not challenged, and in any case, cannot be questioned or assailed in ancillary proceedings like the present one. 21. Shri Mehta further submitted that though, the findings of the JIC with regard to transfer of the Petitioner being irregular, are beyond the scope of its "Terms of Reference", at best, the transfer could be construed to be irregular. He submitted that assuming that the transfer order of the Petitioner was irregular and even mala fide, the same having not been challenged at the relevant point of time, the validity thereof cannot be challenged in the present proceedings. He submitted that the concept of "coercion resulting into resignation" is a concept, which is developed in the western countries with regard to labour jurisprudence, and that in any case, such reliefs can b....
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....garding re-instatement in service. He submitted that the observations made by the JIC with regard to the reinstatement of the Petitioner were beyond the scope of its "Terms of Reference" and as such, the Full Court of the MP High Court has rightly rejected the representation of the Petitioner. He submitted that if a unanimous decision taken by the Full Court of the MP High Court is interfered with by this Court, it will not only stigmatize the individuals manning the institution but the entire institution. 26. Shri Mehta submitted that the submissions, which he is making are not on the instructions of the MP High Court, but are being made by him as an Officer of the Court. He submitted that what is sought to be urged by the Petitioner is that the whole of the MP High Court as an Institution connived together and ensured to create such circumstances, that she had no other option but to tender her resignation. He submitted that if the Petitioner's contention is accepted, it will have catastrophic effects. 27. Shri Mehta submitted that the scope of judicial review by this Court of a decision of the Full Court of a High Court, is very limited. He submitted that this Court can....
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....e 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 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. 33. Though, arguments have been advanced before us with regard to constructive discharge and the reliance is placed on the judgments of Courts in United Kingdom and United States, we do not find it necessary to go into that issue. We are of the considered view that the law as enunciated by this Court with regard to scope of judicial review of a State action, would squarely cover the issue. 34. With this note, we proceed to examine the facts in the present matter. 35. No doubt that the JIC, in its Report dated 15th December 2017, has come to a clear finding that the transfer of the Petitioner was in contravention....
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....by the 15th of March every year and that the Judicial Officers shall be given time for joining up to the first day of April of the relevant year so as to coincide with the academic session; (iii) In accordance with Clause 5 of the Transfer Policy, the normal approximate tenure of posting at a place shall be three years; (iv) In accordance with Clause 7 of the Transfer Policy, for computing the tenure of posting of an Officer posted at a particular place, the period of 6 months or above shall be rounded off and treated as full year; (v) Clause 9 of the Transfer Policy carves out the exceptions in cases where an extension of tenure can be granted. Sub-clause (a) of Clause 9 specifies a ground, that such an extension would be available if a daughter (not son) of the Judicial Officer is studying at the place of his current posting, and is in the Final Year of a Board Examination or University Examination, and the educational Institution where such daughter is studying, does not have hostel facility for girls. It further provides that the said criteria are for the Officers seeking over-stay in Category 'A' places. It further clarifies that insofar as C....
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....ons mentioned above; (viii) Clause 14 of the Transfer Policy provides that the Judicial Officer, who is on deputation or holding an ex-cadre post, would be required to come back to the parent department after completing a maximum period of three years on such posting. It further provides that no extension on deputation shall be granted after a period of three years. However, the power of Chief Justice to grant extension of one year in exceptional circumstances is reserved; (ix) In accordance with Clause 16 of the Transfer Policy, a transfer takes place normally from Category 'A' to 'B', from 'B' to 'C', from 'C' to 'D' and from 'D' to 'A' or lower Category places; (x) In accordance with Clause 17 of the Transfer Policy, the Registrar General shall, by 15th of February each year, prepare a list of Officers, who will be completing their tenure/posting. It further provides that the Judicial Officers whose request for over-stay has been allowed will be excluded from that list and the Officers whose request for pre-mature transfer has been allowed, will be added to that list. The said Clause also ....
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....se of any doubt with regard to Policy or its implementation, the clarification issued by the Chief Justice will be treated as part of the Policy; (xviii) Clause 25 of the Transfer Policy provides that no representation against transfers ordered by the High Court will normally be entertained except on a serious ground, which did not exist on the date of the issuance of the order of transfer; (xix) Clause 26 of the Transfer Policy which is a non-obstante Clause provides that notwithstanding anything contained therein, the Chief Justice or on his behalf, a Committee of two senior Judges nominated by the Chief Justice, will have overriding powers to pass any order regarding the transfer or posting of any Judicial Officer at any time; (xx) Clause 28 of the Transfer Policy enables the Chief Justice to delegate his powers to any other Judge/Officer or Committee of Judges/Officers for implementation of the Policy/Guidelines. 38. It could thus be seen that the Transfer Policy incorporated by the MP High Court has provided in detail, the procedure that is required to be followed with regard to effecting the transfer of the Judicial Officers, their tenure at a pa....
