Sunday, 21 March 2021

Whether the employer can hold an employee guilty for sexual harassment in departmental enquiry despite the pendency of criminal prosecution?


What emerges from the record is:


(a) There were two FIRs filed pursuant to reporting that Respondent No.1

was guilty of objectionable behavior with adolescent girl students in the

school. In both these FIRs the investigation was undertaken and chargesheets

stand filed. Thus, prima facie, the allegations made in the FIR were

found sustainable in police investigation and Respondent No.1 is presently

accused of having committed said offences.

(b) Pursuant to FIR bearing CR No.24 of 2014 Respondent No.1 was

arrested and remained in custody for about seven days.

(c) During the present inquiry 12 witnesses were examined out of whom five witnesses were girls studying in the school.

It was thus not just two girl students, pursuant to whose complaint the

crime was registered against Respondent No.1, but there were other students

as well. Some parents had also gone to the extent of levelling allegations

against Respondent No.1. The conclusion by the Convener in the report that

the charges were sensitive and that the case called for strict action, was

absolutely correct. On the other hand, the reports of the Nominee of

Respondent No.1 and the State Awardee Teacher not only show complete lack

of sensitivity but they also got bogged down unnecessarily by a question

whether any action on their part would amount to contempt of court or not. It

is well settled that a departmental proceeding and proceedings in a criminal

court are completely different. The purpose is different, the standard of proof

is different and the approach is also different. The initiation of the process in

a departmental proceeding, specially on charges with which we are concerned

in the present matter can never be said to be amounting to contempt of court

even if the criminal proceedings were pending. The allegations made against

Respondent No.1 were of such level and dimension that an immediate action

on the departmental front was required to be undertaken and such action by its

very nature had to be completely independent. Whether any criminal trial

was pending or not would not be having any bearing on the pending issue

before the Inquiry Committee. We have, therefore, no hesitation in observing

that the approach of the Nominee of Respondent No.1 and of the State Awardee Teacher was completely wrong and unsustainable.


Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3456 OF 2019


THE SECRETARY, LUCY SEQUEIRA TRUST Vs  KAILASH RAMESH TANDEL AND ORS.


Author: Uday Umesh Lalit, J.

Dated:April 08, 2019.

1. Leave granted.

2. This appeal is directed against the final judgment and order dated

04.09.2017 passed by the High Court of Judicature at Bombay in Writ Petition No.4383 of 2017.

3. Respondent No.1 was appointed as Assistant Teacher on 01.09.2004

in a school run by the Appellant. A warning was issued to him on 04.05.2009

for his objectionable behavior with adolescent girl students in said school. On

14.12.2012, mother of a teenaged student made a complaint against

 Names of these students are withheld.


Respondent No.1, pursuant to which a memo was issued to him on

24.01.2013. Another student* filed an FIR (C.R. No.67/13) dated 05.02.2013

against him alleging commission of offence punishable under Section 509

IPC. A letter was also received from the Police Station, Dindoshi, seeking

response from the Head Master of the school regarding the incident

mentioned in said FIR. The same student, thereafter, filed a written complaint

on 11.02.2013 against him.

4. On 15.02.2013, the Appellant wrote to the Education Inspector about

the FIR as aforesaid and sought permission to suspend Respondent No.1 and

to conduct an enquiry in the matter. A letter was also issued to Respondent

No.1 on 31.07.2013 that his confidential report was not good. On 16.01.2014

father of another adolescent girl* made a complaint to the Appellant about the

behavior of Respondent No.1 and stated that his daughter was not ready to go

to the school. A letter dated 20.01.2014 was, therefore, written by the

Appellant to Respondent No.1 but he refused to acknowledge the letter. Said

girl thereafter made a complaint to the police as a result of which FIR bearing

C.R.No.25/2014 dated 21.01.2014 was lodged against Respondent No.1 under

Section 354(a) of IPC read with Section 9(f), 10 and 11 of Protection of

Children from Sexual Offences Act, 2012. Respondent No.1 was arrested in connection with this FIR on 21.01.2014 and remained in custody till 28.01.2014.

