Additional District and Sessions Judge 'X' versus Registrar General, High Court of Madhya Pradesh and others [December 18, 2014]
2014 Latest Caselaw 802 SC

Additional District and Sessions Judge 'X' Vs. Registrar General, High Court of Madhya Pradesh and others

[Writ Petition (Civil) No. 792 of 2014]

Jagdish Singh Khehar, J.

1. The present writ petition has been filed by a former Additional District and Sessions Judge of the Madhya Pradesh Higher Judicial Service. The factual narration in the writ petition incorporates allegations of sexual harassment aimed at the petitioner, at the behest of a sitting Judge of the High Court of Madhya Pradesh (herein after referred to as, 'the High Court'), who has been impleaded by name as respondent no.3.

The authenticity of the allegations levelled by the petitioner, which have been expressly disputed by respondent no.3, would stand affirmed or repudiated only after culmination of due process. Such being the sensitivity of the matter, it would be inappropriate to disclose the identity either of the petitioner or of respondent no.3. In the title of the present writ petition, as also in its contents, the petitioner has been described as Additional District and Sessions Judge 'X'. We shall refer to her as Addl.D & SJ 'X'. This would help to preserve the dignity of the petitioner. Insofar as respondent no.3 is concerned, since he is a sitting Judge of the High Court, his reputation deserves a similar protection, we shall refer to him as Justice 'A'.

2. The averments made in the writ petition reveal that the petitioner having practiced as an advocate for fifteen years at Delhi, applied for appointment by way of direct recruitment to the Madhya Pradesh Higher Judicial Service. On the culmination of the process of selection, the merit list of the selected candidates was released on 22.3.2011. The petitioner was placed at serial no.2 in the merit list. She was accordingly appointed as District Judge (entry level) by the Madhya Pradesh State Legal and Legislative Works Department, vide order dated 8.7.2011. She was deputed for training on 30.7.2011 and was posted as Additional District and Sessions Judge, Gwalior.

3. The contents of the writ petition are systematically divided into various components. In the first part of the writ petition, the petitioner endeavours to demonstrate her efficient discharge of duties. For this, reliance has been placed on an order passed by the Sessions Judge, Gwalior dated 9.10.2012 (while exercising powers under Sections 408 and 409 of the Criminal Procedure Code ), whereby all sessions cases, criminal appeals, criminal revisions and miscellaneous criminal cases etc. pending in the Court of the 2nd Additional Sessions Judge, were transferred to the Court of the petitioner.

Relying on the above order, it is the petitioner's contention, that her superiors immediately recognized her professional caliber, and afforded her an opportunity to deal with the important and sensitive cases. On 23.1.2013, the Sessions Judge, Gwalior, nominated the petitioner for regular hearing and expeditious disposal of heinous and sensational cases involving offences of rape, gang-rape, rape with murder etc. under the Indian Penal Code. It is further brought out, that on 9.4.2013, the petitioner was appointed as the President of the Vishaka Committee (in compliance with the directions issued by this Court in Vishaka v. State of Rajasthan, (1997) 6 SCC 241), by the District and Sessions Judge, Gwalior. It is also pointed out, that the High Court (in exercise of the power vested in it under Section 6(2) of the Madhya Pradesh Dekaiti Aur Vyapaharan Prabhavit Kshotra Adhiniyam, 1981) appointed the petitioner as "Special Judge" for dealing with matters falling in a defined area within the territorial jurisdiction of Gwalior Sessions Division.

It is pointed out that again, through a notification dated 10.5.2013 (in exercise of the power under Section 9(3) of the Code of Criminal Procedure), the High Court designated the petitioner as "Presiding Officer" for speedy trial of offences of rape, gang-rape, murder with rape and other related offences. It is also the case of the petitioner, that the petitioner's performance came to be evaluated by the District and Sessions Judge in a report dated 5.1.2013. It is submitted, that thereafter in April 2013, the District Judge (Inspection and Vigilance) inspected the civil and criminal records and assessed the petitioner's performance.

4. The factual position with respect to the selection and appointment of the petitioner has not been disputed. The fact that the petitioner was assigned different responsibilities from time to time is also acknowledged. It is not necessary for us to record the personal assessment made by the petitioner on the basis of the afore-stated reports, suffice it to state that in the reply filed before this Court on behalf of the Registrar General of the High Court (respondent no.1), it is acknowledged that even though her disposal was assessed as - average, her overall performance was graded as - very good 'B'. It was further pointed out, that even though the petitioner was advised to improve inter-personal relationship and team work skills, her overall assessment was evaluated as - 'very good'.

5.

(i). The next component of the writ petition is devoted to the allegations levelled against respondent no.3 - Justice 'A'. It is asserted, that on 8/9-12-2013, the wife of the Chief Judicial Magistrate, Gwalior called, the petitioner on her land line. During her conversation, she informed the petitioner, that respondent no.3 - Justice 'A', was eager that the petitioner should perform a dance on an "item-song", on the occasion of ladies sangeet (on 10.12.2013) during the festivities of the 25th marriage anniversary of respondent no.3. It is also the assertion of the petitioner, that she politely refused the invitation for 10.12.2013 by giving out that she had prior commitments, for that date.

It is sought to be asserted by the petitioner, that for reasons of official protocol, she felt compelled to attend the main marriage anniversary celebrations scheduled for 11.12.2013. It is pointed out, that she ventured to do so in the company of her two daughters. It is alleged by the petitioner that on 11.12.2013, respondent no.3 - Justice 'A' came close to her and whispered in her ear, that he missed the opportunity of viewing her sexy and beautiful figure dancing on the floor. It is the petitioner's assertion, that respondent No.3 also told the petitioner, that he wished he could see her dancing. The petitioner claims that she was appalled by the above behaviour of respondent no.3, and therefore, she left the party along with her two daughters, with tears in her eyes.

(ii). The factual position narrated above, pertaining to the telephonic conversation with the wife of the Chief Judicial Magistrate, Gwalior has been denied by respondent no.3. For this, respondent no.3 has appended the affidavit of the wife of the Chief Judicial Magistrate, Gwalior as Annexure R-16 with his counter-affidavit. In her affidavit, it is inter alia asserted, that she had neither called the petitioner on 8/9-12-2013, nor had she told the petitioner that respondent no.3 - Justice 'A' was eager to watch her perform a dance on an "item-song".

