Srinivas Rajan v. The Director of Matriculation Schools

the said complaint, an incident that took place on 26.11.2010 wasalso referred to. It is unnecessary to deal with details of thecomplaint at this juncture.5.It is suffice to state that the same petitioner had earlierfiled a writ petition being W.P.No.28828 of 2010 seeking for adirection to the respondents to take action on his complaint. In thatwrit petition, apart from the Director and Inspector of MatriculationSchools, the fourth respondent Principal was also a party. This courtwithout going into the merits of the case, by an order, dated23.12.2010 disposed of the writ petition. It had directed thePrincipal (R-4) to take action on the complaint given by thepetitioner, dated 01.12.2010 within a period of four weeks. A copy ofthe order was forwarded by the petitioner to the third and fourthrespondents. The third respondent was also informed the fact that thepetitioner's son was refusing to go to the school as he was upset bythe language used by his Master (R-5). When the petitioner did notfind any action, he also sent a complaint to the second respondent,Child Rights Commission setting forth these facts for an appropriateaction. It is now claimed that since the earlier direction, dated23.12.2010 was given against the Principal without issuing notice, areview application (defective stage) is also pending. But, however noorders were passed in the said review application.6.In the meanwhile, when the matter came up on 4.2.2011, thisCourt passed the following interim order:"After hearing the learned counsel appearing on bothsides, including Mr.V.Selvaraj, Appearing for R5, thisCourt felt that appointment of a learned Senior Advocateof this Court to conduct a preliminary enquiry about R5teacher would enable this Court to decide about furthercourse.According, b consent of all the parties concernedMr.V.Prakash, learned Senior Counsel is appointed asAdvocate Commissioner to conduct a preliminary enquirywith regard to R5 and the report of the enquiry shall beproduced before this Court on 8.2.2011.The management of the school is directed to givenecessary assistance to the learned senior counsel tocomplete the process.Post on 8.2.2011."7.But, however, as directed by this court, no report by theAdvocate Commissioner was filed before that date. There was nothingon record to show that this court had granted any extension of time.In the meanwhile, when the matter came up before the learned Judge on11.3.2011, the learned Judge directed the matter to be posted before https://hcservices.ecourts.gov.in/hcservices/ some other Court after getting orders from the Hon'ble Chief Justice.Thus the matter came to be posted before this Court. Subsequently,when the matter was listed on 21.3.2011, this Court having found thatthe respondents 3 to 5 have not filed any counter affidavit directedthem to file counter affidavits. 8.The learned Advocate Commissioner who was present in the Courtwas enquired as to why the report was not filed before this court asdirected by the learned Judge who had appointed him as theCommissioner. On 23.3.2011, the Commissioner had filed the followingmemo along with enclosures with the Registry:"The undersigned was appointed as the AdvocateCommission in the above Writ proceedings and given timetill 08.02.2011 to file the report. It is submittedthat inspite of best efforts, as the number of peopleinterviewed were many and I had to go through the videorecordings and analyse the same, it took considerabletime. Further this was mentioned to the learned Judgewho was then hearing the matter and before whom thecase was posted after 08.02.2011, who permittedextension by adjourning the matter, though no formalorder of extension was recorded.The commission is filing the Report withAnnexures, with Transcripts and the Videograph of 19DVDs with dates of interviews written on same and alsothe list of persons interviewed, and the dates of theirinterview in a sealed cover to the Registrar (WRIT).Memo of Expenditure for Videography and Stenography isenclosed.It is therefore, prayed that this Hon'ble Courtmay be pleased to extend the time upto 23.03.2011,viz., today for submission of the report."II.The School's Response :9.When the matter came up on 25.3.2011, on behalf of the thirdand fourth respondents, a common counter affidavit was filed, butsworn to only by the third respondent. In the counter affidavit inparagraphs 3 to 5, it was averred as follows:"3.The petitioner along with three other parentsof students of Standard IX C submitted a complaint tothe third and fourth respondents on 01.12.2010 whereinthey alleged that Mr.Tharmen Fernandez, a teacher inthird respondent school allegedly involved in someunwanted conversation with the student namely KarthickAnnigeri during class hours on 26.11.2010. On enquiry https://hcservices.ecourts.gov.in/hcservices/ it was found not true because Mr.Tharmen Fernandez didnot attend class IX C on 26.11.2010.4.I submit that meanwhile, the petitioner filed awrit petition No.28828 of 2010 seeking a writ ofmandamus to the first respondent to take action againstthe third respondent school allegedly for not takingaction on the complaint of the petition dated01.12.2010. The fourth respondent conducted preliminaryenquiry and submitted preliminary report to the thirdrespondent. Before the third respondent could initiateaction as per law on the preliminary report submittedby the fourth respondent, the petitioner filed theabove writ petition and this Honourable Court appointedan Advocate Commissioner to conduct a preliminaryenquiry with regard to fifth respondent and submitreport to this Honourable Court. As the learnedadvocate commissioner conducted in camera enquiryproceedings in the school premises wherein students,staff and parents deposed in camera and the same hasbeen videpgraphed. Hence, Parallel enquiry was notconducted by the third respondent awaiting the copy ofthe report of the learned Advocate Commissioner.5.The third respondent submits that appropriateaction will be taken by the third respondent inaccordance with law on the basis of the report to besubmitted by the learned Advocate Commissioner."