| SooperKanoon Citation | sooperkanoon.com/824403 |
| Subject | Service |
| Court | Chennai High Court |
| Decided On | Jun-13-2008 |
| Case Number | W.P. No. 38815 of 2006 and M.P. No. 1 of 2006 |
| Judge | P.K. Misra and ;K. Chandru, JJ. |
| Reported in | (2008)5MLJ261 |
| Acts | Education Code - Schedule - Article 81; Constitution of India - Article 226 |
| Appellant | The Chairman, Navodaya Vidyalaya Samiti, Ministry of Hrd, ;The Commissioner, Navodaya Vidyalaya Sami |
| Respondent | Dr. T. Murugesan, ;The Deputy Commissioner/Director Collector, ;The Additional Deputy Commissioner a |
| Appellant Advocate | Rajappa, Adv. for ;J. Srinivasa Mohan, Adv. |
| Respondent Advocate | Vijay Narayan, SC for ;Karthik Mukundan, GA |
| Disposition | Petition allowed |
| Cases Referred | Vishaka v. State of Rajasthan |
K. Chandru, J.
1. Aggrieved by the order of the Central Administrative Tribunal (CAT) dated 09.6.2005 made in O.A. No. 1027 of 2004, the petitioners, who are the Chairman, Commissioner of the Navodaya Vidyalaya Samiti [for short, 'NVS'] functioning under the Ministry of HRD at New Delhi as well as the Deputy Director of NVS at Nongriss Hills, Shillong at Meghalaya State, have filed the present writ petition.
2. By the aforesaid order, the CAT set aside the order of termination of the first respondent dated 13.6.2003, confirmed by the order dated 31.8.2004 passed by the appellate authority, and directed reinstatement of the first respondent with all consequential benefits.
3. This Court admitted the writ petition on 11.10.2006 and also granted an interim stay on the same day. When the first respondent filed M.P. No. 2 of 2006 to vacate the stay order, this Court confirmed the stay and dismissed the vacate stay application. It directed the disposal of the main writ petition at an early date.
4. The brief facts leading to the termination are as follows:
4.1. The first respondent was working as the Principal of the Jawahar Navodaya Vidyalaya, Hailakandi in the State of Assam under the control of the second respondent. A complaint was received that the first respondent had tried to exploit the innocence and modesty of a minor girl student studying in Class X of the said school taking advantage of the absence of her parents from the house. Incidentally, the father of the minor girl was a Driver attached to the school and they were staying in the campus itself.
4.2. The third petitioner conducted a preliminary investigation and concluded that the approach of the first respondent towards the girl student of Class X was not honourable and after a detailed examination of the report of the third petitioner, summary trial was ordered by a Committee into the allegations levelled against the first respondent. A Summary Inquiry was conducted on 27.10.2002 in the presence of the first respondent. The Inquiry Committee, after perusal of the record of the case and deposition of the first respondent made before the Committee, rendered a finding that the first respondent had made advance towards the girl student when she was alone in her residence and concluded that he was prima facie guilty of immoral behaviour. The services of the first respondent were terminated by an order dated 13.6.2003 passed by the second petitioner, who is the competent authority.
5. The first respondent filed O.A. No. 860 of 2003. Though the place of work of the first respondent was Meghalaya, he gave a Chennai address and challenged the order of termination before the CAT, Chennai Bench. The said O.A. was disposed of by an order dated 01.10.2003 directing the statutory appeal filed by the first respondent to be disposed of within a time frame fixed by the CAT. The appeal dated 30.6.2003 filed by the first respondent was dismissed by an order dated 29.10.2003. Not satisfied with the disposal, the first respondent filed a Contempt Application being Cont. P. No. 4 of 2004. The said application was disposed of by an order dated 04.3.2004 holding that the appellate authority had not applied his mind and, therefore, the appellate order was set aside. He was directed to re-hear the appeal after hearing the appellant personally and with a further direction to dispose of the appeal with an independent mind.