The other assertions at the behest of the petitioner, narrated in the foregoing paragraph have also been denied by respondent no.3. It is the pointed contention of respondent no.3, that there was no occasion for him to personally interact with the petitioner on 11.12.2013. It is also the assertion of respondent no.3, that the function of 11.12.2013 was video-graphed, which shows that the petitioner enjoyed her dinner and was seen talking to other invitees.

(iii). Addl.D & SJ 'X' has also asserted, that in January 2014, respondent no.3 had sent messages to her through the District Registrar, asking the petitioner to meet him, at his residence. It is the contention of the petitioner, that knowing that respondent no.3 - Justice 'A' usually lived alone, she avoided going to his residence. As per the understanding of the petitioner, thereafter respondent no.3 started showing abnormally high interest in her work, and also started making sexually coloured remarks, at her. Illustratively, referring to the occasion of a marriage party of a judicial officer on 22.2.2014, it is asserted, that respondent no.3 in the presence of the petitioner's 16 years old daughter, told her that "although your work is very good, but you are far more beautiful than your work".

It is contended, that he further went on to say, that looking at the petitioner, one does not desire, even to blink ones eyes. It is averred, that the above remarks were made, while respondent no.3 - Justice 'A' sized up the petitioner from head to toe. It is also the pointed assertion of the petitioner, that while making the above remarks, respondent no.3 - Justice 'A', put his hand on her back. It is sought to be asserted, that the above behaviour of respondent no.3, discomforted the petitioner as well as her daughter. It is also pointed out, that the petitioner indicated to respondent no.3, that his advances were not welcome. Thereafter, the petitioner along with her daughter, left the marriage party.

(iv). The factual position as recorded in the foregoing paragraph has been denied by respondent no.3 in the counter-affidavit filed by him. It is also asserted, that respondent no.3 did not even meet the petitioner, at the aforesaid marriage party. It is sought to be asserted in the counter- affidavit filed on behalf of respondent no.3, that he is in possession of the videography of the marriage function in question, which can be produced by him.

(v). Another instance referred to by the petitioner in the writ petition, relates to a farewell party organized by the District Judiciary, on the occasion of the retirement of a Judge from the Gwalior Sessions Division. It is asserted, that all sitting Judges of the Gwalior Bench of the High Court, had been invited. On the said occasion, it is asserted, that respondent no.3 - Justice 'A', continuously stared at the petitioner. The petitioner claims, that sensing the attitude of respondent no.3 and given his past conduct, the petitioner left the farewell party before respondent no.3 could make any advances at her.

6. In the counter-affidavit filed on behalf of respondent no.3, the facts narrated in the foregoing paragraph have been expressly denied. It has been asserted, that respondent no.3 had never inter-acted with the petitioner personally, except when the petitioner had herself made three calls to him for her own problems.

7.

(i). The next component of the narration in the writ petition deals with the consequences which the petitioner had to suffer for not responding to respondent no.3 - Justice A's advances. First and foremost, it is asserted, that respondent no.3 started subjecting the petitioner to intense surveillance and harassment, in his capacity as Administrative Judge of Sessions Division, Gwalior from April 2014 onwards. It is submitted, that the aforesaid surveillance/harassment was effectuated through the District Judge, the District Judge (Inspection), and the District Registrar.

It is pointed out, that the District Judge and the District Judge (Inspection) visited the petitioner's court room with unusual frequency. Sometimes, on an hourly basis. At times, within a few minutes of her commencing court work. Sometimes, minutes after her rising for lunch. At other times, minutes after her resuming court work after lunch. And also after the petitioner had risen at the end of the day's work. It is also asserted, that the District Judge, Gwalior would depute his staff to check the petitioner during court working hours. On certain occasions, this happened even during in-camera trials.

When deputed by the District Judge, his staff, at times, would even snatch board-diaries of cases pending in her court. It is the petitioner's contention, that no fault could ever be found insofar as the discharge of duties and the responsibilities of the petitioner were concerned. It is the contention of the petitioner, that all these inspections were not carried, for the purpose contemplated under the Madhya Pradesh Rules (Criminal) Inspection of Criminal Courts (for short, 'the Rules'). Relying on Rule 703 of the Rules, it is asserted, that these actions were only for harassing the petitioner.

(ii). In the context of harassment, it is also averred in the writ petition, that the petitioner availed casual leave in May 2014, to attend a family event in New Delhi. During the above leave period, a stenographer attached to the petitioner's court, was posted elsewhere for a full day, on the instructions of the District Judge. It is pointed out, that this was done despite the express request made by the petitioner to the Court Manager, that the concerned stenographer had to type several judgments, which the petitioner had dictated, before proceeding on leave.

Even otherwise, it is pointed out, that according to the orders of the District Judge (dated 25.4.2014), such posting is permissible only for half a day. On account of the above interference in the discharge of her official functioning, the petitioner addressed a complaint dated 12.5.2014 to the District Judge against the Court Manager. In her complaint, the petitioner also highlighted the fact that the Court Manager usually refused to provide alternative staff to the petitioner, when staff attached to the petitioner was on leave. According to the petitioner, rather than taking action against the Court Manager, the District Registrar issued a notice to the concerned stenographer, asking him to show cause why he had not disclosed the extent of pending dictation work, with reference to the petitioner's court.

The concerned stenographer was asked to file his reply, within three days. It is averred, that the petitioner again approached the District Judge on the above issue. Rather than appreciating the predicament of the petitioner, the District Judge informed the petitioner, that if she said anything, he would spoil her confidential report. It is also averred, that the District Judge advised her to make a complaint to the Administrative Judge (respondent no.3) if she had any problem with the system. According to the petitioner, given aforesaid circumstances, she contacted respondent no.3 - Justice 'A' on his mobile phone on 30.5.2014. Respondent no.3, it is averred, informed her, that he could not speak to her as he was not in station.

(iii). Another instance of harassment and victimization pointed out by the petitioner emerges from the fact, that the peon provided to the petitioner at her residence was diagnosed with a likelihood of cancer on 12.5.2014. The concerned peon sought leave for treatment, at Mumbai. Despite several oral requests, no substitute was provided to the petitioner. Therefore, on 20.5.2014, the petitioner sent a letter to the District Judge, Gwalior, requesting him to provide a peon at her residence, out of the surplus staff. Even though the petitioner was entitled to a full time peon at her residence, on 22.5.2014, the District Judge made provision for a temporary peon for two hours (from 9 a.m. to 11 a.m.).