(Emphasis added)10.The fifth respondent after denying the specific allegationsmade against him, in paragraph 14 made allegations against thePrincipal of the School, who is the fourth respondent. In paragraph16, he contended that since the school had not conducted any enquiry,the petitioner cannot invoke the extraordinary jurisdiction of thiscourt. In paragraph 17, he also stated that the second respondentChild Rights Commission is only the Non Governmental Agency and not areal commission. He also reserved his liberty to file a detailedcounter affidavit after the receipt of the enquiry report by theSenior Counsel.11.In the consolidated typed set filed on behalf of thepetitioner, several documents were enclosed including the letter,dated 28.1.2011 sent by the fourth respondent Principal to the thirdrespondent Correspondent making serious charges against the fifthrespondent. He had also stated that the complaint sent by thepetitioner's father, dated 1.12.2010 was a true and genuine complaintand that the fifth respondent had not refuted and denied theallegations made in the complaint given on 19.1.2011. In his letter https://hcservices.ecourts.gov.in/hcservices/ in pages 2 and 3, he had made the following allegations against thefifth respondent, which reads as follows:"At the outset I have to point out that there is noreason for the students of tender age to make a complaintagainst the said Teacher Mr.Tarmon E.Fernandez. In otherwords there is no motive for students to come forwardwith the complaint against Mr.Tarmon E.Fernandez who isonly one among the 40 teaching staff in the HigherSecondary School. It is seen from the writings given bythe students that Mr.Tarmon E.Fernandez had been makingderogatory remarks against his own colleagueMr.Nandagopal and his family members including hisdaughter. He is also making derogatory remarks againstthe lady teacher's by calling them 'Bitch'. He is alsomaking derogatory remarks against the other students.Some of the students have complained that he is callingone of the co-teacher as a laughing jackass. It is seenfrom the complaint that the students are mentallydisturbed and affected and did not want to attend schooland the classes of Mr.Tarmon E.Fernandez. Since it ishappening inside and outside the class room I see theproblem as something severe and not related to one classbut to the students of the school and the said teacher ingeneral and so it is dangerous. It is seen from the parents complaints that he isbeating up the children, asking them to sit on the floorand during the exams he refused to give answer sheets tothe students when he was invigilating and ask thestudents to pick up the paper which he had deliberatelythrown on the floor.It is seen from the complaints of the co-teachersthat Mr.Tarmon E.Fernandez is abusing his position as ateacher and converting the class room as a platform tohold insulting abuses against some of the students, co-teacher including lady teachers and the institution.One of the parents Mr.Srinvas Rajan has producedsome of the Medical Test undergone by his son Sudarshan,as the result of the humiliation suffered in the hands ofthe concerned teacher. I have also received a subsequentletter from Mr.Srinivas Rajan on 13.1.2011 stating thatMr.Fernandez is using abusive language whenever he ispassing on the corridor of the school and playgroundduring the days after lodging the complaint to theCorrespondent. He has also said that his son Sudarshan ismentally upset, disturbed by the language used by theteacher. I have also received a complaint on Mr.Tarmon https://hcservices.ecourts.gov.in/hcservices/ E.Fernandez from 10 lady teachers on 6.1.2011 againstMr.Tarmon E.Fernandez making very serious allegationsagainst him. It is disturbing to read the complaint thatFernandez used....... while speaking to the otherpersons. I was surprised and astonished to hear from thelady teachers the trauma they are undergoing because ofMr.Tarmon E.Fernandez behaviour. They say as teachersthey are not able to fulfill their duties and theirrespect and dignity in front of their students isshattered. Lady teachers feel that such a behaviour froma co-staff member to demoralize them is affecting theircareer as teachers. Some allegations are also madeagainst the teacher concerned as to how he waste his timeduring the school hours instead of usefully spending itin teaching the students.As per the directions by the Hon'ble High Court, Icalled upon Mr.Tarmon E.Fernandez to submit anexplanation on the complaints dated 1.12.2010 and alsothe subsequent complaints, by letter dated 19.1.2011. Hewas required to submit a reply within days on receipt ofthe letter. On 27.1.2011, he requested for more time andhe has no explanation to offer on the complaints given tohim. In order to avoid further legal proceedings onmyself and this esteemed institution for not adhering tothe directions of the Hon'ble High Court and for notacting on the complaints, I am submitting my report."(Emphasis added)12.In page No.4 he had recommended the following action againstfifth respondent, which reads as follows:"Hence, Respected Fr.Rector and Correspondence, inview of the above, I strongly recommend that the teacherwho has not been assigned teaching work on and from9.12.2010 should be dealt with severely in the largerinterests of the institution and in the interest of thestudents, parents and co-teachers including the ladyteachers. The nature of the misconduct committed by theteacher is a serious one, warranting imposition ofmaximum punishment to the extent such incidences shouldnot happen in the interest of the school."In his report the Principal (R-4) also referred to a recent incidentwhere the fifth respondent after applying for leave went for renewinghis gun license. It was stated that he had got it renewed and alsoretaining his gun with him. https://hcservices.ecourts.gov.in/hcservices/

13.When the matter came up on 28.3.2011, an additional affidavitwas filed by the petitioner making serious allegations against thefifth respondent including an allegation of a criminal complaintgiven against him which is pending with Choolaimedu F-5 PoliceStation, dated 21.2.2011 and the FIR in Veperi Police Station inCrime No.206 of 2011, dated 7.3.2011. A copy of the criminalcomplaint showed that threatening calls were received by some of theparents through SMS sent to their mobile numbers. It was informedthat subsequent to the filing of the FIR, the fifth respondent hasfiled an anticipatory bail petition and that charges were also filedbefore an appropriate court. In support of the criminal complaintmade against the fifth respondent, supporting affidavits were filedby M/s.S.Peter Joesph Irudayaraj and Jerome Dominic, who are the twoteachers working in the school and who had received threatening callsfor having deposed before the Advocate Commissioner.14.In the additional affidavit filed by the petitioner, it wasclaimed that on 26.11.2010 during the class hours, the fifthrespondent instead of teaching History, involved himself inconversation with students. Though the management had taken the standthat no History class was scheduled for standard 9-C on that day, itwas claimed that the fifth respondent was teaching History for thestandard 9-D. During the middle of the class hours, he walked outfrom his class seeing Karthick Annigeri who was walking towards hisclass, i.e., 9-C which class room was situated diagonally opposite toClass 9-D. He had picked up conversation with the student. Suchincident was clearly narrated to the school authorities. It wasrather unfortunate that the school authorities chose to deny the saidevent. The petitioner also took exception to the counsel for thethird respondent informing this court that the Principal was theculprit and that he will be transferred out of the school. 