THE SECRETARY, LUCY SEQUEIRA TRUST AND ANR. versus KAILASH RAMESH TANDEL AND ORS. on 8 April 2019

1. Leave granted.

2. This appeal is directed against the final judgment and orderdated 04.09.2017 passed by the High Court of Judicature at Bombay inBWrit Petition No.4383 of 2017.

3. Respondent No.1 was appointed as Assistant Teacher on01.09.2004 in a school run by the Appellant. A warning was issued tohim on 04.05.2009 for his objectionable behavior with adolescent girlstudents in said school. On 14.12.2012, mother of a teenaged student[?]Cmade a complaint against Respondent No.1, pursuant to which a memowas 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 offencepunishable under Section 509 IPC. A letter was also received from thePolice Station, Dindoshi, seeking response from the Head Master of theDschool 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 Inspectorabout the FIR as aforesaid and sought permission to suspend RespondentNo.1 and to conduct an enquiry in the matter. A letter was also issued toRespondent No.1 on 31.07.2013 that his confidential report was not good.EOn 16.01.2014 father of another adolescent girl[*] made a complaint tothe Appellant about the behavior of Respondent No.1 and stated that hisdaughter was not ready to go to the school. A letter dated 20.01.2014was, therefore, written by the Appellant to Respondent No.1 but herefused to acknowledge the letter. Said girl thereafter made a complaintFto the police as a result of which FIR bearing C.R.No.25/2014 dated21.01.2014 was lodged against Respondent No.1 under Section 354(a)of IPC read with Section 9(f), 10 and 11 of Protection of Children fromSexual Offences Act, 2012. Respondent No.1 was arrested in connectionwith this FIR on 21.01.2014 and remained in custody till 28.01.2014.

5. In the aforesaid circumstances, the school Committee of theGAppellant being unhappy with the conduct of Respondent No.1 passed aResolution on 31.01.2014 to take action against him. The Resolutionwas forwarded to the Education Inspector. The Appellant, thereafter,suspended Respondent No.1 vide order dated 04.03.2014, pending H*Names of these students are withheld.

enquiry against him and addressed a letter to the Education Inspector on05.03.2014 seeking approval of the suspension order. On 07.03.2014statement of allegations in terms of Maharashtra Employees of PrivateSchools (Conditions of Service) Rules, 1981 (for short ‘the Rules’). Afterexplanation was given by Respondent No.1, charge-sheet was issued tohim on 07.04.2014. The charges framed against Respondent No.1 wereas under:- “1. It is charged against you that you have insulted the modesty ofone of the girl students of our School by the name Ms. X[*], whowas then studying in 7[th] Standard, since August 2012. You arealso charged that you have also mentally tortured her. Andaccordingly an FIR is lodged against you at Dindoshi Police Stationby Ms. X[* ]alleging an offence punishable U/Sec. 509 of IPC videFIR beaing No.67 of 2013, dated 05.02.2013. Charge Sheet isalso filed in this case. This is an act of serious misconduct andmoral turpitude.

2. It is charged against you that on 08.01.2014 you have outragedthe modesty of one of our girl student studying in 8[th] standard bythe name Ms. Y[*] and have committed sexual assault and youhave sexually harassed her. She has lodged an FIR at DindoshiPolice Station, bearing No.25 of 2014 dated 21.01.2014 againstyou alleging offences punishable U/sec. 354-A of IPC read withSec. 9(f)10,11 of the Protection of Children from Sexual OffencesAct, 2012. You were arrested by the Police on 21.01.2014 andyou were in custody till 28.01.2014. These incidents brought shameto the school.

This also an act of serious misconduct and moral turpitude.”

6. On 21.04.2014 an Inquiry Committee was constituted consistingof the Convenor being Nominee of the Appellant, Nominee of RespondentNo.1 and a State Awardee Teacher. The Inquiry Committee examinedboth the girls as well as other witnesses.

7. After conclusion of the inquiry, the Convenor submitted a Reporton 20.09.2014 recommending that the service of Respondent No.1 beterminated. The Report of the Convenor shows that 12 witnesses wereexamined, out of which five witnesses were girls studying in the school.Various documents were also produced on record. The Convenor in herReport concluded:- A

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A“Hence as stated earlier, we come to the conclusion that thecharges as per the Charge-Sheet dated 07/04/2014 are provedagainst the Delinquent. The charges are so sensitive, as now-a-days these kinds of acts are reported in various media. The schoolis a temple of knowledge and the Girls students come to the schoolwith great expectations. And if in the temple of knowledge, ifBsuch acts are allowed to take place, the image of temples ofknowledge will be tarnished. The Girls students will get discouragedto come to school due to the fear and trauma. A teacher is a Guruand in a Gurukul, the sanctity of education ought to be maintainedand respected. Hence, we have no hesitation to recommend toCthe Management to terminate the services of the Delinquentteacher. …”

8. Nominee of Respondent No.1 as well as the State AwardeeTeacher, however refused to sign the Report prepared by the Convenor.There are observations in their reports that the guilt of the RespondentDNo.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 pendingbefore the Hon’ble Borivali Court and Hon’ble Court of Sessionspassing judgment about the same by the Inquiry Committee andEManagement till the disposal of these cases as per Rule 33(6) ofthe Rules, it would amount to contempt of the Hon’ble Court.Therefore the Inquiry Committee cannot give any reasoneddecision.”