6. The Chairman of the NVS, who is also the Minister of Human Resources Development, New Delhi, heard the first respondent personally on 05.8.2004. The first respondent also submitted a written representation on the same day. Thereafter, the Chairman of the NVS dismissed the appeal by an order dated 31.8.2004 against which, he filed O.A. No. 1027 of 2004 and challenged the original order of termination as well as the appellate order.
7. A detailed reply statement dated 14.2.2005 was filed before the CAT on behalf of the petitioners justifying the action taken against the first respondent.
8. The CAT, after hearing both sides, came to the conclusion that it was wrong for the disciplinary authority to have dispensed with the enquiry proceedings as he had not recorded reasons for not holding an enquiry on the ground that it was not reasonable and practicable and there was lack of application of mind which resulted in an arbitratry action. It was also stated that when the third petitioner / Deputy Director sent a report to the second petitioner Commissioner about the incident, he was accompanied by his wife and her statement was taken into account and such a statement has no legal value in the eye of law as that of independent person. Since her statement was taken into account for passing the orders of suspension as well as dismissal, it will vitiate the petitioners in initiating the proceedings. In that view of the matter, the CAT accepted the contentions of the first respondent and rejected the contentions of the petitioners. It finally resulted in setting aside the order of termination and the petitioners were directed to reinstate the first respondent.
9. Heard the arguments of Mr. Rajappa, learned Counsel representing Mr. J. Srinivasa Mohan, appearing for the petitioner and Mr. Vijay Narayan, learned Senior Counsel leading M/s Karthik Mukundan, learned Counsel for the respondents and perused the records.
10. Learned Counsel for the petitioners made a detailed submission stating that the findings rendered by the CAT was perverse and it did not peruse the records properly. The learned Counsel submitted that the School in which the first respondent was engaged was a co-educational institution and it was the duty of the first respondent, being the Principal, to protect the safety, security and modesty of the students. By a notification dated 16.12.1993, the NVS had authorised the Commissioner to terminate the services of any employee, who was found prima facie guilty of moral turpitude involved in sexual offence or exhibition of immoral sexual behaviour towards any student after such Summary Enquiry as deemed practicable.
11. He further submitted that in a case of this nature, it was not practicable to hold a detailed enquiry in view of the sensitive nature of the issue and such action taken in the earlier circumstances has been upheld by the Courts. It was also stated that the third petitioner, who was named in his individual capacity, conducted the enquiry strictly as per the Rules and his wife was not a stranger and she was working as a Trained Graduate Teacher (TGT) (Mathematics) at the Jawahar Navodaya Vidyala, Assam. She, being a woman, was able to question the girl so as to bring out the truth and at the time when the girl and her parents came to lodge a complaint, the third petitioner had examined the girl in detail. The Director-cum-Commissioner had recorded the reasons for dispensing with the regular enquiry. The Director, being the competent authority, was satisfied that the first respondent was prima facie guilty of moral turpitude and he was also satisfied that it was not expedient to hold any enquiry as it will cause serious embarassment to the girl student and the reasons are recorded in the file which has been reflected in the order passed. Even on further appeal, the highest authority, viz., the Chairman had concurred with the action taken by the third petitioner and such action taken in the purity of administration cannot be found fault with by the exercise of limited judicial review power conferred on the CAT.
12. Per contra, Mr. Vijay Narayan, learned Senior Counsel appearing for the first respondent submitted that the enquiry conducted by the third petitioner supported by the statement of his wife, has no value in the eye of law and no termination order can be passed on the basis of such statement. Though the CAT held that there is power to dispense with the enquiry but the decision making process leading to such conclusion was held to be not rational and fair. It also held that the Deputy Commissioner / District Collector of Hailakandi District, Assam had conducted an enquiry and sent an independent report which has been brushed aside on irrelevant consideration. The allegation that the first respondent had gone to the Driver's room with an intention of exploiting the modesty of the girl student (who is also the Driver's daughter) was baseless and the evidence of the Chowkidar clearly gives lie to the charges made against the first respondent. He also submitted that there is no material record to show that the first respondent misbehaved with the girl student. The finding of the appellate authority that the report sent by the Deputy Commissioner / District Collector was in the absence of recording the statement of the girl student and her parents may not be correct. The girl student and her parents did not appear before the appellate authority inspite of notices issued to them. He also stated that there was an inordinate delay in filing the writ petition.