(iv). In order to further demonstrate victimization, it is pointed out, that the petitioner was suddenly and unceremoniously transferred mid- session on 8.7.2014. It is further pointed out, that general transfers are made every year, in March/April. It is the case of the petitioner, that when annual general transfers were made in 2014, the petitioner had not completed the stipulated tenure of service, and accordingly, was not subjected to transfer. Mid-session transfer, according to the petitioner, is almost impermissible, and as such is extremely rare, and is effected only for compelling reasons. In order to demonstrate the assertion of victimization, it is pointed out, that the petitioner was transferred to Sidhi, a remote place in Madhya Pradesh.

According to the petitioner for her posting, Sidhi was deliberately chosen, to prevent her husband from visiting her on week ends, because of its non-connectivity. It is also pointed out, that Sidhi was chosen because the area is well known to be naxal affected and it would be difficult for the petitioner to work, at that station. It was also pointed out, that the said transfer was in violation of the transfer guidelines/policy of the High Court. (guidelines/policy appended to the petition, as Annexure P-27). On the very next day, after the receipt of the transfer order dated 8.7.2014, i.e., 9.7.2014, the petitioner-Addl.D & SJ 'X', addressed a representation to the Registrar General of the High Court, seeking eight months extension.

The aforesaid extension was sought because the petitioner's daughter was to take Board examinations of Class XII. It was also pointed out, that under the transfer policy/guidelines, in case daughter of a judicial officer is to take Board/University examinations, the officer is not to be transferred till the end of the academic session.

Having submitted the aforesaid representation, it is the case of the petitioner, that she contacted respondent no.3 - Justice 'A', in his capacity as Administrative Judge of her Sessions Division, and pleaded with him that her transfer be deferred for the sake of her daughter, who was to take the Class XII Board examination. In the pleadings the petitioner asserted, that respondent no.3 mockingly reacted to the petitioner's request by telling her that she had not fulfilled his desires, she had not visited his residence alone to meet him even once, and therefore, this order of transfer was before her. He further told the petitioner, that he would finish her career completely. It is submitted that the petitioner's representation dated 9.7.2014, was declined on 11.7.2014.

8. All the facts narrated in the foregoing paragraph have been denied by respondent no.3 in his counter-affidavit. In response to the above averments, it is denied that respondent no.3 ever issued any instructions to the District Judge, District Judge (Vigilance) or the District Registrar in regard to surveillance of the professional work of the petitioner. It is denied, that the actions of respondent no.3, were responsible for the petitioner's harassment. Justice 'A' has denied having ever spoken to the officers referred to by the petitioner, with reference to the petitioner, on any of the issues raised by her. On the allegation of the petitioner's intentional transfer to Sidhi in July, 2014, the Registrar General of the High Court has filed an affidavit dated 17.11.2014 acknowledging, that the exercise of annual transfers was carried out in March, 2014, but the petitioner was transferred in July, 2014.

It is sought to be explained, that at the relevant time, the Transfer Committee of the High Court comprised of two senior Judges, which recommended the transfer of two Additional District & Sessions Judges, namely, Shri Manoj Kumar Tiwari and Shri Rajeev Kumar Singh, to Sidhi in March 2014. The recommendation of the Committee was accepted by the Chief Justice of the High Court, whereupon the said officers were transferred to Sidhi. Reciprocally, no Additional District and Sessions Judge was transferred out of Sidhi, at that juncture. The above transfers had been made on the basis of a request made by the District and Sessions Judge, Sidhi to handle the huge pendency of cases at Sidhi.

Despite the transfer of two Additional District and Sessions Judges referred to above, the District and Sessions Judge, Sidhi made another request through his communication dated 9.6.2014 to post another two Additional District and Sessions Judges, at Sidhi. This requirement expressed by the District and Sessions Judge, Sidhi was considered by the Transfer Committee, along with similar other requests from other Sessions Divisions. On a fresh consideration, the Transfer Committee recommended the transfer of 28 judicial officers including 6 Additional District & Sessions Judges. The Chief Justice of the High Court approved the recommendations made by the Transfer Committee. The transfer of the petitioner-Addl.D & SJ 'X' to Sidhi accordingly materialized.

It is submitted that all the transfers, including that of the petitioner, were made in administrative exigencies, and not on extraneous consideration. Insofar as the representation made by the petitioner, dated 9.7.2014 seeking cancellation/deferment of order of her transfer is concerned, it is pointed out, that the same was placed before the Transfer Committee. The Transfer Committee, vide its resolution dated 11.7.2014, recommended the rejection of the representation. The said recommendation was approved by the Chief Justice of the High Court on 11.7.2014 itself. With reference to the petitioner's representation dated 11.7.2014, it is pointed out, that the same was also placed before the Transfer Committee.

The Transfer Committee vide its resolution dated 14.7.2014, recommended the rejection of the second representation. The recommendation made by the Transfer Committee, was again approved by the Chief Justice of the High Court on 14.7.2014. It is pointed out, that on the very next day, i.e., 15.7.2014, the petitioner tendered her resignation. 9(i). The next component of the narration in the writ petition, relates to the measures adopted by the petitioner. In this behalf, it is asserted, that the petitioner along with her husband traveled to Jabalpur on 1.6.2014. The sole purpose was to discuss the afore-stated issues with a senior Judge of the High Court. After the petitioner narrated her version to the senior Judge, she was informed by the senior Judge, that he knew respondent no.3 - Justice 'A', and promised to intervene in the matter. He assured the petitioner, that he would arrange a meeting between the petitioner and respondent no.3 at Gwalior (during a forthcoming marriage in the 2nd week of June, 2014).

(ii). From 11.4.2014 to 14.7.2014, the petitioner claims that she spoke to the Private Secretary to the Chief Justice of the High Court, for seeking an audience with the Chief Justice of the High Court. According to the pleadings in the writ petition, on 13.7.2014, the Private Secretary informed the petitioner that the Chief Justice had refused to give her an appointment. The Private Secretary however reassured her, that he would make yet another effort to procure her an appointment for the following day, and was hopeful to manage the same. He had also informed the petitioner that he would convey the outcome "early next morning".