5. In the aforesaid circumstances, the school Committee of the Appellant

being unhappy with the conduct of Respondent No.1 passed a Resolution on

31.01.2014 to take action against him. The Resolution was forwarded to the

Education Inspector. The Appellant, thereafter, suspended Respondent No.1

vide order dated 04.03.2014, pending enquiry against him and addressed a

letter to the Education Inspector on 05.03.2014 seeking approval of the

suspension order. On 07.03.2014 statement of allegations in terms of

Maharashtra Employees of Private Schools (Conditions of Service) Rules,

1981 (for short ‘the Rules’). After explanation was given by Respondent

No.1, charge-sheet was issued to him on 07.04.2014. The charges framed

against Respondent No.1 were as under:-

“1. It is charged against you that you have insulted the

modesty of one of the girl students of our School by the

name Ms. X*, who was then studying in 7th Standard, since

August 2012. You are also charged that you have also

mentally tortured her. And accordingly an FIR is lodged

against you at Dindoshi Police Station by Ms. X* alleging

an offence punishable U/Sec. 509 of IPC vide FIR beaing

No.67 of 2013, dated 05.02.2013. Charge Sheet is also

filed in this case. This is an act of serious misconduct and

moral turpitude.

2. It is charged against you that on 08.01.2014 you have

outraged the modesty of one of our girl student studying in

8th standard by the name Ms. Y* and have committed sexual

assault and you have sexually harassed her. She has lodged

an FIR at Dindoshi Police Station, bearing No.25 of 2014

dated 21.01.2014 against you alleging offences punishable

U/sec. 354-A of IPC read with Sec. 9(f)10,11 of the

Protection of Children from Sexual Offences Act, 2012.

You were arrested by the Police on 21.01.2014 and you

were in custody till 28.01.2014. These incidents brought

shame to the school.

This also an act of serious misconduct and moral

turpitude.”

6. On 21.04.2014 an Inquiry Committee was constituted consisting of

the Convenor being Nominee of the Appellant, Nominee of Respondent No.1

and a State Awardee Teacher. The Inquiry Committee examined both the girls

as well as other witnesses.

7. After conclusion of the inquiry, the Convenor submitted a Report on

20.09.2014 recommending that the service of Respondent No.1 be terminated.

The Report of the Convenor shows that 12 witnesses were examined, out of

which five witnesses were girls studying in the school. Various documents

were also produced on record. The Convenor in her Report concluded:-

“Hence as stated earlier, we come to the conclusion that the

charges as per the Charge-Sheet dated 07/04/2014 are

proved against the Delinquent. The charges are so

sensitive, as now-a-days these kinds of acts are reported in

various media. The school is a temple of knowledge and

the Girls students come to the school with great

expectations. And if in the temple of knowledge, if such

acts are allowed to take place, the image of temples of

knowledge will be tarnished. The Girls students will get

discouraged to come to school due to the fear and trauma.

A teacher is a Guru and in a Gurukul, the sanctity of

education ought to be maintained and respected. Hence,

we have no hesitation to recommend to the Management to

terminate the services of the Delinquent teacher. …”

8. Nominee of Respondent No.1 as well as the State Awardee Teacher,

however refused to sign the Report prepared by the Convenor. There are

observations in their reports that the guilt of the Respondent No.1 would be

conclusively dealt with in the pending criminal proceedings. Nominee of

Respondent No. 1 concluded:-

“6. As both cases of these charges or allegations are

pending before the Hon’ble Borivali Court and Hon’ble

Court of Sessions passing judgment about the same by the

Inquiry Committee and Management till the disposal of

these cases as per Rule 33(6) of the Rules, it would amount

to contempt of the Hon’ble Court. Therefore the Inquiry

Committee cannot give any reasoned decision.”

9. The State Awardee Teacher in her separate Report concluded:-

“Since the matters with respect to both the charges are

pending before the Borivali Court and Sessions Court, as

per Rule 36(6) till the disposal of these cases, giving

decision by the Inquiry committee will amount to

Contempt of the Court.”

10. The matter was, then considered by the Appellant and by its

Resolution dated 26.09.2014 the Appellant terminated the service of

Respondent No.1. Thereafter, Appeal No.34 of 2014 under Section 9 of the

Maharashtra Employees of Private Schools Act, 1977 (for short ‘the Act’) and

Rules framed thereunder was filed by Respondent No.1 before the School Tribunal, Mumbai Region, Mumbai. The application for stay was rejected by

the Tribunal on 15.12.2014. On 17.02.2017 the Tribunal partly allowed the

Appeal and remitted the matter for fresh consideration. It was observed that

the State Awardee Teacher and the Nominee of Respondent No.1 had not

given any firm decision as they had proceeded on the basis that if any

decision was given, it would amount to contempt of court, as criminal

proceedings were pending against Respondent No.1 before the Metropolitan

Magistrate’s Court, Borivili and Sessions Court, Dindoshi. The Tribunal

relied upon a decision of this Court in State of Punjab and Ors. vs. Dr.