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....ld have been the reasonable expectation of the applicant. Lord Scarman pointed out that "the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject-matter". Again in Preston, in re [1985 AC 835 : (1985) 2 All ER 327] it was stated by Lord Scarman that "the principle of fairness has an important place in the law of judicial review" and "unfairness in the purported exercise of a power can be such that it is an abuse or excess of power". These decisions of the House of Lords give a similar indication of the significance of the doctrine of legitimate expectation. Shri A.K. Sen referred to Shanti Vijay and Co. v. Princess Fatima Fouzia [(1979) 4 SCC 602 : (1980) 1 SCR 459] which holds that court should interfere where discretionary power is not exercised reasonably and in good faith. 40. It could thus be seen that this Court has held that 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 consid....
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....aken by the Transfer Committee on 7th July 2014, and was approved by the Competent Authority on the very same day. The said transfer order was conveyed to the Petitioner on the next day that is on 8th July 2014. 44. The Petitioner, on coming to know about her transfer order, made a representation on the very next day i.e., on 9th July 2014. In the said representation, the Petitioner had categorically stated that her elder daughter was a brilliant child, studying in Class 12th and was preparing for her Board and Competitive Exams at FIITJEE Coaching Centre, Gwalior. She further stated that her husband, due to compelling circumstances and for looking after his aged parents, had to stay in Delhi and practically, she had to play the role of both a father and a mother for her daughters and had to draw a balance between her profession and dependent children. She further made a request to the Competent Authority to allow her to stay in Gwalior till her daughter completes her Class 12th examination. The said representation was rejected within two days i.e. on 11th July 2014. The then RG made an endorsement to the following effect: Hon'ble the transfer Committee in its meeti....
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....tely after the receipt of the transfer order, the Petitioner made a representation on 9th July 2014, specifically pointing out therein that her daughter was studying in Class 12th and also undergoing FIITJEE coaching. The said representation was rejected within two days. 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. 47. 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. 48. When Sub-clause (a) of Clause 9 of the Transfer Policy provided, that the case of a Judicial O....
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....und also stands rejected. 50. 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 non-application 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. 51. The transfer is sought to be justified in view of Clause 22 of the Transfer Policy. One of the grounds on which the transfer could be made in mid-term, is that the performance of such Judicial Officer is found to be below the norms prescribed. The same is admittedly not available in the present case. 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'. That leaves us with the second ground available Under Clause....
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....ad made any representation and their representations were rejected in an identical manner. 54. At this juncture, we may refer to the following observations made by this Court in the case of Kumari Shrilekha Vidyarthi and Others v. State of U.P. and Ors. (1991) 1 SCC 212: 33. No doubt, it is true, as indicated by us earlier, that there is a presumption of validity of the State action and the burden is on the person who alleges violation of Article 14 to prove the assertion. However, where no plausible reason or principle is indicated nor is it discernible and the impugned State action, therefore, appears to be ex facie arbitrary, the initial burden to prove the arbitrariness is discharged shifting onus on the State to justify its action as fair and reasonable. If the State is unable to produce material to justify its action as fair and reasonable, the burden on the person alleging arbitrariness must be held to be discharged. The scope of judicial review is limited as indicated in Dwarkadas Marfatia case [(1989) 3 SCC 293] to oversee the State action for the purpose of satisfying that it is not vitiated by the vice of arbitrariness and no more. The wisdom of the policy or....
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....he case. We find that the Respondent No. 1 has utterly failed to discharge its burden. 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. 57. We may gainfully refer to the following observations made by this Court in the case of Kalabharati Advertising v. Hemant Vimalnath Narichania and Ors. (2010) 9 SCC 437: 25. The State is under 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. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the Sta....
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.... the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the Appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal. 61. This Court has 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 andbased on an irrelevant ground, such an order would not be sustainable in law. 62. At the cost of repetition, we may say that though it is the case of the Respondent No. 1 that the transfer order of the Petiti....