On 14.7.2014, since the petitioner did not receive any message from the Private Secretary, she sent a message to him inquiring about the outcome of his efforts. Learned counsel, during the course of hearing, submitted that the Private Secretary did not contact the petitioner thereafter. In support of the assertion, that the petitioner was seeking an appointment with the Chief Justice of the High Court, it is asserted, that as the Private Secretary was hopeful of getting her an audience with the Chief Justice, she purchased two railway tickets for 14.7.2014 to travel from Gwalior to Jabalpur, in the company of her husband. These tickets were in addition to the tickets purchased by her to make a similar journey on 11.7.2014 to meet senior Judges of the High Court. Copies of both sets of tickets have been appended to the writ petition.

(iii). It is the pleaded case of the petitioner, that on the following day, after the petitioner met respondent no.3 - Justice 'A" i.e., on 11.7.2014, the petitioner visited a number of senior Judges of the High Court. She was advised to make another representation seeking deferment of her transfer, which she did on 11.7.2014 itself. Some of them urged the petitioner to have faith in the system, and to await the outcome of her second representation.

9. The petitioner's second representation, was declined through a communication dated 11.7.2014.

10. According to the petitioner, having been subjected to victimization and harassment, the petitioner submitted her resignation from the post of Additional District and Sessions Judge, on 15.7.2014. The aforesaid resignation was addressed to the Registrar General of the High Court. In her resignation, the petitioner expressly mentioned about her elder daughter studying in Class XII. It was submitted, that no reference to the sexual harassment suffered by her was made in the resignation letter, as the same would have been embarrassing for the petitioner.

It was pointed out that the resignation submitted by the petitioner, was accepted on 17.7.2014 by the Legal and Legislative Work Department of the State Government. On the issue of the petitioner's resignation, the position explained in the reply filed on behalf of respondent no.1 is, that the petitioner's resignation was received in the office of the Registrar General of the High Court on 15.7.2014. The same was placed for consideration of the Chief Justice of the High Court on 16.7.2014. The Chief Justice recommended the acceptance of the resignation to the State Government. The State Government accepted the petitioner's resignation on 17.7.2014.

11. Having suffered extreme vilification at the hands of her superiors, for having not been afforded even an opportunity of being able to express her difficulties, the petitioner sent a representation to the President of India, the Chief Justice of India and the Chief Justice of the High Court on 1.8.2014. In her representation, the petitioner inter alia sought the following reliefs:

"1. Appropriate action be taken, after a fact-finding.

2. Re-consider the circumstances under which the Petitioner was coerced and exerted a great duress upon, until the only option she had was to resign.

3. Institute an appropriate mechanism for redressal of grievances like the above, of sub-ordinate services judicial officers."

12. Another relevant fact, which has not been disclosed in the writ petition, and which has emerged from the reply filed on behalf of respondent no.1-the Registrar General of the High Court, needs to be recorded here to complete the sequence of events.

It is pointed out on behalf of respondent no.1, that the petitioner had never disclosed the factum of sexual harassment in any of the numerous communications addressed by her to the High Court. It is pointed out, that the factum of sexual harassment had not even been incorporated in the petitioner's resignation letter. In the reply filed by respondent no.1, it is sought to be asserted, that the allegations of sexual harassment were recorded by the petitioner, for the first time, in her representation dated 1.8.2014, which was addressed to the Chief Justice of India.

It is also sought to be asserted, in the reply filed on behalf of respondent no.1, that the nature of allegations of sexual harassment levelled by the petitioner came to the knowledge of the Chief Justice of the High Court through a newspaper item published on 4.8.2014 in the Times of India. It is averred in the reply filed on behalf of respondent no.1, that respondent no.3 - Justice 'A', addressed a letter to the Chief Justice of the High Court with reference to the news item dated 4.8.2014. The news item as well as the letter received from respondent no.3 were sent by the Chief Justice of the High Court, by a special messenger, to the Chief Justice of India. Respondent no.1, i.e., the Registrar General of the High Court, on being directed by the Chief Justice of the High Court, issued the following press release on 4.8.2014:

"PRESS RELEASE

This is with regard to news item published in daily newspaper 'Times of India' dated 04.08.2014 reporting that a lady Judicial Officer posted as Additional District Judge, Gwalior had to resign from judicial service due to alleged harassment by a High Court Judge. It has been reported that when the lady Judicial Officer sought appointment with Hon'ble the Chief Justice to apprise him of the factual position, the same was declined. This is a distorted version. As a matter of fact, she sought appointment telephonically through Principal Private Secretary (PPS) to Hon'ble the Chief Justice, after she had already tendered her resignation which was forwarded to the State Government for necessary action.

In the given situation, she was informed by the PPS to submit a formal representation, if advised, in the matter. However, no representation has so far been made by her. In the context of the news item, the concerned High Court Judge faxed a confidential letter to Hon'ble the Chief Justice which was received on 4th August, 2014 in the morning. Hon'ble the Chief Justice has forwarded a copy of the said letter to Hon'ble the Chief Justice of India with comments. The lady Ex-Judicial Officer, who was posted at Gwalior since August, 2011 was transferred in July, 2014 to Sidhi on administrative grounds. Her two representations seeking cancellation of the transfer on the ground of education of her daughters were duly considered and rejected by the concerned Administrative Committee of the High Court. She has not represented about the alleged misbehavior or harassment caused to her by anyone.

Sd/-

(VED PRAKASH)

REGISTRAR GENERAL

HIGH COURT OF MADHYA PRADESH

JABALPUR

04.08.2014"

(emphasis is ours)

The aforesaid press release has been extracted hereinabove so as to avoid any further narration on theaforesaid subject.

13. According to the averments made in the reply filed on behalf of the Registrar General of the High Court, a sealed envelope was received from the office of the Chief Justice of India in the High Court on 7.8.2014. From the record made available, it is apparent that the Chief Justice of the High Court, keeping in view the sensitivity and seriousness of the matter, invited the two senior most judges of the High Court and the Registrar General of the High Court.

All decisions in the matter were made collectively, in the best interest of all concerned. In furtherance of the communication received from the Chief Justice of India, the Chief Justice of the High Court constituted a two-member senior judges Enquiry Committee (one of whom was a lady judge), to make a confidential and discreet inquiry, and to submit a report. A senior lady Additional District and Sessions Judge, was nominated by the Chief Justice of the High Court, for secretarial assistance of the "two-Judge Committee".