13. At this stage, Mr. Rajappa, learned Counsel appearing for the NVS intervened and stated that there are many issues which could not be put in the affidavit and there were forces at Chennai which attempted to thwart the filing of the writ petition. It was after getting the entire records, the headquarters took the decision to file the writ petition and hence, there was some delay.
14. Learned Counsel appearing for the petitioners relied upon the judgment of the Supreme Court in Avinash Nagra v. Navodaya Vidyalaya Samiti and Ors. : (1997)IILLJ640SC . In that judgment, the Supreme Court also dealt with a similar case and exhorted as to how a teacher should behave as a role model. The following passages found in paragraphs 11 and 12 may be usefully referred:
Para 11: It is in this backdrop, therefore, that the Indian society has elevated the teacher as 'Guru Brahma, Gurur Vishnu, Guru Devo Maheswaraha'. As Brahma, the teacher creates knowledge, learning, wisdom and also creates out of his students, men and women, equipped with ability and knowledge, discipline and intellectualism to enable them to face the challenges of their lives. As Vishnu, the teacher is preserver of learning. As Maheswara, he destroys ignorance. Obviously, therefore, the teacher was placed on the pedestal below the parents. The State has taken care of service conditions of the teacher and he owes dual fundamental duties to himself and to the society. As a member of the noble teaching profession and a citizen of India he should always be willing, self-disciplined, dedicated with integrity to remain ever a learner of knowledge, intelligently to articulate and communicate and imbibe in his students, as social duty, to impart education, to bring them up with discipline, inculcate to abjure violence and to develop scientific temper with a spirit of enquiry and reform constantly to rise to higher levels in any walk of life nurturing constitutional ideals enshrined in Article 51-A so as to make the students responsible citizens of the country. Thus the teacher either individually or collectively as a community of teachers, should regenerate this dedication with a bent of spiritualism in broader perspective of the constitutionalism with secular ideologies enshrined in the Constitution as an arm of the State to establish egalitarian social order under the rule of law. Therefore, when the society has given such a pedestal, the conduct, character, ability and disposition of a teacher should be to transform the student into a disciplined citizen, inquisitive to learn, intellectual to pursue in any walk of life with dedication, discipline and devotion with an enquiring mind but not with blind customary beliefs. The education that is imparted by the teacher determines the level of the student for the development, prosperity and welfare of the society. The quality, competence and character of the teacher are, therefore, most significant to mould the calibre, character and capacity of the students for successful working of democratic institutions and to sustain them in their later years of life as a responsible citizen in different responsibilities. Without a dedicated and disciplined teacher, even the best education system is bound to fail. It is, therefore, the duty of the teacher to take such care of the pupils as a careful parent would take of its children and the ordinary principle of vicarious liability would apply where negligence is that of a teacher. The age of the pupil and the nature of the activity in which he takes part are material factors determining the degree and supervision demanded by a teacher.