Harbhajan Singh Greasy (1996) 9 SCC 322 to the effect that if an inquiry was found to be

faulty, the matter be remitted to the disciplinary authority to follow the

procedure from the stage at which the fault was pointed out and concluded as

under:-

“27. In view of the above facts and circumstances

in the light of ratio laid down by Hon’ble Supreme

Court in the cited supra cases, I am of the opinion that

the departmental enquiry is different than the criminal

proceedings. In case of departmental enquiry the

principle of preponderance of probability is applicable

whereas in case of criminal trial the principle beyond

reasonable doubt is applicable. Therefore, the State

Awardee Member and the nominee of the appellant

cannot keep their decision in abeyance till the outcome

of criminal case as per the principles of enquiry. As

per the provisions of Rules 1981 they have bounden

duty and responsibility to give their firm and final

decision and accordingly submit their report.

28. Considering the facts and circumstances of the case

in hand and in the light of ratio laid down by Hon’ble

Supreme Court in the cited supra case of Dr. Harbhajan

Singh, it is proper to remit the enquiry proceedings of

the case in hand for fresh enquiry from the stage of

submission of joint and combined final report by all the

members of the Inquiry Committee. …..…”

The tribunal while remitting the matter as aforesaid, directed

reinstatement of Respondent No.1, notionally for the purpose of conducting the inquiry.

11. The appellant, being aggrieved, challenged the decision of the

Tribunal by filing Writ Petition No.4383 of 2017 in the High Court. The

High Court by its judgment and order dated 04.09.2017 dismissed said Writ

Petition and upheld the order passed by the Tribunal. It held that the Tribunal was justified in remitting the matter as the nominee of Respondent No.1 and  the State Awardee Teacher had not given any clear-cut opinions. The High Court also directed that the exercise of conducting the inquiry be undertaken as expeditiously as possible and preferably within three months.

12. The appellant, being aggrieved, has challenged the view taken by the

High Court and the Tribunal before this Court. While issuing notice on

03.11.2017 the operation of the impugned order was stayed. After exchange of pleadings, the matter was taken up for final disposal. The learned Counsel for the appellant submitted that as many as five girls had given statements before the Committee and two of them had gone to the extent of filing criminal proceedings against Respondent No. 1. The girls were in the age

range of 13-14 years and the management had rightly taken the decision to

terminate the service of Respondent No.1 and that it would be hazardous to

have a teacher like him in the school. He further submitted that since

approach of two out of three members of the Inquiry Committee was

completely incorrect and they had not given any conclusive findings, the

management was competent to take a decision in the matter, which was not

only consistent with the findings of the Convenor but was otherwise

supported by the facts on record and was arrived at in a transparent manner.

13. Learned counsel for Respondent No.1, on the other hand, submitted

that the Committee comprised of three representatives and the State Awardee

Teacher, a completely dispassionate and impartial observer had concluded that

the inquiry must await the conclusion of proceedings in criminal cases. There

was thus, no justification for the Management to issue an order of termination.

In his submission, the Tribunal was justified in passing the directions in

question.

14. What emerges from the record is:


(a) There were two FIRs filed pursuant to reporting that Respondent No.1

was guilty of objectionable behavior with adolescent girl students in the

school. In both these FIRs the investigation was undertaken and chargesheets

stand filed. Thus, prima facie, the allegations made in the FIR were

found sustainable in police investigation and Respondent No.1 is presently

accused of having committed said offences.

(b) Pursuant to FIR bearing CR No.24 of 2014 Respondent No.1 was

arrested and remained in custody for about seven days.

(c) During the present inquiry 12 witnesses were examined out of whom five witnesses were girls studying in the school.