14. Consequent upon the nomination of the "two-Judge Committee", the petitioner received (via e-mail) a notice from the Secretary of the Committee constituted by the Chief Justice of the High Court on 12.8.2014, requiring her to appear for a preliminary inquiry before the "two-Judge Committee" on 19.8.2014 at 10.30 a.m. The petitioner responded to the aforesaid notice vide her reply dated 14.8.2014 (via e-mail and speed post) requesting for information, as to under what authority of law the "two- Judge Committee" had been constituted. In order to ensure, that the deliberations assigned to the Committee constituted by the Chief Justice of the High Court were fair, the petitioner, through her above reply dated 14.8.2014, requested that administrative functions be withdrawn from respondent no.3 - Justice 'A'.

She also sought the transfer of the District Judge, the District Judge (Inspection) and the District Registrar posted at Gwalior, so that her witnesses could depose freely and fairly before the "two-Judge Committee". In a response dated 14.8.2014 (sent via e-mail), the petitioner was informed, that the Chief Justice of the High Court had set up the "two-member Committee" to conduct a preliminary inquiry into the allegations levelled against respondent no.3.

On 19.8.2014, the petitioner submitted her second reply (via e-mail as also via speed post) stating that her request for withdrawal of administrative work from respondent no.3 - Justice 'A' and her request for transfer of judicial officers from Sessions Division, Gwalior had remained unaddressed. She also pointed out, that the procedure envisaged by the Supreme Court in the decision rendered in C. Ravichandran Iyer v. Justice A.M. Bhattacharjee (1995) 5 SCC 457, was not being followed, inasmuch as the Chief Justice of the High Court was to conduct a discreet inquiry at his own and that she could not be required to appear before the "two-Judge Committee" for a preliminary inquiry. In support of the original complaint submitted by the petitioner, on this occasion she also enclosed a sworn affidavit, affirming the factual position expressed in her complaint.

15. The determination of the present controversy, will emerge from the factual position projected by the rival parties which has been summarized above.

16. It would be pertinent to mention, that the main submission advanced at the hands of the learned counsel for the petitioner was, that the proceedings being conducted in the matter, are not in consonance with the "in-house procedure" adopted by this Court for taking suitable remedial action against judges, who by their acts of omission or commission, do not follow the accepted values of judicial life, including the ideals expressed by the Supreme Court in the "Restatement of Values of Judicial Life". The projection of the aforesaid contention, we felt, would not require an insight into the allegations made by Addl.D & SJ 'X', or even the response of Mr. Justice 'A'.

However, the submissions, as they have emerged during the course of hearing, reveal that the same also require to be considered. We also felt, after hearing submissions advanced on behalf of the rival parties, that the steps taken by the Chief Justice of the High Court, also needed a closer examination, for an effective and fruitful consideration of the controversy in view of the sensitivity and seriousness of the matter. We have, accordingly, briefly traced the allegations made by the petitioner, as also, the defence of respondent no.3. We have also ventured to narrate the steps taken by the Chief Justice of the High Court, consequent upon the petitioner's complaint being forwarded to him by the Chief Justice of India.

As a note of caution, we would like to record, that our recording of the events, may not be taken as the last word on the matter, we may have noticed certain facts in a manner which may have overlooked the sensitivity with which the party concerned had viewed or projected them. We may have also missed certain finer points, which could, on an analysis of facts, result in quite a different conclusion on their holistic examination. The issue of sexual harassment has a variety of fine connotations. Its evaluation may sometimes depend upon the sensitivity of the person concerned. And also whether, the perception of the harassed individual was known to the one against whom the accusing finger is pointed.

17. Every day is a matter of learning. Hearing of submissions in this case, we may say, was a matter of further understanding the sensitivities involved in a controversy of the present nature. We may venture to demonstrate this, by noticing a verbal exchange, during the course of hearing, between the counsel for the petitioner and that for the High Court. While the learned counsel representing the High Court was on "his" legs, learned counsel for the petitioner interjected to express "her" point of view. All through, during the process of hearing, submissions were advanced in a lively and respectful manner, and pointedly on the subject under consideration. Feeling that the thought being projected by the learned counsel was being disturbed by the intervention, the Bench accordingly exhorted learned counsel, to go on unmindful of the interruption.

Learned counsel for the High Court, well-meaning and deferential as he always is, responded by observing, "The interjections by the learned senior counsel for the petitioner, are always delightful". Learned senior counsel for the petitioner, had serious objection to the term, ''delightful'' used, with reference to "her". She questioned, the use of the term, ''delightful" by posing to the learned senior counsel, whether similar interjections by men, were also considered by him as delightful. Why then, she questioned, should "her" interjection be found ''delightful''. In expressing her view, she went on to describe the response of the learned senior counsel as "sexually coloured".

Having given our thoughtful consideration to the response, of the learned counsel for the petitioner, we may only say, that she may well be right. There is a lot to be learnt, from what she innocuously conveyed. Her sensitivity to the issue, one may confess, brought out to us, a wholly different understanding on the subject. It is, therefore, that we have remarked above, that the evaluation of a charge of sexual harassment, would depend on the manner in which it is perceived. Each case will have to be decided on its own merits. Whether the perception of the harassed individual, was conveyed to the person accused, would be very material, in a case falling in the realm of over-sensitivity. In that, it would not be open to him thereafter, to defend himself by projecting that he had not sexually harassed the person concerned, because in his understanding the alleged action was unoffending.

18. Therefore, as a matter of caution, we desire to expressly record, that the facts taken into consideration by us, are for the limited purpose of the submissions advanced at the hands of the learned counsel for the petitioner, to consider whether the procedure being followed in the present controversy, is in consonance with the "in-house procedure" adopted by this Court, as also, whether the procedure adopted by the Chief Justice of the High Court, would meet the ends of justice.

19. Before dwelling upon the pointed issues canvassed before us, we would venture to briefly record the sequence of events which led to the adoption by this Court, of the "in-house procedure". It is necessary for us to do so, because the contentions advanced by the learned counsel for the petitioner were founded on the "in-house procedure", whereas, it was the contention in response, that the same was not justiciable, and as such, the present writ petition is not maintainable in law.