Para 12: It is axiomatic that percentage of education among girls, even after independence, is fathom deep due to indifference on the part of all in rural India except some educated people. Education to the girl children is nation's asset and foundation for fertile human resources and disciplined family management, apart from their equal participation in socio-economic and political democracy. Only of late, some middle-class people are sending the girl children to co-educational institutions under the care of proper management and to look after the welfare and safety of the girls. Therefore, greater responsibility is thrust on the management of the schools and colleges to protect the young children, in particular, the growing up girls, to bring them up in disciplined and dedicated pursuit of excellence. The teacher who has been kept in charge, bears more added higher responsibility and should be more exemplary. His/her character and conduct should be more like Rishi and as loco parentis and such is the duty, responsibility and charge expected of a teacher. The question arises whether the conduct of the appellant is befitting with such higher responsibilities and as he by his conduct betrayed the trust and forfeited the faith whether he would be entitled to the full-fledged enquiry as demanded by him? The fallen standard of the appellant is the tip of the iceberg in the discipline of teaching, a noble and learned profession; it is for each teacher and collectively their body to stem the rot to sustain the faith of the society reposed in them. Enquiry is not a panacea but a nail in the coffin. It is self-inspection and correction that is supreme. It is seen that the rules wisely devised have given the power to the Director, the highest authority in the management of the institution to take decision, based on the fact-situation, whether a summary enquiry was necessary or he can dispense with the services of the appellant by giving pay in lieu of notice. Two safeguards have been provided, namely, he should record reasons for his decision not to conduct an enquiry under the rules and also post with facts the information with Minister, Human Resources Department, Government of India in that behalf. It is seen from the record that the appellant was given a warning for his sexual advances towards a girl student but he did not correct himself and mend his conduct. He went to the girls' hostel at 10 p.m. in the night and asked the hostel helper, Bharat Singh to misguide the girl by telling her that Bio-Chemistry Madam was calling her; believing the statement, she came out of the hostel. It is the admitted position that she was an active participant in cultural activities. Taking advantage thereof, he misused his position and made sexual advances towards her. When she ran away from his presence, he pursued her to the room where she locked herself inside; he banged the door. When he was informed by her roommates that she was asleep, he rebuked them and took the torch from the room and went away. He admitted his going there and admitted his meeting with the girl but he had given a false explanation which was not found acceptable to the Enquiry Officer, namely, Asstt. Director. After conducting the enquiry, he submitted the report to the Director and the Director examined the report and found him not worthy to be a teacher in the institution. Under those circumstances, the question arises whether the girl and her roommates should be exposed to the cross-examination and harassment and further publicity? In our considered view, the Director has correctly taken the decision not to conduct any enquiry exposing the students and modesty of the girl and to terminate the services of the appellant by giving one month's salary and allowances in lieu of notice as he is a temporary employee under probation. In the circumstances, it is very hazardous to expose the young girls to tardy process of cross-examination. Their statements were supplied to the appellant and he was given an opportunity to controvert the correctness thereof. In view of his admission that he went to the room in the night, though he shifted the timings from 10 p.m. to 8 p.m. which was not found acceptable to the respondents and that he took the torch from the room, do indicate that he went to the room. The misguiding statement sent through Bharat Singh, the hostel peon, was corroborated by the statements of the students; but for the misstatement, obviously the girl would not have gone out from the room. Under those circumstances, the conduct of the appellant is unbecoming of a teacher much less a loco parentis and, therefore, dispensing with regular enquiry under the rules and denial of cross-examination are legal and not vitiated by violation of the principles of natural justice.
15. He also submitted that in that judgment, the Supreme Court dealt with the power of the Director in dispensing with the enquiry. The question was framed in paragraph 6, which is extracted below, was answered in paragraph 12, which is already extracted above.
Para 6: ...In such cases, procedure prescribed for holding enquiry for imposing major penalty in accordance with the Rules as applicable to the employees of the respondent, shall be dispensed with provided that the Director is of the opinion that it is not expedient to hold regular enquiry on account of serious embarrassment to the student or his guardians or such other practical difficulties. The Director shall record in writing the reasons under which it is not reasonably practicable to hold such enquiry and he shall keep the Chairman of the Samiti informed of the circumstances leading to such termination of services. It would thus be seen that in a given situation, instead of adopting the regular procedure under the Rules to terminate the services of an employee, the notification prescribes the procedure to dispense with such enquiry, subject to the conditions mentioned above. The question is whether the order terminating the services of the appellant in terms of his appointment letter is in violation of the Rules or the principles of natural justice....
16. Thereafter, the learned Counsel relied upon the judgment of the Supreme Court in Director, Navodaya Vidyalaya Samiti and Ors. v. Babban Prasad Yadav and Anr. 2004 (13) SCC 568 wherein the Supreme Court referred to Avinash Nagra's case (cited supra) and approved the reasoning in paragraph 11 which reads as follows:
Para 11: The High Court particularly erred in requiring that such a charge needed to be proved beyond all reasonable doubt. This is against the principles governing a departmental enquiry in general and the unchallenged rules of the appellant institution in particular. The reason sought to be given by the Director for dispensing with the enquiry has been held by the High Court to be 'unconstitutional and not legal'. This finding is also unacceptable since the Director has used the language of the rule. Furthermore, having regard to the approval of the rule in question in the decision of Avinash Nagra it was not open to the High Court to have come to the conclusion that the reason given by the Director for dispensing with the enquiry was unconstitutional or illegal.
