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.
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