15.To this additional affidavit, two counter affidavits werefiled. One by the third and fourth respondents, dated 30.3.2011 andthe another by the fifth respondent, dated 30.3.2011. In the counteraffidavit filed on behalf of the third and fourth respondents, onceagain after controverting the allegations made by the petitioner, inparagraphs 3 and 4, the following undertaking was given and the samereads as follows:"3....Hence, the school management is prepared toconduct a detailed enquiry in respect of this allegationby the petitioner against the fifth respondent.4....I assure this Honourable Court that proper enquiryin accordance with law will be conducted into all theallegations made by the petitioner in his complaint aswell as in his affidavit filed in the above writpetition, including alleged violation of child right andalso about two criminal complaints alleged to have been https://hcservices.ecourts.gov.in/hcservices/ filed against the fifth respondent by some teachers ofour school."16.With reference to the transfer of the fourth respondentPrincipal, it was stated that the South Indian Salesian Society isthe Supreme authority in respect of the management and that thepetitioner has no right to comment on the management.III.The Teacher's response :17.In the fifth respondent's counter affidavit, apart fromdenying the allegations made by the petitioner, it was stated that nodoubt an FIR was pending investigation, but, no charge sheet wasfiled against him so far. It was stated that when actually themanagement was taking action and this court had ordered preliminaryenquiry, there is no necessity to grant the prayer of the petitioner.IV.Court Commissioner under Attack :18.When the matter was listed on 30.3.2011, the counsel for thepetitioner Mr.N.L.Rajah made serious allegations on the proceduresadopted by the Advocate Commissioner and also impropriety of hisvideographing the deposition without any authority. However, thisCourt informed him that unless a proper affidavit was filed, thiscourt cannot call for any remarks from the Advocate Commissioner andtill such time, this court will not open the sealed cover submittedby the Advocate Commissioner along with his memo, dated 23.3.2010.Therefore, after the matter was adjourned to 1.4.2011, the petitionerhad filed an affidavit sworn to on 30.3.2011. 19.In that affidavit, the following allegations were made againstthe Advocate Commissioner:- "(a)The Commissioner did not submit his reportwithin time as directed by this Court.(b)He was not expected to conduct a roving enquiry,but was to submit a report on a preliminary enquiry.(c)The manner in which the enquiry was conducted andthe mode adopted by him lack impartiality and propriety. (d)He had videographed the proceedings in whichchildren who are minor were deposing and that thepetitioner's son himself complained about facing camera.The children were cross examined by the Enquiry Officer. (e)The Commissioner did not give notices to thecounsel appearing for both sides while recording evidenceof several witnesses.(f)The Commissioner had gone to St. Bede's HigherSecondary School, met Fr.John Joseph and enquired aboutthe complaint. This was also done without notice to thepetitioner also. https://hcservices.ecourts.gov.in/hcservices/ (g)The Commissioner had several telephonicconversations with Rev.Fr.Provincial after completion ofthe enquiry and he had met him on 21.2.2011. This wasalso done without notice to the petitioner." Therefore, they prayed for passing orders without reference to thereport of the Advocate Commissioner and they requested for rejectionof the report as he had misconducted himself and the proceedingsconducted were vitiated.20.In the meanwhile, arguments were heard on the main writpetition regarding its maintainability, desirability of a referenceto R-2 as well as the nature of the order to be passed. After thesubmission of the allegations against the Advocate Commissioner on1.4.2011, this Court directed the counsel for the petitioner toissue notice to the Commissioner and to serve a copy of the affidavitand also directed the Commissioner to file his remarks before thiscourt before 5.4.2011. 21.Accordingly, the Advocate Commissioner had filed a replyaffidavit, dated 5.4.2011. In the reply affidavit, he had stated thatall parties have agreed for incamera proceedings. While theStenographer was asked to take notes, the videograph was made toensure accuracy. As per his notes, he proceeded with the preliminaryenquiry incamera. He had also enquired only when there was a primafacie material in respect of fifth respondent and that the complaintgiven by the petitioner and three others dated 01.12.2010 was thesubject matter of preliminary enquiry. During the preliminaryenquiry, since he found out that there was no History class for 9-Cby the fifth respondent, he decided to go deeper to find out if thesaid allegation made in the complaint could have happened. The motiveattributed to him in this regard was without any substance. Duringvideograph, no flash lights were used. He had submitted that if thevideograph was viewed by this court, it will show that the childrenwere very comfortable and very articulate. The members of ParentsTeachers' Association were interviewed in connection with the motiveattributed by the fifth respondent in respect of the complaint. Whileinterviewing some students without parents' permission, they camevoluntarily. The videograph recordings will show that fair procedurewas adopted. Since the petitioner had relied upon the statement ofRev.Fr.John Joseph to substantiate his complaint, the Commissionerthought it fit that it will throw some light on the subject. He didnot rely upon his interview as Rev.Fr. John Joseph pleadedconfidentiality and that he is related to the petitioner's wife. Thecounsel for respondents 3 and 4 Mr.Immanuel sounded the Commissionerwhether he was willing to talk to Rev. Fr.Provincial if he would callhim. He did not find any harm or injustice in talking to Rev.Fr.Provincial. https://hcservices.ecourts.gov.in/hcservices/

22.The third respondent volunteered to file an additional counteraffidavit to support the stand of the Advocate Commissioner, statingthat with the oral consent of parties, incamera proceedings wereconducted and videograph was made. This averment made in paragraph 2is not even the case pleaded by the Advocate Commissioner. Nowherethe Advocate Commissioner had stated that he took consent of partiesfor videographing the deposition of children. With reference tomeeting of Rev.Fr. Provincial, the allegation that the Commissionerhad several rounds of talks after completion of the enquiry was nottrue. Rev.Fr. Provincial with the knowledge of the counsel for thethird respondent had wanted to know from the Advocate Commissioner asto when his report will be submitted. This averment of the thirdrespondent is quite contradictory to the statement by the AdvocateCommissioner. He himself had not denied the allegations made againsthim by the petitioner.23.Finally, the third respondent had requested a copy of theCommissioner's report along with CDs to file objections by third andfourth respondents. In the earliest affidavit, they were willing toabide by the Commissioner's report for taking action. After seeingthe objections made against the Advocate Commissioner, they reservedtheir right to file an objection on the report.24.This Court had also