20. Amongst the first encounters, to an investigation into the conduct of a judge, can be traced from a statement made to the Bar by the then Chief Justice of India, Mr. Justice Sabyasachi Mukherjee on 20.7.1990, with reference to the allegations levelled against Mr. Justice V. Ramaswami, who at that juncture, was a sitting Judge of the Supreme Court of India. An extract of the statement made to the Bar is being reproduced hereunder:

"Re: Ramaswami, J.

CJI's Statement to the Bar In the beginning of May, 1990, some learned advocates of this Court drew my attention to certain newspapers about the audit report investigating the expenses incurred in furnishing the residence of a former Chief Justice of the Punjab & Haryana High Court, namely, Shri V. Ramaswami, who is now a sitting Judge of this court. I was requested by the learned lawyers to take action suo-motu.

The matter was mentioned more than one. On 1st May, 1990. I had received a communication from the editor of a magazine enclosing therewith a copy of April 90 issue of the magazine The Lawyers, stating that it contained the full text of the audit report of the Chandigarh Administration. Thereafter after, the learned Attorney General, Sir. Soli Sorabjee, the former Attorney General, Sri Parasaran, Mr. Venugopal, the president of the Supreme Court Bar Association, and Dr. Y.S. Chitale, former President of the Supreme Court Bar association, also met me and drew my attention to these reports and expressed concern on the contents of the publications.

The Union Minister of Law and Justice called on me and expressed the concern of the members of parliament about the alleged extravagance by Justice Ramaswami and the contents of the report, while working as the Chief Justice of the Punjab and Haryana High Court. Sharing their concern, I had told the Law Minister and have since assured the learned Attorney General and other members of the Bar that I would look into the matter. Legally and constitutionally the Chief Justice of India, as such, has no right or authority to inquire into the conduct of a sitting Judge of the Supreme Court. However, the Chief justice of India, as the head of the Judicial Family has, I believe, the duty and the responsibility to maintain the judicial propriety and attempts to secure the confidence of the public in the working of the judicial process. This was an unprecedented and an embarrassing situation. It called for caution and establishment of a salutary convention. If have obtained from the Chief Justice of Punjab and Haryana High Court the necessary papers. There are three kinds of reports

(i) Reports submitted by the Internal Audit Cell of the High Court

(ii) Fact-finding Reports submitted by District and Sessions Judges (Vigilance) both of Punjab and Haryana; and

(iii) Reports and audit-paras submitted by the official of the Accountant Generals office to the High Court for reply. The reports and audit paras last mentioned seek clarifications and justifications in respect of the transactions which prime facie appeared to be irregular. I have looked into it and then arrived at a certain tentative impression it is not necessary to recapitulate in detail, the alleged irregularities I understand from the authorities of the High Court that the officials involved in the alleged irregularities have been suspended and departmental inquiries have been instituted against them.

The final result of these departmental inquiries is awaited. In the meantime, I took Brother Ramaswami into confidence and made known to him the contents of the audit reports with a view to ascertaining his position in relation to the disclosures made in the reports. He has given his version. I have also requested Brother Ramaswami to communicate his views to the Registrar, High Court of Punjab and Haryana so that the High Court may reply to the audit objections raised by the Government.

I understand that the High Court had directly sought Brother Ramaswamis clarifications with regard to certain audit objection and he has written to the officers of the High Court in this behalf. The proceedings, as mentioned before, against some of the officers of High Court on alleged irregularities are still pending. In respect of some of the irregularities which I have considered and the tendency of the departmental inquiries against the suspended officers, I am of the opinion that it would be appropriate to wait for a closer examination of the replies to the audit objections and the various queries submitted by the High Court to Brother Ramaswami before one can come to a final conclusion.

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The Supreme Court must uphold the rule of law. It is, therefore, necessary that those who uphold the rule of law must live by law and judges must, therefore, be obliged to live according to law. The law, procedure and the norms applicable in this case, enjoin that the expenses incurred by the Court for the Judges must be according to the rules, norms and the practice. No man is above law or the rules. The Judges either of the Supreme Court or of the High Courts and the Chief Justices are all subject to the rule of law and procedure like any other citizen of this country and must abide by the norms and regulation prescribed inasmuch as these and to the extent are applicable to them I always thought this was clear and needed no reiteration.

We must, therefore, ensure that there is no conduct of the Judges, which affects the faith of the people that Judges do not live according to law. Judges cannot afford to be involved in disputes, which have to determine the question whether the Judges while functioning as Judges of Chief Justices have attempted to subvert the law either designedly or in utter negligence or recklessness. In this matter, the questions involved are, namely,

(i) whether the Chief Justice was entitled to the expenses of his telephone at Madras because Chandigarh was declared a disturbed area;

(ii) Whether the Chief Justice was obliged to obtain leave to avail the facility of LTC;

(iii) Whether the Chief Justice was entitled to direct the cars to be taken to madras when he was on vacation from Chandigarh for the reasons mentioned by him;

(iv) Whether the silver maces ordered by the High Court have been done at the rate similar to the rate applied in respect of those supplied tot he Madras high Court, and

(v) Whether even though the Judges of the Punjab and Haryana High Court did not approve the idea of having maces for each individual Judge, the Chief Justice was entitled to direct the purchase of these maces.

Theses are the matters on which interpretation of the rules or on the permission or relaxation of rules, certain consequences will follow, and if the Chief justice was not so entitled or these could not be sanctioned as has been done under the circumstances mentioned in the aforesaid objections and communications, reimbursement or recovery would be directed. These matters, therefore, will have to await adjudication by the appropriate authorities, namely, the Government and the sanctioning authorities dealing with audit objections, in respect of the permissions sought.

Though one would like to think that there has been extravagance and ostentiousness but these by the selves do not involve determining questions of moral or legal impropriety of a judge functioning as a Judge in the Court. But there are some other aspects involved in this matter, namely, the questions of not accounting for all the furnitures or items that were in the residence and office of the Chief Justice, the alleged replacement of superior quality items by inferior quality items, the missing items and the splitting up of the bills in order to have the sanction of the authorities or to conform to the rules, are the matters which are also pending determination and adjudication.

Involvement in any investigation on the conduct of a sitting Supreme Court Judge on such matters as aforesaid is embarrassing in the circumstances and the background in which these questions have arisen in the instant case. For one who should attempt to uphold the rule of law, it is embarrassing to be involved in such a dispute. But no final decision on this aspect can be arrived at until the investigations and inquiries are completed. I have, on these aspects after looking into the matter and the points involved, no doubt that those who aspire to uphold the rule of law must strive to live according to law and they necessarily expose the selves to the danger of perishing by law. I am aware and deeply conscious that in certain circumstances somebody may be a victim of certain situation.