9. The State Awardee Teacher in her separate Report concluded:- F“Since the matters with respect to both the charges are pendingbefore the Borivali Court and Sessions Court, as per Rule 36(6)till the disposal of these cases, giving decision by the Inquirycommittee will amount to Contempt of the Court.”

10. The matter was, then considered by the Appellant and by itsGResolution dated 26.09.2014 the Appellant terminated the service ofRespondent No.1. Thereafter, Appeal No.34 of 2014 under Section 9 ofthe Maharashtra Employees of Private Schools Act, 1977 (for short ‘theAct’) and Rules framed thereunder was filed by Respondent No.1 beforethe School Tribunal, Mumbai Region, Mumbai. The application for stay H

was rejected by the Tribunal on 15.12.2014. On 17.02.2017 the Tribunalpartly allowed the Appeal and remitted the matter for fresh consideration.It was observed that the State Awardee Teacher and the Nominee ofRespondent No.1 had not given any firm decision as they had proceededon the basis that if any decision was given, it would amount to contemptof court, as criminal proceedings were pending against Respondent No.1before the Metropolitan Magistrate’s Court, Borivili and Sessions Court,Dindoshi. The Tribunal relied upon a decision of this Court in State ofPunjab and Ors. vs. Dr. Harbhajan Singh Greasy[1] to the effect thatif an inquiry was found to be faulty, the matter be remitted to thedisciplinary authority to follow the procedure from the stage at whichthe fault was pointed out and concluded as under:- “27. In view of the above facts and circumstances in the light ofratio laid down by Hon’ble Supreme Court in the cited supra cases,I am of the opinion that the departmental enquiry is different thanthe criminal proceedings. In case of departmental enquiry theprinciple of preponderance of probability is applicable whereas incase of criminal trial the principle beyond reasonable doubt isapplicable. Therefore, the State Awardee Member and thenominee of the appellant cannot keep their decision in abeyancetill the outcome of criminal case as per the principles of enquiry.As per the provisions of Rules 1981 they have bounden duty andresponsibility to give their firm and final decision and accordinglysubmit their report.

28. Considering the facts and circumstances of the case in handand in the light of ratio laid down by Hon’ble Supreme Court inthe cited supra case of Dr. Harbhajan Singh, it is proper to remitthe enquiry proceedings of the case in hand for fresh enquiryfrom the stage of submission of joint and combined final report byall the members of the Inquiry Committee. …..…”

The tribunal while remitting the matter as aforesaid, directedreinstatement of Respondent No.1, notionally for the purpose ofconducting the inquiry.

11. The appellant, being aggrieved, challenged the decision of theTribunal by filing Writ Petition No.4383 of 2017 in the High Court. TheHigh Court by its judgment and order dated 04.09.2017 dismissed said 1 (1996) 9 SCC 322

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AWrit Petition and upheld the order passed by the Tribunal. It held thatthe Tribunal was justified in remitting the matter as the nominee ofRespondent No.1 and the State Awardee Teacher had not given anyclear-cut opinions. The High Court also directed that the exercise ofconducting the inquiry be undertaken as expeditiously as possible andpreferably within three months.B

12. The appellant, being aggrieved, has challenged the view takenby the High Court and the Tribunal before this Court. While issuingnotice 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 fiveCgirls had given statements before the Committee and two of them hadgone to the extent of filing criminal proceedings against Respondent No.1. The girls were in the age range of 13-14 years and the managementhad rightly taken the decision to terminate the service of RespondentNo.1 and that it would be hazardous to have a teacher like him in theDschool. He further submitted that since approach of two out of threemembers of the Inquiry Committee was completely incorrect and theyhad not given any conclusive findings, the management was competentto take a decision in the matter, which was not only consistent with thefindings of the Convenor but was otherwise supported by the facts onrecord and was arrived at in a transparent manner.E

13. Learned counsel for Respondent No.1, on the other hand,submitted that the Committee comprised of three representatives andthe State Awardee Teacher, a completely dispassionate and impartialobserver had concluded that the inquiry must await the conclusion ofproceedings in criminal cases. There was thus, no justification for theFManagement to issue an order of termination. In his submission, theTribunal was justified in passing the directions in question.