asked the Advocate Commissioner in theopen court on 5.4.2011 whether the Advocate Commissioner gave noticeto both side counsels before he interviewed Rev.Fr. Provincial,Rev.Fr. John Joseph (former Correspondent), Rev.Ft.Rector andRev.Fr.Principal. The Commissioner had replied in the negative.Likewise, when the Commissioner was asked whether he took permissionfrom this court for videogrphing the children's evidence, he onceagain replied in the negative. As to whether any of the guardians ofthe children were allowed to be present during videograph, theCommissioner once again replied in negative. When he was furtherasked whether his meeting with Rev.Fr. Provincial was recorded in hisreport, he again fairly stated that he did not record the interviewof Rev. Fr. Provincia.V.Commission's omissions : 25.In view of the above, before going into the merits of thecase, this court decided to reject the report of the AdvocateCommissioner as he had gone beyond the terms of his warrant and thedischarge of his duties was not done properly. It is necessary torecord the following findings on the procedure adopted by theAdvocate Commissioner:a)He had not submitted the report within the timeframe given by this court.b)He had not conducted any preliminary enquiry to https://hcservices.ecourts.gov.in/hcservices/ submit his report by recording the submissions of theconcerned persons. On the contrary, he had quizzed thechildren by an inquisitorial enquiry. c)He had interviewed persons without notice to counselfor both sides. d)Though the Commissioner had stated that he hadconducted incamera proceedings, but the proceedings wereconducted in the absence of counsels for both sides. e)The statement made by the Commissioner in hisinterview with Rev.Fr. Rector clearly showed that theCommissioner had misunderstood his role rather than beingan instrument of this court for getting materials, he hadundertaken the job of a troubleshooter. f)Serious complaints made by teachers against thefifth respondent clearly bordering on sexual harassmentwere overlooked by the Commissioner in his report bystating that it is beyond the scope of warrant issued tohim. But yet at the same time, while examiningRev.Fr.Rector, the Enquiry Officer had made all kinds ofstatements as can be seen below:"EO:-I am going to make recommendations. My own projectis one of healing process. Assuming for a minute, Igive against this teacher then he leaves, is thisinstitution going to be happy. Similarly I can say thatparents who gave complaint I said vindictive, ischildren going to be happy. It is most important forthe welfare of the Institution."g)He unnecessarily enquired one Rev.Fr.John Joseph whowas no longer in school and was residing at St. Bede'sSchool, Santhome and that who was earlier the Correspondentbetween 1975 to 1980. The enquiry officer had made thefollowing questions:"EO:...When the matter came up before the HighCourt, the High Court asked me to do a preliminaryenquiry into the matter. This is strictlyconfidential. The main thing is that I have askedlot of questions to students and teachers. DidTormon met you at any time, What did you tell aboutthis? Rajan married Josephine now her name is SnehaRaja. Your name came up during the course of enquiryand Tormon said that he came here to meet you. I askyou some questions about the two issues. Had https://hcservices.ecourts.gov.in/hcservices/ Mr.Tormon met on any day"But he had discarded the answers given by Rev.Fr.JohnJoseph on the ground he expressed confidentiality of hisconversation and that he was related to the wife of thewrit petitioner.h)He had also not recorded in his report about hismeeting with Rev.Fr. Provincial. This seriously vitiatesthe procedures adopted by him. i)When the parties were at loggerheads before thiscourt, he should not have met the head of the respondentinstitution and superior authority to the third and fourthrespondents herein. Further, he had not disclosed to thiscourt the nature of the interview or discussions that hehad with Rev.Fr.Provincial. j)While videpgrphing the questions and answers fromthe students, he had failed to protect the interest of thechildren and did not allow the child's guardian to bepresent in the enquiry. On the one hand, he had statedthat he enquired only about the complaint against thefifth respondent, dated 1.12.2010, but on the other hand,he went on a roving enquiry and questioned even theteachers. Having found that teachers have made seriousallegations against fifth respondent, he had quietlydiscarded the statement made by the teachers. k)All that the Advocate Commissioner was expected todo was to visit the school and record the statement eitherin long handwriting or taken on short hand and got ittranscribed and compiled those statements and must havepresented the same to the Court. In that event, the courtwould have formed an opinion on the matter. On the otherhand, he had not only given findings in respect of eachissue, but even suggested that the administration warningwill be a sufficient punishment to the fifth respondent. VI.Child requires protection :26.As to how a child witness should be enquired by Courts came tobe considered by the Supreme Court in Sakshi Vs. Union of Indiareported in (2004) 5 SCC 518. The following passages found inparagraphs 27(1) and 28 may be usefully reproduced below:"27.The other aspect which has been highlighted andneeds consideration relates to providing protection toa victim of sexual abuse at the time of recording hisstatement in court. The main suggestions made by thepetitioner are for incorporating special provisions inchild sexual abuse cases to the following effect: https://hcservices.ecourts.gov.in/hcservices/ (i) Permitting use of a videotaped interview of thechild’s statement by the judge (in the presence of achild-support person).........28.The Law Commission, in its response, did not acceptthe said request in view of Section 273 CrPC as in itsopinion the principle of the said section which isfounded upon natural justice, cannot be done away within trials and inquiries concerning sexual offences. TheCommission, however, observed that in an appropriatecase it may be open to the prosecution to request thecourt to provide a screen in such a manner that thevictim does not see the accused while at the same timeprovide an opportunity to the accused to listen to thetestimony of the victim and give appropriateinstructions to his counsel for an effective cross-examination. The Law Commission suggested that with aview to allay any apprehensions on this score, aproviso can be placed above the Explanation to Section273 of the Criminal Procedure Code to the followingeffect: “Provided that where the evidence of a personbelow sixteen years who is alleged to have beensubjected to sexual assault or any other sexualoffence, is to be recorded, the court may takeappropriate measures to ensure that such personis not confronted by the accused while at thesame time ensuring the right of cross-examination of the accused.”27.Further a division bench of this court had also given seriesof directions with reference to recording of child witness in a