I was constrained, in those circumstances, to advise Brother Ramaswami to desist from discharging judicial functions so long as the investigations continued and his name was cleared on this aspect. I wrote to Brother Ramaswami on 18th July 1990 rendering my aforesaid advice. I have also conveyed to him my anguish in tendering this advice and I have requested him to please be on leave until the investigations on the aforesaid conduct are completed. On 18th July, 1990 after receipt of my letter, Brother Ramaswami has applied for leave for six weeks in the first instance with effect from 23rd July, 1990. I have directed the office to process his application for leave.

Since I had assured the learned Attorney General, the Law Minister, the president of the Bar Association and other that I will look into it, I thought I must covey to you result of my looking into it." It would be relevant to mention, that no further action was taken by the Chief Justice of India, in furtherance of the administrative authority vested in him, in the matter relating to the allegations levelled against Justice V. Ramaswami. Impeachment proceedings were initiated against Justice V. Ramaswami under Article 124 of the Constitution of India. The outcome of the same, is inconsequential to the present controversy.

21. Contextually, reference needs to be made, to the resolution passed by the Bombay Bar Association on 1.3.1995 by a majority of 185 out of 207 permanent members, demanding the resignation of Justice A.M. Bhattacharjee, the then Chief Justice of Bombay High Court. A writ petition came to be filed in this Court, seeking an appropriate writ, order or direction to restrain the Bar Council of Maharashtra and Goa, the Bombay Bar Association, and the Advocates' Association of Western India, from coercing Justice A.M. Bhattacharjee from resigning the office held by him.

The petitioner in the above case, had also made a prayer, that the allegations levelled against Justice A.M. Bhattacharjee be required to be investigated by the Central Bureau of Investigation, and if the same were found to be true, a direction be issued to the Speaker of the Lok Sabha, to initiate action for the removal of Justice A.M. Bhattacharjee, under Article 124 read with Article 218 of the Constitution of India, and the Judges (Inquiry) Act, 1968. While deliberating upon the aforesaid issue, this Court inter alia held as under:

"40. Bearing all the above in mind, we are of the considered view that where the complaint relates to the Judge of the High Court, the Chief Justice of that High Court, after verification, and if necessary, after confidential enquiry from his independent source, should satisfy himself about the truth of the imputation made by the Bar Association through its office bearers against the Judge and consult the Chief Justice of India, where deemed necessary, by placing all the information with him.

When the Chief Justice of India is seized of the matter, to avoid embarrassment to him and to allow fairness in the procedure to be adopted in furtherance thereof, the Bar should suspend all further actions to enable the Chief Justice of India to appropriately deal with the matter. This is necessary because any action he may take must not only be just but must also appear to be just to all concerned, i.e., it must not even appear to have been taken under pressure from any quarter. The Chief Justice of India, on receipt of the information from the Chief Justice of the High Court, after being satisfied about the correctness and truth touching the conduct of the Judge, may tender such advice either directly or may initiate such action, as is deemed necessary or warranted under given facts and circumstances. If circumstances permit, it may be salutary to take the Judge into confidence before initiating action.

On the decision being taken by the Chief Justice of India, the matter should rest at that. This procedure would not only facilitate nipping in the bud the conduct of a Judge leading to loss of public confidence in the courts and sustain public faith in the efficacy of the rule of law and respect for the judiciary, but would also avoid needless embarrassment of contempt proceedings against the office bearers of the Bar Association and group libel against all concerned. The independence of judiciary and the stream of public justice would remain pure and unsullied. The Bar Association could remain a useful arm of the judiciary and in the case of sagging reputation of the particular Judge, the Bar Association could take up the matter with the Chief Justice of the High Court and await his response for the action taken thereunder for a reasonable period.

41. In case the allegations are against Chief Justice of a High Court, the Bar should bring them directly to the notice of the Chief Justice of India. On receipt of such complaint, the Chief Justice of India would in the same way act as stated above qua complaint against a Judge of the High Court, and the Bar would await for a reasonable period the response of the Chief Justice of India. 42. It would thus be seen that yawning gap between proved misbehaviour and bad conduct in consistent with the high office on the part of a non cooperating Judge/Chief Justice of a High Court could be disciplined by self-regulation through in-house procedure. This in-house procedure would fill in the constitutional gap and would yield salutary effect. Unfortunately, recourse to this procedure was not taken in the case at hand, may be, because of absence of legal sanction to such a procedure."

22. In furtherance of the directions issued in C.Ravichandran Iyer's case (supra), this Court constituted a committee comprising of three Judges of this Court, namely, Justices S.C. Agrawal, A.S. Anand (as he then was), S.P. Bharucha (as he then was), and the then two senior-most Chief Justices of High Courts, i.e., Justices P.S. Misra and D.P. Mohapatra (of the Andhra Pradesh High Court and the Allahabad High Court, respectively), to lay down the "in-house procedure", for taking suitable remedial action against judges, who by their acts of omission or commission, do not follow the accepted values of judicial life, including the ideals expressed by the Supreme Court in the "Restatement of Values of Judicial Life". The committee submitted its report on 31.10.1997.

The same was adopted with amendments, in a Full Court Meeting of the Supreme Court of India, on 15.12.1999. In the afore-stated report, three sets of procedure for taking such suitable remedial action against judges were laid down. The first, related to Judges of the High Courts, the second, to Chief Justices of the High Courts, and the third, to Judges of the Supreme Court. Insofar as the present controversy is concerned, since the same relates to the allegations made against a sitting Judge of the Madhya Pradesh High Court, only the "in- house procedure" pertaining to Judges of the High Courts is relevant. The main submission advanced at the hands of the learned counsel for the petitioner is also based on the same. The "in-house procedure", as determined with reference to Judges of the High Court, is accordingly being extracted hereunder:

"HIGH COURT JUDGE:

A complaint against a Judge of a High court is received either by the Chief justice of that High Court or by the Chief Justice of India (CJI). Some times such a complaint is made to the President of India. The complaints that are received by the President of India are generally forwarded to the CJI.