17. The learned Counsel for the petitioners also referred to three unreported decisions of the Delhi High Court relating to school employees and copies of the judgments were also furnished to the learned Counsel for the first respondent.
18. In Jwala Singh v. Union of India and Ors. W.P. (C) No. 6529 of 2005, the Delhi High Court dealt with the case of outraging modesty of a girl student studying IX Std. and after referring to the judgment in the Avinash Nagra's case (cited supra) and Babban Prasad Yadav (cited supra), the Court upheld the action taken by the NVS and in paragraphs 10, 11 and 13, the Delhi High Court dismissed the case of the Teacher and the same may be reproduced:
Para 10: We cannot resist commending the Commissioner of Navodaya Vidyalaya Samiti for the view taken by him. He looked into the matter in the right perspective and refused to get carried away by what, for instance, had been stated by Assistant Director, Shri Waghmere and Ms. Kaneez Fatima. They had dismissed the complaint on the basis, for example, of contradictions about the place and date of the incident. The Commissioner was right in observing that the question which needed to be gone into was whether the incident did take place or not and since the inquiry officers did not say that the incident had not taken place, the Commissioner rightly dispensed with the holding of regular inquiry and passing the order, terminating the services of the petitioner.
Para 11: On going through the records, we are also satisfied that all the preconditions for exercising the extra-ordinary power of dispensing with the holding of a regular inquiry are satisfied in the present case. Therefore, the aforesaid decisions of the Supreme Court are applicable to the facts of this case on all fours.
Para 13: A school is not merely bricks and mortar. It is the nursery of idealism and character. The teacher is the person who nurtures the nursery and it is under him that it grows. He affects eternity. What if a teacher falls from the standard expected of him? In such a case, surgical treatment may be called for and the present is one such case.
19. Again, another Division Bench of the Delhi High court in J.P. Yadav v. Union of India and Ors. W.P. No. 17458 of 2004, by its judgment dated 06.12.2005, dealt with the case of a Teacher working in KVS, who exhibited his immoral behaviour towards X Std. girl and held that the summary enquiry held against the Teacher was valid.
20. Similarly, in Krishna Murari Sharma v. Union of India and Ors. W.P. No. 23549 of 2005, another Division Bench of the Delhi High Court vide its judgment dated 15.12.2005 upheld the action taken against a Teacher of KVS wherein under Article 81(b) of the Education Code (which is similar to the rule in NVS) was invoked for conducting a summary enquiry.
21. The learned Counsel thereafter referred to another Division Bench judgment of the Delhi High Court in Kendriya Vidyalaya Sangathan and Ors. v. Gauri Shankar W.P. (C) No. 4400 of 2003, disposed on 12.12.2007 wherein the order of the CAT in interfering with the punishment given by the school to a Group D employee was set aside by the Division Bench. In paragraphs 13 to 15, the Division Bench took exception to the CAT in interfering with the punishment given to a staff of the school run by K V.
Para 13: The guidelines prescribed under Rule 81(b) for dispensing with holding of a regular inquiry under the CCS(CCS) Rules, 1965, is that the Commissioner should be of the opinion that it is not expedient to hold a regular inquiry on account of the serious embarrassment that may be caused to the student or his guardians or such other practical difficulties. This decision/opinion has to be that of the Commissioner on whatever preliminary inquiry he might have got contacted and on the basis of the complaint/responses before him. In a case like the present, it can hardly be said that it would not have been highly embarrassing for both the students in question as well as their guardians to have faced an inquiry into the conduct of the respondent wherein he is stated to have physically abused the two students. The Commissioner, in his impugned order has recorded the reasons as to why it is not reasonably practicable to hold an inquiry in the present case. The Appellate order is even more clear which records detailed reasons of the Appellate Authority for rejecting the departmental appeal against the respondent.