suomotu writ petition in W.P.No.36807 of 2006, dated 31.10.2006 inDirector, Tamil Nadu State Judicial Academy, Chennai Vs.STate ofTamil Nadu and others. That was given in the context that the victimis a child and set out basic principles therein as pointed out by theSupreme Court in Sakshi's case (cited supra). This court wile givingseries of directions relating to child witness in the division benchjudgment had referred to several expert committee's report in thisregard. In fact one such Expert Committee had stated as follows:"The prosecutor may apply at any time for an order that achild's testimony at a preliminary hearing, in additionto being steno graphically recorded, be videotaped." https://hcservices.ecourts.gov.in/hcservices/ VII.Report to be under wraps :28.In view of the above, there is no option for this court exceptto reject the report submitted by him and also the minutes recordedas well as videographs presented by him. The Registry is herebydirected to keep the entire records in a sealed cover unlesspermitted or ordered by this Court to be given to parties. This isespecially in view of the sensitive nature of the issue and that thereveal of the report along with the minutes may result invictimisation of individuals. If the report of the Commissioner isrejected, then the question will have to be raised for considerationis as to what relief can be given to the parties. VIII.Is Child Rights Commission a toothless Tiger?29.Mr.M.Venkatachalapathy, learned Senior Counsel appearing forfifth respondent submitted that the complaint made by the petitionerwill not come within the province of the Commission for Protection ofChild Rights Act, 2005. Therefore, there was no necessity to issue adirection to the Commission to make an enquiry on the same. But thiscontention of the learned Senior Counsel was erroneous since the term"child rights" is defined on broad terms under Section 2(b) of theAct which reads as follows:"(b)"child rights" includes the children's rightsadopted in the United Nations convention on theRights of the Child on 20th November, 1989 andratified by the Government of India on the 11thDecember, 1992;"30.As can be seen from the said definition, the Convention ofRights of the Child, dated 20.11.1989 is valid and the Commission haspower to enquire into such a complaint and even can take a suo motunotice on the matter relating to deprivation and violation of childrights, non implementation of law providing for protection anddevelopment of children, non compliance of policy decisions,guidelines or instructions aimed at mitigating hardships to andensuring welfare of the children and to provide relief to suchchildren or take up the issues arising out of such matters withappropriate authorities. For deciding these matters, the Commissionhas been empowered with the power of a Civil Court under Section 14. 31.Under Section 15, the Commission can take up the followingsteps after completion of the enquiry. The first step is that ondisclosing, the Commission of violation of child rights of a seriousnature or contravention of provisions of any law for the time beingin force, can recommend the concerned Government or the Authority toinitiate proceedings for prosecution or such other action which theCommission may deem fit against concerned persons. The second step is https://hcservices.ecourts.gov.in/hcservices/ to approach the Supreme Court or the High Court concerned for suchdirection, order or writ as the Court may deem it necessary. Thethird step is to recommend to the concerned Government or authorityfor grant of such interim relief to the victim or member of thefamily as the Commission may consider necessary.32.Since the definition of child rights found in Section 2(b)referred to United Nations Convention, dated 20.11.1989, it isnecessary to refer to relevant articles from that Convention. Article16 of the Convention reads as follows:Article 161.No child shall be subjected to arbitrary orunlawful interference with his or her privacy, family,home or correspondence, nor to unlawful attacks on hisor her honour and reputation.2.The child has the right to the protection ofthe law against such interference or attacks."Article 28(2) reads as follows:"2.States Parties shall take all appropriatemeasures to ensure that school discipline isadministered in a manner consistent with the child'shuman dignity and in conformity with the presentConvention."33.Therefore, it cannot be said that the Commission has no rightto enquire into the complaint sent by the petitioner. But, at thesame time, it has to be seen whether any immediate purpose will beserved by making such direction. Though the Commission has power ofthe Civil Court for making an enquiry, but after any report made bythe Commission, Section 15 sets out the steps the Commission can maketo implement its report as noted already. The Commission by itselfcannot direct its order to be obeyed by any authority and thateither it requires further steps to be taken by the concernedGovernment or by the Court. In this context, it will be worthwhile tonote an interpretation made by the Supreme Court regarding the powersof the National Commission for SC/ST constituted under Article 338 ofthe Constitution.34.The question arose whether the Commission which has the powerof a Civil Court can order stopping of the promotion processinitiated by a Nationalised Bank on the ground that it did notsatisfy the constitutional requirements. In that context, the SupremeCourt vide its judgment in All India Indian Overseas Bank SC ad STEmployees' Welfare Association and others Vs. Union of India andothers reported on (1996) 6 SCC 606 framed the following question asfound in paragraph 3, which reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "3.The short question that arises for considerationin this matter is whether the Commission had the powerto issue a direction in the nature of an interiminjunction?..."In paragraphs 10 and 11, the following answers were given by theSupreme Court, which reads as follows:"10.Interestingly, here, in clause (8) of Article 338,the words used are “the Commission shall ... have allthe powers of the Civil Court trying a suit”. But thewords “all the powers of a Civil Court” have to beexercised “while investigating any matter referred to insub-clause (a) or inquiring into any complaint referredto in sub-clause (b) of clause 5”. All the proceduralpowers of a civil court are given to the Commission forthe purpose of investigating and inquiring into thesematters and that too for that limited purpose only. Thepowers of a civil court of granting injunctions,temporary or permanent, do not inhere in the Commissionnor can such a power be inferred or derived from areading of clause (8) of Article 338 of theConstitution.11.The Commission having not been specifically grantedany power to issue interim injunctions, lacks theauthority to issue an order of the type found in theletter dated 4-3-1993. The order itself being bad forwant of jurisdiction, all other questions andconsiderations raised in the appeal are redundant. TheHigh Court was justified in taking the view it did. Theappeal is dismissed. No costs."35.Therefore, if it is seen in the context of the above judgment,if any direction was given as prayed for by the petitioner,ultimately he may not get any relief except highlighting thegrievances projected by him on behalf of his ward in a nationalforum. 