It was thus not just two girl students, pursuant to whose complaint the

crime was registered against Respondent No.1, but there were other students

as well. Some parents had also gone to the extent of levelling allegations

against Respondent No.1. The conclusion by the Convener in the report that

the charges were sensitive and that the case called for strict action, was

absolutely correct. On the other hand, the reports of the Nominee of

Respondent No.1 and the State Awardee Teacher not only show complete lack

of sensitivity but they also got bogged down unnecessarily by a question

whether any action on their part would amount to contempt of court or not. It

is well settled that a departmental proceeding and proceedings in a criminal

court are completely different. The purpose is different, the standard of proof

is different and the approach is also different. The initiation of the process in

a departmental proceeding, specially on charges with which we are concerned

in the present matter can never be said to be amounting to contempt of court

even if the criminal proceedings were pending. The allegations made against

Respondent No.1 were of such level and dimension that an immediate action

on the departmental front was required to be undertaken and such action by its

very nature had to be completely independent. Whether any criminal trial

was pending or not would not be having any bearing on the pending issue

before the Inquiry Committee. We have, therefore, no hesitation in observing

that the approach of the Nominee of Respondent No.1 and of the State Awardee Teacher was completely wrong and unsustainable.

15. The approach to be adopted in matters where allegations of sexual

harassment are made, is summed up in paragraph 28 of the decision of this

Court in Apparel Export Promotion Council v. A.K. Chopra. Said

paragraph is as under:-

“28. The observations made by the High Court to the

effect that since the respondent did not “actually molest”

Miss X but only “tried to molest” her and, therefore, his

removal from service was not warranted, rebel against

realism and lose their sanctity and credibility. In the instant

 (1999) 1 SCC 759

case, the behaviour of the respondent did not cease to be

outrageous for want of an actual assault or touch by the

superior officer. In a case involving charge of sexual

harassment or attempt to sexually molest, the courts are

required to examine the broader probabilities of a case and

not get swayed by insignificant discrepancies or narrow

technicalities or the dictionary meaning of the expression

“molestation”. They must examine the entire material to

determine the genuineness of the complaint. The statement

of the victim must be appreciated in the background of the

entire case. Where the evidence of the victim inspires

confidence, as is the position in the instant case, the courts

are obliged to rely on it. Such cases are required to be dealt

with great sensitivity. Sympathy in such cases in favour of

the superior officer is wholly misplaced and mercy has no

relevance. The High Court overlooked the ground realities

and ignored the fact that the conduct of the respondent

against his junior female employee, Miss X, was wholly

against moral sanctions, decency and was offensive to her

modesty. Reduction of punishment in a case like this is

bound to have a demoralising effect on the women

employees and is a retrograde step. There was no

justification for the High Court to interfere with the

punishment imposed by the departmental authorities. The

act of the respondent was unbecoming of good conduct and

behaviour expected from a superior officer and

undoubtedly amounted to sexual harassment of Miss X and

the punishment imposed by the appellant was thus

commensurate with the gravity of his objectionable

behaviour and did not warrant any interference by the High

Court in exercise of its power of judicial review.”

16. The facts also disclose that the Management had not taken any hasty

action in initiating the proceedings against Respondent No.1. The Appellant

had intimated the Department soon after the lodging of the first complaint by

girl students with the police. The order of suspension and initiation of inquiry

was preceded by a resolution passed by the School Committee of the

Appellant. Appropriately constituted Inquiry Committee then went into the

allegations where 12 persons including five girl students were examined as

witnesses. If the Nominee of Respondent No.1 and the State Awardee

Teacher had not given any final decision with clarity, since in their view it

would have amounted to contempt of court, the Appellant was justified in

relying upon the conclusions drawn by the Convener of the Inquiry

Committee and then pass an order of termination. In our view, the approach

adopted by the Management was not only fair and transparent but was in

keeping with what is expected of the Management where allegations of sexual

harassment of adolescent girls are in issue.

17. The Tribunal, as well as the High Court failed to appreciate the matter

in correct perspective. They ought to have accepted the decision taken by the

Management. We, therefore, allow this appeal, set aside the decision of the

Tribunal, as well as the High Court and affirm the order of termination

pursuant to resolution dated 26.09.2014 passed by the Appellant. No costs.

………..…..……..……J.

(Uday Umesh Lalit)

..………….……………J.

(Indira Banerjee)

New Delhi,

April 08, 2019.


Print Page

No comments:

Post a comment