Para 14: It was not for the Tribunal to have sat in judgment over the subjective satisfaction of the disciplinary authority and the appellate authority, which were based on cogent reasons and materials brought on record. Merely because the parents of the two students might have been aware of their relationship as noticed by the Tribunal (a fact, which is not borne out from the record), that by itself also was not enough to say that there was no question of any embarrassment to the students or their guardians in the holding of an inquiry. In our view, the present was a fit case where article 81 (b) of the Educational Code was rightly invoked by the Petitioner. This appears to us to be a case where the Respondent tried to exploit the vulnerable situation in which the two students found themselves. We are sorry to say that the Tribunal has acted with complete indifference and lack of sensitivity in making its aforesaid observations and we have no hesitation in setting aside the impugned order.
Para 15: In such like matters, the School administration is entitled to show zero tolerance. Parents send their children to school on the trust and belief that their wards are safe from such exploitation at the hands of teachers and other staff of the school and that the school administration shall protect them against such exposure. If such conduct is tolerated or overlooked and treated with leniency, it would not only encourage others to indulge in similar misadventures, but also erode the confidence of the parents who send their young boys and girls to school.
In the light of the above factual matrix and in the light of the binding legal precedents, the learned Counsel wanted this Court to allow the writ petition by setting aside the order of the CAT.
22. Mr. Vijay Narayan, learned Senior Counsel appearing for the first respondent relied on the judgments of the Supreme Court for the purpose of showing the circumstances under which an enquiry can be dispensed with and the permissible nature of the judicial review.
(a) Indian Railway Construction Co. Ltd. v. Ajay Kumar : (2003)IILLJ150SC
(b) Ex. Constable Chhote Lal v. Union of India and Ors. : (2000)10SCC196
(c) Jaswant Singh v. State of Punjab and Ors. : AIR1991SC385
(d) Chief Security officer and Ors. v. Singasan Rabi Das : (1991)ILLJ308SC
23. The learned Senior Counsel also referred to a Division Bench judgment of this Court in G. Pushkala v. High Court of Judicature at Madras, rep. by its Registrar General, Chennai and Ors. : (2007)4MLJ692 .
24. That case also related to a complaint of sexual harassment. The Division Bench which dealt with the case also struck a note of caution while dealing with such cases in paragraphs 26 and 28 and it reads as follows:
Para 26: But, at the same time, it should be kept in mind that a charge of this nature is very easy to make and is very difficult to rebut. When a plea is taken of false implication for extraneous reasons, Courts have a duty to make deeper scrutiny of the evidence and decide the acceptability or otherwise of the accusations. Every care has to be taken to separate chaff from the grain. The veracity and genuineness of the complaint should be scrutinised to prevent any misuse of such laudable laws enunciated for the upliftment of the society and for equal rights of people without gender discrimination, by anybody under the garb of 'sexual harassment', lest the justice rendering system would become a mockery.
Para 28: Keeping in mind the above propositions of law laid down by the Apex Court and further since, as has already been adverted to supra that there is no appeal remedy to the delinquent officer as against the impugned order of compulsory retirement inflicted on him with a stigma and the only remedy to him is under Article 226 of the Constitution, we are of the view that in such matters, the Court should be more vigilant in assessing the case so as to render justice, to its true meaning to uphold the majesty of justice and law.
25. Considering the rival submissions, it must be seen whether the victim girl has to be examined in such circumstances. Therefore, it is necessary to refer to the judgment of the Division Bench of this Court presided by P. Sathasivam, J. (as he then was) in C. Parthiban v. Dr. K. Meena and Ors. : (2007)3MLJ492 and in paragraph 15, it was held as follows:
Para 15: ...We are of the view that in order to protect the modesty of girl students and to prevent their unnecessary exposure at an enquiry, they need not appear and depose before the present Enquiry Officer. On the other hand, the Enquiry Officer is directed to take note of their statements, supply copy of the same to respondents 4 to 7 and after giving opportunity to them to offer their further response, if any, the Enquiry Officer is free to submit his report for further action....