36.The counsel for the school management himself was not willingto have the matter referred to the Commission for Child Rights (R-2).On the other hand, in the common counter affidavit, dated 24.3.2011,it was stated that it will abide by the report of the Commissioner.But, this was even before the report of the Advocate Commissioner wasmade known or submitted to the Court. However, with wiser counselprevails, in the additional affidavit submitted on 30.3.2011, theyhad assured for conducting a proper and detailed enquiry as notedabove. https://hcservices.ecourts.gov.in/hcservices/ IX.Moulding the Relief :37.Since the matters have been brought before this court andconsidering the serious nature of allegations made against the fifthrespondent and also the willingness of the school management toconduct a detailed enquiry, this Court has decided to give certaindirections on the basis of the following prima facie findings.38.As to whether this Court can mould a relief in a petitionunder Article 226 though not asked by a petitioner came to beconsidered by the Supreme Court in LIC of India v. ConsumerEducation & Research Centre, (1995) 5 SCC 482. It is necessary toextract the following passage found in paragraph 29 which is asfollows:"29..... The arms of the High Court are not shackled withtechnical rules or procedure. The actions of the State,its instrumentality, any public authority or person whoseactions bear insignia of public law element or publiccharacter are amenable to judicial review and thevalidity of such an action would be tested on the anvilof Article 14. While exercising the power under Article226 the Court would be circumspect to adjudicate thedisputes arising out of the contract depending on thefacts and circumstances in a given case. The distinctionbetween the public law remedy and private law fieldcannot be demarcated with precision. Each case has to beexamined on its own facts and circumstances to find outthe nature of the activity or scope and nature of thecontroversy. The distinction between public law andprivate law remedy is now narrowed down. The actions ofthe appellants bear public character with an imprint ofpublic interest element in their offers regarding termsand conditions mentioned in the appropriate tableinviting the public to enter into contract of lifeinsurance. It is not a pure and simple private lawdispute without any insignia of public element....."39.The third respondent himself was willing to conduct an enquiryin respect of the allegations made against the fifth respondent. TheCommissioner had collected 33 documents and only photocopies wereenclosed, thereby indicating the originals were available with theSchool. The nature of the complaint made against the fifth respondentcan be broadly classified into two heads. The first relating to hisconduct of misbehaving with the school children which was notexpected of a teacher of a school. The school is admittedly aMatriculation School coming under the control of the first respondentDirector of Matriculation Schools and is governed by the Code ofRegulations of Matriculation Schools. The Principal of the School,(the fourth respondent) under Regulation 27 is completely in-chargeof discipline of students of the school. With reference todisciplinary action against a teacher, it is the management of the https://hcservices.ecourts.gov.in/hcservices/ school, which has the power to inflict punishment on a teacher forwillful negligence of duty, serious misconduct, grave insubordinationand mental unfitness. Regulation No.20 deals with the procedure forinflicting a major punishment, which is as follows:"Subject to the proviso given below:-(i)The school authority shall not terminate theservices of the said teacher or a member of nonteaching staff whether summarily or otherwise withoutinforming him in writing of the grounds on which theyintend to take action and giving him/her what in theirview is a reasonable opportunity for stating his/hercase in writing and before coming to a final decision,shall/duly consider his/her statement and if he/she sodesires give him/her a personal hearing or conduct anenquiry.(ii)After the conduct of the personal hearing orenquiry by the management a notice will be issued tohim/her setting out the proposed punishment and he/sheshall be given a reasonable time to defendhimself/herself against the proposed punishment."X.Pivotal Role of the Principal :40.The School respondent school is admittedly a minority schoolhaving protection of Article 30(1) of the Constitution. The role ofthe Principal in such institution cannot be minimized. The SupremeCourt vide its judgment in N.Ammad Vs. Emjay High School reported in(1998) 6 SCC 674 had held in paragraph 18 as follows:"18.Selection and appointment of Headmaster in aschool (or Principal of a college) are of primeimportance in administration of that educationalinstitution. The Headmaster is the key post in therunning of the school. He is the hub on which all thespokes of the school are set around whom they rotateto generate result. A school is personified throughits Headmaster and he is the focal point on whichoutsiders look at the school. A bad Headmaster canspoil the entire institution, an efficient and honestHeadmaster can improve it by leaps and bounds. Thefunctional efficacy of a school very much depends uponthe efficiency and dedication of its Headmaster. Thispristine precept remains unchanged despite manychanges taking place in the structural patterns ofeducation over the years."41.In the present case, the fourth respondent on direction fromthis court by an order, dated 23.12.2010 in W.P.No.28828 of 2010, hadenquired into the complaint made by the petitioner. But realizing hislimitations in acting against the fifth respondent, the fourthrespondent Principal had forwarded a detailed report to the third https://hcservices.ecourts.gov.in/hcservices/ respondent not only finding a prima facie case in the complaint madeby the students, but also about the complaints made by the womenteachers. Therefore, it is inevitable for the third respondent toenquire into the allegations found in the report submitted by thefourth respondent. 