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.... whether her case fits in Clause 9(a) of the Transfer Policy. The Petitioner was entitled for consideration of her case on the ground that her daughter was to appear in the final year of Board Examination. The Petitioner had specifically stated that her daughter was also undergoing FIITJEE coaching. She had further clearly stated that after her daughter completes the academic year, she was willing to abide by the transfer order. However, in the noting of the then RG, it was mentioned that "it is gathered that adequate educational facilities including CBSE School are available at Sidhi". It is further stated that the Transfer Committee, in its meeting held on 7th July 2014, had recommended the transfer of the Petitioner on administrative grounds after considering the request of the then D & SJ, Gwalior with regard to conduct and behaviour of the Petitioner. On the said proposal, the then Judge on the Transfer Committee had directed the representation of the Petitioner to be rejected. As such, it could be seen that the Respondent No. 1 had not at all taken into consideration as to whether the Petitioner's case was required to be considered Under Clause 9(a) of the Transfer Policy....
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....he rejection of the representations of the Petitioner dated 9th July 2014 and 11th July 2014, would also not stand the scrutiny of law. 67. That leaves us with the next issue as to whether the Petitioner's resignation dated 15th July 2014, could be considered as a voluntarily one. 68. The resignation of the Petitioner reads thus: It is most respectfully submitted that I am unable to continue my services as Additional District and Sessions Judge. As I have been transferred to Sidhi, in the mid academic session of my daughters studying in Class III and Class XII, it affected mostly the crucial stage of career of my class XII daughter. Therefore I am left with no option but to resign from my post. I hereby resign from the post of Additional District and Sessions Judge and I am ready to submit my salary as per Rules and clear all my dues, if any. I humbly request your kind self to please accept my resignation and relieve me with immediate affect and oblige. 69. It is sought to be urged on behalf of the Respondent No. 1, that the said resignation is voluntary, acted upon by the authority and thus, there was severance of relationship betwe....
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.... daughters were taking education at Gwalior. One of them was in Class 3rd and the other one was studying in Class 12th and was also undergoing FIITJEE coaching. Since her husband was required to be in Delhi on account of professional and personal commitments and also that he had to look after his aged parents, the Petitioner had to draw a balance between her duties as a Judicial Officer and as a mother. 76. Till 8th July 2014, everything was smooth but on the said date, came the transfer order transferring her to Sidhi, which was at a far away distance of 507 Kms. from Gwalior. Taking shelter Under Clause 9(a) of the Transfer Policy, the Petitioner made a representation to the MP High Court on the very next day, requesting the Respondent No. 1 that she be retained at Gwalior, at least till her daughter completes her Class 12th education, but the same was rejected within a short period of two days. She made her second representation on 11th July 2014, requesting the Respondent No. 1 to give her alternate posting at any of the 4 cities mentioned therein, where her daughter could continue with her education. All the 4 cities were Category 'B' cities. In normal circumstances....
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....daughter's educational prospects and career coming into jeopardy, if she shifted to the place of posting at Sidhi. A possibility of her mind engrossed with a feeling, that she was subjected to injustice by the very Institution of Judiciary, cannot be ruled away. What was she asking for? A retention at Gwalior for a period of 8 months till her daughter completes her Class 12th. In the alternative, posting at any of the 4 cities, which were admittedly in Category 'B', where her daughter could have better education facilities, and where the vacancies existed. 80. Denial of her legitimate expectation could have led to desperation, exasperation and frustration. The frustration of the Petitioner is evident from the language used by her in her resignation letter. She stated that as she had been transferred to Sidhi in the mid-academic session of her daughter's Class 12th, it had mostly affected the crucial stage of career of her daughter. She stated that therefore, she was left with no other option but to resign from her post. It appears that in a gruesome battle between a mother and a Judicial Officer, the Judicial Officer lost the battle to the mother. 81. Reaction....
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....ade with an intention of relinquishing the office accompanied by an act of relinquishment." In the ordinary dictionary sense, the word "resignation" was considered to mean the spontaneous relinquishment of one's own right, as conveyed by the maxim: Resignatio est juris proprii spontanea refutatio (Black's Law Dictionary, 6th Edn.). In Corpus Juris Secundum, Vol. 77, p. 311, it is found stated: It has been said that 'resignation' is a term of legal art, having legal connotations which describe certain legal results. It is characteristically, the voluntary surrender of a position by the one resigning, made freely and not under duress and the word is defined generally as meaning the act of resigning or giving up, as a claim, possession or position. 8. In P.K. Ramachandra Iyer v. Union of India [(1984) 2 SCC 141 : 1984 SCC (L&S) 214] this Court had an occasion to consider the nature and character of a letter written by one of the Petitioners in that case who after stating in the letter that he has been all along patiently waiting for the redressal of his grievance, yet justice has not been done to him and as such, after showing so much patienc....