14. What emerges from the record is:

(a) There were two FIRs filed pursuant to reporting thatRespondent No.1 was guilty of objectionable behavior withadolescent girl students in the school. In both these FIRs theinvestigation was undertaken and charge-sheets stand filed. Thus,prima facie, the allegations made in the FIR were found sustainablein police investigation and Respondent No.1 is presently accusedof having committed said offences.

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(b) Pursuant to FIR bearing CR No.24 of 2014 Respondent No.1was arrested and remained in custody for about seven days.

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

It was thus not just two girl students, pursuant to whose complaintthe crime was registered against Respondent No.1, but there were otherstudents as well. Some parents had also gone to the extent of levellingallegations against Respondent No.1. The conclusion by the Convenerin the report that the charges were sensitive and that the case called forstrict action, was absolutely correct. On the other hand, the reports ofthe Nominee of Respondent No.1 and the State Awardee Teacher notonly show complete lack of sensitivity but they also got bogged downunnecessarily by a question whether any action on their part would amountto contempt of court or not. It is well settled that a departmentalproceeding and proceedings in a criminal court are completely different.The purpose is different, the standard of proof is different and theapproach is also different. The initiation of the process in a departmentalproceeding, specially on charges with which we are concerned in thepresent matter can never be said to be amounting to contempt of courteven if the criminal proceedings were pending. The allegations madeagainst Respondent No.1 were of such level and dimension that animmediate action on the departmental front was required to be undertakenand such action by its very nature had to be completely independent.Whether any criminal trial was pending or not would not be having anybearing on the pending issue before the Inquiry Committee. We have,therefore, no hesitation in observing that the approach of the Nomineeof Respondent No.1 and of the State Awardee Teacher was completelywrong and unsustainable.

15. The approach to be adopted in matters where allegations ofsexual harassment are made, is summed up in paragraph 28 of the decisionof this Court in Apparel Export Promotion Council v. A.K. Chopra[2].Said paragraph is as under:- “28. The observations made by the High Court to the effect thatsince the respondent did not “actually molest” Miss X but only“tried to molest” her and, therefore, his removal from servicewas not warranted, rebel against realism and lose their sanctity A

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Aand credibility. In the instant case, the behaviour of the respondentdid not cease to be outrageous for want of an actual assault ortouch by the superior officer. In a case involving charge of sexualharassment or attempt to sexually molest, the courts are requiredto examine the broader probabilities of a case and not get swayedby insignificant discrepancies or narrow technicalities or theBdictionary meaning of the expression “molestation”. They mustexamine the entire material to determine the genuineness of thecomplaint. The statement of the victim must be appreciated in thebackground of the entire case. Where the evidence of the victiminspires confidence, as is the position in the instant case, the courtsCare obliged to rely on it. Such cases are required to be dealt withgreat sensitivity. Sympathy in such cases in favour of the superiorofficer is wholly misplaced and mercy has no relevance. The HighCourt overlooked the ground realities and ignored the fact thatthe conduct of the respondent against his junior female employee,Miss X, was wholly against moral sanctions, decency and wasDoffensive to her modesty. Reduction of punishment in a case likethis is bound to have a demoralising effect on the women employeesand is a retrograde step. There was no justification for the HighCourt to interfere with the punishment imposed by the departmentalauthorities. The act of the respondent was unbecoming of goodEconduct and behaviour expected from a superior officer andundoubtedly amounted to sexual harassment of Miss X and thepunishment imposed by the appellant was thus commensurate withthe gravity of his objectionable behaviour and did not warrant anyinterference by the High Court in exercise of its power of judicialreview.”

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16. The facts also disclose that the Management had not takenany hasty action in initiating the proceedings against Respondent No.1.The Appellant had intimated the Department soon after the lodging ofthe first complaint by girl students with the police. The order of suspensionand initiation of inquiry was preceded by a resolution passed by theGSchool Committee of the Appellant. Appropriately constituted InquiryCommittee then went into the allegations where 12 persons includingfive girl students were examined as witnesses. If the Nominee ofRespondent No.1 and the State Awardee Teacher had not given anyfinal decision with clarity, since in their view it would have amounted to H

contempt of court, the Appellant was justified in relying upon theconclusions drawn by the Convener of the Inquiry Committee and thenpass an order of termination. In our view, the approach adopted by theManagement was not only fair and transparent but was in keeping withwhat is expected of the Management where allegations of sexualharassment of adolescent girls are in issue.

17. The Tribunal, as well as the High Court failed to appreciatethe matter in correct perspective. They ought to have accepted thedecision taken by the Management. We, therefore, allow this appeal,set aside the decision of the Tribunal, as well as the High Court andaffirm the order of termination pursuant to resolution dated 26.09.2014passed by the Appellant. No costs.

Divya Pandey

Appeal allowed.

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