Original Application No. 357 of 2002 · High Court · 2006

3. On receipt of the termination order dated 23.05.2002 the respond ent prayed for review of the said order but this prayer was turned down on 15.05 .2002. Thereafter, the respondent preferred an appeal before the learned Centra l Administrative Tribunal, Guwahati Bench, (the ’Tribunal’ in brief). This appe al was registered as Original Application No. 357 of 2002. The learned Tribunal , after hearing both the parties and on perusal of records set aside the order o f termination dated 23.05.2002 and directed the School authority to reinstate th e applicant in service with all consequential benefits. Being aggrieved with th is order of re-instatement, the Union of India and Kendriya Vidyalaya Sangathan has preferred this writ petition under Article 246 of the Constitution of India seeking a writ in the nature of certiorari and other appropriate direction.

4. We have heard Mr. S.C. Biswas, learned counsel for the petitioners. Sri R.K. Dutta appeared for the sole respondent. During the hearing, the learned c ounsel for the appellants also furnished copies of the statements of the girl st udents for perusal of this Court.

5. As noted earlier the enquiry was held in a summary procedure und er Article 81 (b) in Chapter 8 of the Education Code. The relevant provision is extracted below: \(b) Termination of Services of an Employee Found Guilty of Immoral Behaviour towards Students. Wherever the Commissioner is satisfied after such a summary enquiry as he deems proper and practicable in the circumstances of the case that any member of the K endriya Vidyalaya is prima facie guilty of moral turpitude involving sexual offe nce or exhibition of immoral sexual behaviour towards any student, he can termin ate the services of that employee by giving him one month’s or 3 month’s pay and allowances according as the guilty employee is temporary or permanent in the se rvice of the Sangathan. In such cases procedure prescribed for holding enquiry for imposing major penalty in accordance with CCS (CCA) Rules, 1965 as applicabl e to the employee of the Kendriya Vidyalaya Sangathan, shall be dispensed with, provided that the Commissioner is of the opinion that it is not expedient to hol d regular enquiry on account of serious embarrassment to the student or his guar dians or such other practical difficulties. The Commissioner shall record in wr iting the reasons under which it is not reasonably practicable to hold such enqu iry and he shall keep the Chairman of the Sangathan informed of the circumstance s leading to such termination of services.\

6. In the aforesaid Article the Commissioner is the appropriate aut hority to dispense with the procedure of regular enquiry if he is of the opinion that any such open and exhaustive enquiry may cause embarrassment to the studen ts or their guardians or for such other practical difficulties in the case befor e us. The allegation of sexual mis-behaviour with girl students squarely falls within the sweep of Article 81 (b). We do not see any illigality in adopting the summary procedure for holding the enquiry involving minor girl students in sexu al exploitation. Truly speaking the learned Tribunal has also not held that the summary enquiry was without jurisdiction or that it was not warranted in the s ituation.

7. The learned Tribunal has set aside the termination order drawing on certain adverse presumptions against the school authority as well as holding that the respondent/applicant was entitled to benefit of doubt since the first enquiry report did not implicate him for any moral turpitude. The relevant find ing on the merit of the case rendered by the Tribunal is extracted below for rea dy reference: \ We have given our anxious consideration in the matter. The materials on recor d including the alleged testimony of Alka Chhetri and Namita Rai made before the Court of enquiry headed by Major Rohitesh Kumar and the third enquiry held on 0 2.03.2002 even did not prima-facie indicate that the applicant was guilty of mor al turpitude involving sexual offence or exhibition of immoral sexual behaviour towards the students. Admittedly, there is no proof of any sexual offence or ex hibition of any immoral sexual behaviour.\

8. Before adverting to the factual correctness of the findings of t he learned Tribunal, we would like to mention here that the offence of sexual ha rassment at work place has been given a new shape and direction by the Hon’ble S upreme Court of India. In the internationally celebrated case of Vishaka & Ors. -Vs- State of Rajasthan & Ors. JT 1997 (7) SC 384; AIR 1997 SC 3011, the apex c ourt has expanded the definition of sexual harassment, holding that it would als o include: a) b) c) d) e) Physical contact and advances; A demand or request for sexual favours; Sexually coloured remarks; Showing pornography; Any other unwelcome physical, verbal or non-verbal conduct of sexual n ature.

9. It is true that in the aforementioned case the Hon’ble Supreme C ourt has given elaborate guidelines to take preventive steps and deal with alleg ations of sexual harassment at work place against working women. However, the u nderlying message of the authority is that the entire environment at work places should be free from sexual harassment. After the judgment of the Apex Court in the case of Vishaka (supra) the guilt of moral turpitude need not confine to su bstantive sexual harassment. To say differently any un-natural behaviour by a ma le staff with women in the work place connected with sexual activity would bring the offence within the parameters of moral turpitude. Unfortunately this progr essive judgment by the Apex Court has gone un-noticed by the Tribunal.