26. In Vishaka and Ors. v. State of Rajasthan and Ors. : AIR1997SC3011 , the Supreme Court laid down guidelines by which complaints of sexual harassment in work place can be enquired into by the employers. Vishaka's Case (cited supra) initially directed the employers to take action in case of complaints of sexual harassment by a special committee to be constituted. After the judgment of Supreme Court most of the employers have understood that the committee's report are only recommendary and as done so as to find out a prima facie case warranting further initiation of disciplinary action separately under the relevant service rules.
Because of this understanding of law, women, who were sexually harassed, were made to appear twice in two separate enquiries and this led to further harassment and humiliation.
27. Subsequently, the Supreme Court considered the complaints made by various representations of the woman's organisations and passed further order clarifying Vishaka's case where the Supreme Court directed Governments to strictly go by the report of the Sexual Harassment Committee and made the enquiry report as the starting point of further proceedings. The employers were directed to proceed from the stage of the enquiry report and take appropriate action. In this regard, the Supreme Court also directed for amendment of relevant Service Rules.
28. This order of the Supreme Court was made on 26.01.2004 in Medha Kotwal Lele and Ors. v. Union of India and Ors. W.P. (Crl) Nos. 173-177/1999. The order of the Supreme Court reads as follows:
Several Petitions had been filed before this Court by Women Organisations and on the basis of the note prepared by the Registrar General that in respect of sexual harassment cases the Complaints Committees were not formed in accordance with the guidelines issued by this Court in Vishaka v. State of Rajasthan : AIR1997SC3011 and that these petitions fell under Clause (6) of the PIL Guidelines given by this Court i.e. 'Atrocities on Women' and in any event the Guidelines setout in Vishaka were not being followed. Thereupon, this Court treated the petitions as Writ Petitions filed in public interest.
Notice had been issued to several parties including the Government concerned and on getting appropriate responses from them and now after hearing Learned Attorney General for UOI and learned Counsel we direct as follows:
Complaints Committee as envisaged by the Supreme Court in its Judgment in Vishakas Case : AIR1997SC3011 , will be deemed to be an inquiry authority for the purposes case : AIR1997SC3011 will be deemed to be an inquiry authority for the purposes of Central Civil Services (Conduct) Rules 1964 (hereinafter called CCS Rules) and the report of the complaints Committee shall be deemed to be an inquiry report under the CCS rules. Thereafter the disciplinary authority will act on the report in accordance with the rules. Similar amendments shall also be carried out in the Industrial Employment (Standing Order) Rules.
29. Therefore, now the employers can have only one stage action. After the Sexual Harassment Committee's report, they must proceed to impose punishment on an employee found guilty of sexual harassment. This order came to be passed by the Supreme Court, as the Court had received complaints that the earlier procedure led the woman being further harassed by attending before two separate enquiries one by the Special Committee and the other before the Enquiry Officer appointed in terms of Service Rules. In the light of the above, the question of examining the victim girl in the presence of the first respondent does not arise.
30. With reference to the present enquiry in question, the parties have placed the entire records before this Court and it was perused. The first respondent, in the light of the complaint made against him, was first to make character assassination against the girl student. He obtained statements from the Chowkidar and two Mess Helpers dated 27.10.2002. The translated version furnished in the typed set reads as follows:.Driver's daughter's manner was not good. She used to go to mess by wearing half pant and half shirt. Principal sir many times instructed her to wear the normal dress of the school like other girls. Then Principal Sir made her stop her wearing such dresses. As because here both Hindu, Muslim students wear nice dresses which maintain the culture of the School. Driver's wife became angry on the Principal and further made all these unwanted problems created in the school and spoil the reputation of the Principal.
31. Even in the letter dated 27.10.2002, the Chowkidar spoke about the Principal going to the residential portion of the girl's house. He described as to what had happened on that day. The relevant portion is as follows:.Then Principal Sir and myself went to the Driver's class-room residence and persuaded to appear for Exams. At that time her brother Master Rohming, Class - VII was also present in the room. After shouting her to appear for the Exam, when she was about to go to the Exam hall as a fatherly affection Principal Sir caught hold her hand and advised her to go to the Exam hall.