42.In this case pursuant to the directions issued by this court,the Principal had sent a letter dated 28.01.2011 to theCorrespondent. In that report noted already, he had found prima faciethe fifth respondent was guilty of charges. He has also noted severalother complaints against the fifth respondent. When that is a case,the third respondent instead of enquiring into the complaint, hasfiled a counter affidavit stating that the charges based on thecomplaint of the petitioner, dated 01.12.2010 was not made out. Itwas alleged that the Principal was incorrect in stating the same. Itis not clear as to how the counter affidavit can be filed on behalfof respondents 3 and 4. When the report of the fourth respondentPrincipal is categorical, he ought to have filed a separate counteraffidavit making his stand on this issue clear. It is not clearwhether the said counter affidavit was shown to the fourth respondentbefore being filed into the court. No doubt respondents 3 and 4belonged to the same society. But in respect of the allegations,their stand are at variance. They should have come up with separatecounter affidavits. The fourth respondent Principal being a religiouspriest would not have made any false statement in sending his report,especially when this court had directed him to enquire into thecomplaint. Even the third respondent had chosen only to enquire intothe complaint regarding the incident dated 26.11.2010 but had notcared to reply in respect of the other allegations made by the fourthrespondent against the fifth respondent. XI.Forgotten Vishaka Principles :43.The Commissioner had referred to the complaint of lady staffof the school, dated 6.1.2011 given to the fourth respondent withreference to sexual harassment, the management cannot shut their eyeson the said allegations. It is a serious complaint made by the womenteachers of the school against a fellow teacher working in the sameschool, i.e., fifth respondent. The fourth respondent had also foundprima facie case of such harassment. 44.As to what constitutes sexual harassment in a working placeand the steps to be taken by an employer came to be considered by theSupreme Court in Vishaka v. State of Rajasthan reported in (1997) 6SCC 241, wherein the Supreme Court held in paragraphs 16 and 18 asfollows:16. In view of the above, and the absence ofenacted law to provide for the effectiveenforcement of the basic human right of gender https://hcservices.ecourts.gov.in/hcservices/ equality and guarantee against sexual harassmentand abuse, more particularly against sexualharassment at workplaces, we lay down theguidelines and norms specified hereinafter for dueobservance at all workplaces or other institutions,until a legislation is enacted for the purpose.This is done in exercise of the power availableunder Article 32 of the Constitution forenforcement of the fundamental rights and it isfurther emphasised that this would be treated asthe law declared by this Court under Article 141 ofthe Constitution.18. Accordingly, we direct that the aboveguidelines and norms would be strictly observed inall workplaces for the preservation and enforcementof the right to gender equality of the workingwomen. These directions would be binding andenforceable in law until suitable legislation isenacted to occupy the field. These writ petitionsare disposed of, accordingly.45.The said judgment came to be followed by a subsequent decisionof the Supreme Court in D.S. Grewal v. Vimmi Joshi reported in (2009)2 SCC 210. The following passages found in paragraphs 19,21 and 22may be usefully extracted below:19.....The legislature too has keeping in mindthe abovenoted guidelines from Vishaka1 recentlydrafted the Protection of Women against SexualHarassment at Workplace Bill, 2007. The Bill is toprovide “for the prevention and redressal of sexualharassment of women at workplace and for mattersconnected therewith or incidental thereto”. Thedraft law provides for consideration of a mandatorycommittee to hear complaints of sexual harassment.It also stipulates the procedures for setting up ofthese committees. If the complaint is found to betrue, the draft law provides for monetarycompensation. It also stipulates a time period forcompleting the enquiry and for employers to takeaction against the accused. We are aware that theBill has not till yet been enacted by Parliament.We cite the Bill only to show that the lawmakerstoo have accepted the directions and guidelineswhich had been laid down by this Court......... https://hcservices.ecourts.gov.in/hcservices/

21. Vishaka1 has been followed in Apparel ExportPromotion Council v. A.K. Chopra2 wherein a DivisionBench of this Court inter alia held (SCC p.776,para 27) that in a case“involving violation of human rights, the courtsmust forever remain alive to the internationalinstruments and conventions and apply the same to agiven case when there is no inconsistency betweenthe international norms and the domestic lawoccupying the field.”22. Before, however, a disciplinary proceeding isinitiated in a case of this nature, a prima faciefinding has to be arrived at as regards the role ofthe delinquent.46.In fact the principles laid down in Vishaka's case came to beapplied even in respect of a complaint made by the woman employee on12.8.1988 working in Apparel Export Promotion council vide judgmentin Apparel Export Promotion Council v. A.K. Chopra reported in (1999)1 SCC 759. It is relevant to extract paragraphs 26 and 27 of the saidjudgment, which is as follows:26. There is no gainsaying that each incidentof sexual harassment at the place of work, resultsin violation of the fundamental right to genderequality and the right to life and liberty — the twomost precious fundamental rights guaranteed by theConstitution of India. As early as in 1993, at theILO Seminar held at Manila, it was recognized thatsexual harassment of women at the workplace was aform of “gender discrimination against women”. Inour opinion, the contents of the fundamental rightsguaranteed in our Constitution are of sufficientamplitude to encompass all facets of genderequality, including prevention of sexual harassmentand abuse and the courts are under a constitutionalobligation to protect and preserve those fundamentalrights. That sexual harassment of a female at theplace of work is incompatible with the dignity andhonour of a female and needs to be eliminated andthat there can be no compromise with suchviolations, admits of no debate. The message ofinternational instruments such as the Convention onthe Elimination of All Forms of DiscriminationAgainst Women, 1979 (“CEDAW”) and the BeijingDeclaration which directs all State parties to takeappropriate measures to prevent discrimination ofall forms against women besides taking steps toprotect the honour and dignity of women is loud and https://hcservices.ecourts.gov.in/hcservices/ clear. The International Covenant on Economic,Social and Cultural Rights contains severalprovisions particularly important for women. Article7 recognises her right to fair conditions of workand reflects that women shall not be subjected tosexual harassment at the place of work which mayvitiate the working environment. These internationalinstruments cast an obligation on the Indian Stateto gender-sensitise its laws and the courts areunder an obligation to see that the message of theinternational instruments is not allowed to bedrowned. This Court has in numerous cases emphasisedthat while discussing constitutional requirements,court and counsel must never forget the coreprinciple embodied in the international conventionsand instruments and as far as possible, give effectto the principles contained in those internationalinstruments. The courts are under an obligation togive due regard to international conventions andnorms for construing domestic