10. Coming through the evidence of sexual harassment, we find that a t last two girl students of the School, namely, Alka Chhetri and Namita Rai have explicitly indicted the present respondent in their sexual harassment. The rel evant part of these two girl students have been reflected in the impugned judgme nt which we would also like to reproduce in the present judgment for better appr eciation and understanding the gravity of the case. The statements of Alka Chh etri is as follows: \ I also want to narrate a particular act of mis-behaviour of Mr. S.S. Bidya, a group D employee of our school. Last year when I was in class VIII; in the month f November, we went for a class picnic without informing the school authorities within Lekhapani cantt. This act of ours was reported to the school authoritie s. Our parents were called to give explanation and apologize to the school, that the incident will not be repeated in future by their words. My mother was sitt ing in the clerks room adjoining principal office o write the applications. I w as told by Mr. S.S. Baidya to sit outside. As I moved outside, he followed me. As we stopped out of room, he pressed my breasts while stating \don’t worry not ing will happen\ and words to that effect in Hindi. I felt very bad at that par ticular moment.\ Incriminating part of the statement of Namita Rai, a student of class IX is also extracted below: \ I also have problems with Mr. S.S. Baidya who is a group ’D’ e 10.1 mployee of our school. He has always been trying to misbehave with me. He pass es comments on seeing me. Once when I was coming to school along with my friend Arpana, he said \come, I will treat you with hot samosa\ and words to that effe ct in Hindi. He even tried to hold me with his hand, and at times holds my shou lder. I try and avoid his as and when I see him.

11. A bare perusal of the above two statements leave no scope for cr itical analysis to say that it is a clear case of sexual harassment. In our cons idered opinion the statements clearly makes out a case of moral turpitude and se xual harassment in the context of wider definitions of the said offence given in the case of Vishaka (supra). The learned Tribunal has given emphasis for disbel ieving the said statements particularly on the ground that these two girl studen ts did not implicate the respondent in their earlier statements for obscure reas ons. However, we find from the record that the aforesaid students have satisfac torily given reasons for not disclosing the fact of sexual harassment earlier. W e are of the view that even if it was given belatedly on persuasion no doubt abo ut its truthfulness can be drawn.

12. From the set of documents submitted by the learned counsel for t he petitioners, we find that the statements of Alka Chhetri and Namita Rai were recorded thrice. On the first occasion statements of about one dozen girl studen ts were recorded. Few of them remained totally silent, whereas few students imp licated only two teachers of the school. However, in the second and third state ments of Namita Rai and Alka Chhetri they also implicated the respondent Sri Suj it Suklabaidya. We have already mentioned earlier that the entire enquiry in th ree stages took only one-week time. The principal of the School has clarified t hat second statement of the girls in the preliminary enquiry had to be recorded to find out the actual truth. Had it been a case of trying an accused for a cri minal offence certainly the court would have taken a serious note of the so-call ed improvement in the statements. However, in the matter of allegation of sexua l harassment against teachers and employees with teenaged girl students, the sam e standard of criminal trial, which requires proof of allegations beyond all rea sonable doubt, can not be adopted. The observation of the learned Tribunal that it appears \that the alleged enquiry was made to implicate the applicant\ does not appear to be acceptable to us in the facts and circumstances of the case.

13. The learned Tribunal has also taken exception for holding two en quiries and recording the statements of the students repeatedly. On this basis the Tribunal has held that the authorities, after getting materials against the teachers, also tried to rope in more persons by all means. We respectfully disag ree with the aforesaid presumption of the learned Tribunal in as much as there i s no material on record to indicate that either the students or their parents ha d any enmity or grudge against the present respondent. Besides this, the princi pal of the school had also clarified before the formal enquiry committee that th e second statement of few girl students had to be recorded since the first preli minary report dated 27.02.2002 did not give positive findings. In our consider o pinion the explanation of the principal for recording additional statements of t he victim girls is plausible and does not suffer from any vice or malafide actio n. At this stage, we would like to make it clear the preliminary report dated 0 2.03.2002 does not reflect the name of Namita Rai, although she had given indict able statement. Similarly the allegations made by Alka Chhetri have also not be en extracted in extenso in the said report. This may be un-intentional error. However, we are of the opinion that any report cannot supersede the evidence on record. In the present case, we find that Namita Rai had alleged that the respon dent Sri Sujit Suklabaidya used to tease her and touch her body under certain pr etext, which she did not like. However, this statement was dropped from the pre liminary report. Similarly the allegation of Alka Chhetri regarding fondling of her breasts has also been omitted from the report, although the finding has bee n given that the respondent was involved in sexual offence and misbehavior with girl students. Be that as it may, the second Committee has given a clear findin g of sexual harassment on the basis of the statements of above two students agai nst the present respondent. Educational Institutions are the platform for teaching moral val 14. ues. These are the places where the future of the society is given a shape. Hen ce, it is necessary that the entire environment of educational institutions shou ld be free from all kinds of pollution. No authority can be permitted to dilute the standard of moral behaviour of teachers and employees of schools to any ext ant. Having regard to the gravity and seriousness of the allegations against th e respondent, supported by statements of teenaged girls, we are unable to approv e the decision taken by the learned Tribunal with due respect.

15. In the result and for the reasons alluded hereinabove the writ p etition is accepted the impugned judgment and order dated 31.10.2003 passed by t he Central Administrative Tribunal. Guwahati Bench in O.A. No. 357 of 2002 stand s set aside. Consequently the order of termination of services of the respondent dated 23.05.2002 is hereby restored.