The Committee suggests the following procedure for dealing with such complaints:-

(1) Where the complaint is received against a Judge of a High Court by the Chief Justice of that High Court, he shall examine it. If it is found by him that it is frivolous or directly related to the merits of a substantive decision in a judicial matter or does not involve any serious complaint of misconduct or impropriety, he shall file the complaint and inform the CJI accordingly. If it is found by him that the complaint is of a serious nature involving misconduct or impropriety, he shall ask for the response thereto of the Judge concerned. If on a consideration of the allegations in the complaint in the light of the response of the Judge concerned, the Chief Justice of the High Court is satisfied that no further action is necessary he shall file complaint and inform the CJI accordingly. If the Chief Justice of the High Court is of the opinion that the allegations contained in the complaint need a deeper probe, he shall forward to the CJI the complaint and the response of the Judge concerned along with his comments.

(2) When the complaint is received by the CJI directly or it is forwarded to him by the President of India the CJI will examine it. If it is found by him that it is either frivolous or directly related to the merits of a substantive decision in a judicial matter or does not involve any serious complaint of misconduct or impropriety, he shall file it. In other cases the complaint shall be sent by the CJI to the Chief Justice of the concerned High court for his comments. On the receipt of the complaint from CJI the Chief Justice f the concerned High court shall ask for the response of the judge concerned. If on a consideration of the allegations in the complaint in the light of the response of the Judge concerned the Chief justice of the High Court is satisfied that no further action is necessary or if he is of the opinion that the allegations contained in the complaint need a deeper probe, he shall return the complaint to the CJI along with a statement of the response of the Judge concerned and his comments.

(3) After considering the complaint in the light of the response of the judge concerned and the comments of the Chief justice of the high court, the CJI, if he is of the opinion that a deeper probe is required into the allegations contained in the complaint, shall constitute a three member Committee consisting of two Chief justices of High Courts other than the High Court to which the Judge belongs and one High Court Judge. The said Committee shall hold an inquiry into the allegations contained in the complaint. The inquiry shall be in the nature of a fact finding inquiry wherein the Judge concerned would be entitled to appear and have his say. But it would not be a formal judicial inquiry involving the examination and cross-examination of witnesses and representation by lawyers.

(4) For conducting the inquiry the Committee shall devise its own procedure consistent with the principles of natural justice.

(5)

(i) After such inquiry the Committee may conclude and report to the CJI that

(a) there is no substance in the allegations contained in the complaint, or

(b) there is sufficient substance in the allegations contained in the complaint and the misconduct disclosed is so serious that it calls for initiation of proceedings for removal of the Judge, or

(c) there is substance in the allegations contained in the complaint but the misconduct disclosed is not of such a serious nature as to call for initiation of proceedings for removal of the Judge.

(ii) A copy of the Report shall be furnished to the judge concerned by the Committee.

(6) In a case where the Committee finds that there is no substance in the allegations contained in the complaint, the complaint shall be filed by the CJI.

(7) If the Committee finds that there is substance in the allegations contained in the complaint and misconduct disclosed in the allegations is such that it calls for initiation of proceedings for removal of the Judge, the CJI shall adopt the following course:-

(i) the Judge concerned should be advised to resign his office or seek voluntary retirement;

(ii) In a case the judge expresses his unwillingness to resign or seek voluntary retirement, the chief justice of the concerned High Court should be advised by the CJI not to allocate any judicial work to the judge concerned and the President of India and the Prime Minister shall be intimated that this has been done because allegations against the Judge had been found by the Committee to be so serious as to warrant the initiation of proceedings for removal and the copy of the report of the Committee may be enclosed.

(8) If the Committee finds that there is substance in the allegations but the misconduct disclosed is not so serious as to call for initiation of proceedings for removal of the judge, the CJI shall call the Judge concerned and advise him accordingly and may also direct that the report of the Committee be placed on record."

23. Next in sequence, we may advert to the letter dated 4.8.2008 written by the then Chief Justice of India, Mr. Justice K.G. Balakrishnan, to the then Prime Minister Mr. Manmohan Singh, recommending the removal of Mr. Justice Soumitra Sen, then a sitting Judge of the Calcutta High Court. A relevant extract of the above letter is placed below: "The text of the letter written by Chief Justice of India, K.G. Balakrishnan to Prime Minister Manmohan Singh recommending removal of Mr. Justice Soumitra Sen, Judge of the Calcutta High Court.

Dated: 4 August, 2008

Dear Prime Minister, I write this to recommend that the proceedings contemplated by Article 217(1) read with Article 124(4) of the Constitution be initiated for removal of Mr. Justice Soumitra Sen, Judge, Calcutta High Court. 2-8.

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9. Reports appeared in newspapers concerning the conduct of Justice Soumitra Sen in the above-noted matter. The then Chief Justice of Calcutta High Court withdrew judicial work from him and wrote a letter dated 25th November, 2006 to my learned predecessor bringing the matter to his notice for appropriate action.

10. On 1st July, 2007 I sought a comprehensive report from the Chief Justice of Calcutta High Court along with his views about Justice Soumitra Sen. On 12th July, 2007 Justice Soumitra Sen called on me, on advice of his Chief Justice and verbally explained his conduct. He sent his report to me on 20th August, 2007.

11. xxx xxx xxx

12. On 10th September, 2007 I had asked Justice Soumitra Sen to furnish his fresh and final response to the judicial observations made against him. After seeking more time for this purpose he furnished his response on 28th September, 2007 requesting that he may be allowed to resume duties in view of the order of the Division Bench of Calcutta High Court.

13. Since I felt that a deeper probe was required to be made into the allegations made against Justice Soumitra Sen, to bring the matter to a logical conclusion, I constituted a three Member Committee consisting of Justice A.P. Shah (Chief Justice, Madras High Court), Justice A.K. Patnaik (Chief Justice, High Court of Madhya Pradesh) and Justice R.M. Lodha (Judge, Rajasthan High Court), as envisaged in the 'In-House Procedure' adopted by Supreme Court and various High Courts, to conduct a fact finding enquiry, wherein the Judge concerned would be entitled to appear and have his say in the proceedings.

14. The Committee submitted its report dated 1st February, 2008, after calling for relevant records and considering the submission made by Justice Soumitra Sen, who appeared in-person before the Committee. The Committee inter alia concluded that:

(a) Shri Soumitra Sen did not have honest intention right from the year 1993 since he mixed the money received as a Receiver and his pers