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....ment of the office and some action is required to be taken on such communication of the intention to relinquish, e.g., acceptance of the said request to relinquish the office, and in such a case the relinquishment does not become effective or operative till such action is taken. As to whether the act of relinquishment of an office is unilateral or bilateral in character would depend upon the nature of the office and the conditions governing it. 9. In traversing the contention on behalf of the Appellant that the letter in question dated 9-1-1999 could not be construed as a letter of resignation, on behalf of the Respondent hospital authorities it is strenuously contended that such a letter coming from the Appellant in the teeth of suspension order and proposed domestic enquiry expressing a desire to tender resignation and that too with immediate effect, cannot but be a resignation outright and simpliciter to avoid facing disciplinary proceedings and that, therefore, the competent authority acted well within its rights in treating it to be a resignation and accepting the same forthwith and as a consequence thereof, directing further not to proceed with the domestic enquiry a....
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....t appears to be reasonable to view that as in the case reported in P.K. Ramachandra Iyer [(1984) 2 SCC 141 : 1984 SCC (L&S) 214] the Respondents have seized an opportunity to get rid of the Appellant the moment they got the letter dated 9-1-1999, without due or proper consideration of the matter in a right perspective or understanding of the contents thereof. The High Court also seems to have completely lost sight of these vital aspects in rejecting the writ petition. 84. The facts in the above case are somewhat similar to the present case. The present case is also not a case where it is required to consider as to whether the relinquishment envisaged under the Rules and Conditions of Service, is unilateral or bilateral in character. In the present case also, the words "with immediate effect" in the resignation letter could not be given undue importance, dehors the context, tenor of language used therein, indicating the circumstances in which it was written. The resignation letter in the present case, as has already been discussed hereinabove, appears to be on account of exasperation and frustration actuated by a thought, that injustice was being meted out to her by the very Inst....
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....rtunity to introspect and re-think, will not be in the interest of either the Judicial Officer or the Judiciary. We find that it will be in the interest of judiciary that such a practice is followed by all the High Courts. 87. We are therefore of the considered view that in the peculiar facts and circumstances of the case, the Petitioner's resignation dated 15th July 2014, could not be construed to be voluntary. In any case, immediately in a fortnight, on 1st August 2014, the Petitioner had made a representation to Hon'ble the President of India as well as the Chief Justice of India, with a copy to the Chief Justice of the MP High Court for reconsideration of the circumstances under which, she was left with no option but to resign. Though, it may not be possible to observe that the Petitioner was forced to resign, however, the circumstances enumerated hereinabove, would clearly reveal that they were such, that out of frustration, the Petitioner was left with no other alternative. 88. It is contended on behalf of the MP High Court that the Petitioner, who was on probation, had voluntarily tendered her resignation, which was accepted and as such, led to an irrevocable s....
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....case, could be construed to be voluntary or not. We have not at all gone into the question, regarding the correctness or otherwise of the decisions of the Full Court of the MP High Court with regard to the rejection of the Petitioner's representation. As already discussed hereinabove, there might be reasons and factors which might have weighed with the Full Court of the MP High Court for taking such a decision. At the cost of repetition, we reiterate that we have full respect for the authority of the Full Court to arrive at such a decision. As such, there is no question of stigmatizing the Full Court of the MP High Court. It is a different matter, that if the suggestions made by this Court on more than one occasion would have been accepted, the exercise of examining the factual scenario, could have been avoided. In any case, we have restricted our inquiry only to the facts, which we found necessary to decide the present case. We have refrained ourselves from going into the details of the findings of the JIC, so as to protect the dignity of all concerned. We have refrained ourselves from mentioning a single name in our judgment. 92. In that view of the matter, the contention ....
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.... would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the Rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts. The ratio decidendi is a Rule deducible from the application of law to the facts and circumstances of a case and not some conclusion based upon facts which may appearto be similar. It has been held that one additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts. 95. As has already been discussed hereinabove, we may reiterate that we have decided the present matter only on the basis of the peculiar facts and circumstances, as are found in the present matter. We do hope, that in future, similar facts would never arise for consideration, at least in a lis between a High Court and a Judicial Officer. However, we may r....