32. Meena Bora Dutta, a staff Nurse in her report stated as follows:.Within 1 minute, I came to downfloor. I have seen driver's wife loudly shouting and abuse our Principal Sir. She also said that she Sir tries to misuse her daughter Eliser, who is a student of class X of our school. Then Sir requested me to check-up her entire body. I observed her whole body. As per my medical report nothing is found in her entire body....
33. A number of statements from the students were obtained by the Principal. In all the reports, there is a statement that the mother of the girl abused the Principal in front of everyone. But the reasons for such outburst were not mentioned therein. It was thereafter a command performance was made to mobilise the parents and students to support the case of the Principal and they also conducted prayer meetings in his support. Even in the letter written by the first respondent to the third petitioner (in page 4), he had stated as follows:
The driver and the driver's family members are not interested to solve the problem instead they wanted to make the issue bigger to spoil the institution. Her mother motivated the girl to talk all unnecessary false allegation against the Principal and tarnish the image of the Vidyalaya.
34. It was a case of an orchestrated campaign. It was thereafter the second respondent (Deputy Commissioner) conducted an enquiry without any authority and sent a report dated 12.3.2003. The said report has neither any legal basis. He neither examined the victim girl nor her parents. Because at that time, the Driver had been transferred to a far off place and it was not clear as to what was the notice served on them. Further, they were also not legally required to give any statement before him.
35. In any event, the third petitioner, by his report dated 08.11.2002, has faithfully rendered the following findings against the first respondent:
1. On 27.10.202 a test was conducted for C1-X students. The Class-X students were detained in the vidyalaya with the permission of the undersigned during autumn break for special coaching. The daughter of the driver Ms. Lalasriatpuii Cssakcssuak, who is also a student of Cl-X did not came to attend the test. The Lungi clad Principal straightway went to her residence (a single room residence in the main school Bldg.) and bolted the door for inside, grasped the girl from backside, who was alone (parents were out of station) kissed her three times, fondled her breast for several minutes and also grasped her hand forcefully brought near to his private parts and asked her to fondle. After few seconds, he left the girl, went to the window side, took out a bed-sheet and started putting in the window, which was earlier without curtain. The girl understood the motive of the Principal that he may rape her, she rushed out of the room. After some time, when her parents came, she reported the matter to her parents. After knowing the incident, the mother of the girl started shouting in the Vidyalaya and created horrible scene infront of the Vidyalaya staff and students. Wife of the Principal, who is also a part-time teacher in the Vidyalaya after hearing this incident, fainted in the building itself. The girl also confessed that it was the third time that the Principal molested her but she did not disclosed it to her parents due to shyness.
From the above enquiry and facts, I come to conclusion that the approach of the Principal towards girl students are at all not desirable in his profession. This speaks very bad about a Principal of a Co-educational residential institution, who is considered to be father of the all the children of the vidayalaya and his activities are supposed to be a motivating factor for others but the action of the Principal in both the above cases reveals that he is totally demotivating factor and he has created harm in the modesty of the girl causing enormous trauma in the girl. The image of the vidayalaya and of the Samiti has been affected very adversely because of such action of the Principal.
With this categorical finding of the third respondent, if the guidance shown by the Supreme Court in Avinash Nagra's case (cited supra) is applied, then the CAT ought to have thrown out the case of the first respondent.
36. Therefore, no exception can be taken to the action initiated by the petitioners. The CAT did not discuss any of these issues in its order and merely went on its theme that there was no reason recorded for conducting a summary enquiry. No legal precedents were either referred to nor discussed by the CAT. The order of the CAT shows its anxiety to somehow grant relief to the first respondent without there being any iota of justification in this behalf.
37. In the light of the above legal precedents and the factual findings recorded, we have no hesitation in setting aside the order of the CAT dated 09.6.2005 made in O.A. No. 1027 of 2004. Accordingly, the writ petition is allowed and the order of the CAT is set aside. However, there will be no order as to costs. Connected Miscellaneous Petition is closed.