laws, more so, whenthere is no inconsistency between them and there isa void in domestic law. (See with advantage — PremShankar Shukla v. Delhi Admn.7; Mackinnon Mackenzieand Co. Ltd. v. Audrey D’ Costa8; Sheela Barse v.Secy., Children’s Aid Society9 SCC at p.54; Vishakav. State of Rajasthan6; People’s Union for CivilLiberties v. Union of India10 and D.K. Basu v. Stateof W.B.11 SCC at p.438.)27. In cases involving violation of human rights,the courts must forever remain alive to theinternational instruments and conventions and applythe same to a given case when there is noinconsistency between the international norms andthe domestic law occupying the field. In the instantcase, the High Court appears to have totally ignoredthe intent and content of the internationalconventions and norms while dealing with the case.47.It is useful to extract the following passages found inparagraph 17 of Vishaka's case ( cited supra) regarding the duties ofan employer, the definition of sexual harassment and the types ofComplaints Committee to be formed:-"17......1. Duty of the employer or other responsible persons inworkplaces and other institutions:It shall be the duty of the employer or otherresponsible persons in workplaces or other institutionsto prevent or deter the commission of acts of sexual https://hcservices.ecourts.gov.in/hcservices/ harassment and to provide the procedures for theresolution, settlement or prosecution of acts of sexualharassment by taking all steps required.2. Definition:For this purpose, sexual harassment includes suchunwelcome sexually determined behaviour (whetherdirectly or by implication) as:(a)physical contact and advances;(b)a demand or request for sexual favours;(c)sexually-coloured remarks;(d)showing pornography;(e)any other unwelcome physical, verbal or non-verbal conduct of sexual nature.7. Complaints Committee:The complaint mechanism, referred to in (6) above,should be adequate to provide, where necessary, aComplaints Committee, a special counsellor or othersupport service, including the maintenance ofconfidentiality.The Complaints Committee should be headed by a woman andnot less than half of its members should be women.Further, to prevent the possibility of any unduepressure or influence from senior levels, such Complaints Committee should involve a third party,either NGO or other body who is familiar with the issueof sexual harassment.The Complaints Committee must make an annual report tothe Government Department concerned of the complaintsand action taken by them.The employers and person-in-charge will also report onthe compliance with the aforesaid guidelines includingon the reports of the Complaints Committee to theGovernment Department.XII. What Relief ?48.Mr.A.Immanuel, learned counsel for third and fourthrespondents fairly conceded that they did not have any standingcommittee as directed in the Vishaka's case (cites supra) operatingin the school and that for the first time, they are receiving such acomplaint on sexual harassment. Inspite of the fact that there arenumber of women teachers, it is not known why the school had notobeyed the direction of the Supreme Court. However keeping in mindthe status of the school as minority institution and accepting the https://hcservices.ecourts.gov.in/hcservices/ stand of the school for enquiring into the matter, these directionsare issued. 49.In this context, the third respondent is hereby directed toconstitute a special committee as directed in Vishaka's case (citedsupra) and enquire into the complaint of sexual harassment of thewomen staff by the fifth respondent. That report should be obtainedwithin three months from the date of receipt of the copy of the orderand further action is to be taken on the said report against thefifth respondent. 50.In the light of the allegations and counter allegations, it isdesirable that the third respondent should appoint a retired JudicialOfficer not below the rank of a District Judge to conduct an enquiryagainst the fifth respondent in respect of the complaints receivedfrom the students, parents as well as from the Parents Teachers'Association within a period of three months from the date of receiptof the copy of the order and take a further action on the fifthrespondent.XIII.Retain the Principal :51.Since the fourth respondent pursuant to the direction fromthis court had looked into the complaint of the petitioner and hadmade a detailed report to the third respondent, he shall be retainedin the third respondent School till the enquiry is completed. Thoughthe petitioner had submitted that he may be likely to be transferred,the third respondent had denied the said allegation, but yet assertedtheir managerial rights to redeploy the teacher including their ownreligious priests. In such cases the management did not have anabsolute right of transfer. 52.When one such case came up in respect of the very sameSalesian Society vide its decision in St. Anthony's College v. Rev.Fr. Paul Petta reported in 1988 Supp SCC 676, the Supreme Court hadobserved in paragraphs 6, 12 and 13 which are as follows:"6....... It has been stated that St. Anthony’s Collegeis a minority institution and the Salesian Provincial isthe only competent authority to make any appointment tothe rank of Principal in the said College and noadvertisement before making any appointment isnecessary. This relaxation of restriction in regard toMinority College availing of deficit grants-in-aid hasbeen made by Memo dated December 7, 1979. The petitioneris a member of the Salesian of Don Bosco and hisappointment to the said post of Principal could neverhave been permanent. As a priest he is transferable fromtime to time to different institutions of the Society.The Constitution of the Salesian of Don Bosco provides https://hcservices.ecourts.gov.in/hcservices/ that such transfer is binding on the petitioner as apriest and a member of the Salesian Don Bosco. Thetransfer of the petitioner and other priests are mattersof normal routine as members of Salesian Society. It hasalso been stated that any money drawn by a priest has tobe given to the order of Salesian of Don Bosco and nopriest maintains any private fund. It is theresponsibility of the Salesian Society to look after theneeds and requirements of any member of the communityand is responsible for the upkeep of such members. Thepetitioner has taken a vow of obedience when he wasordained as a priest and was admitted as a member of DonBosco. The petition is liable to be dismissed as nostatutory right of the petitioner has been violated.12.The respondent so long as he submits to the order oftransfer and complies with it, the court has nothing todo. But if he does not comply with it and questions itbefore the court, the court will have to consider hisgrievances and to decide if the impugned order oftransfer is legal and valid.13..... In such circumstances it is required to beconsidered whether the Salesian Provincial has powerto transfer him from the post of Principal of theCollege to the post of Teacher in a Technical School ofthe Society. It is apparent from the aforesaidgovernment instructions that the Principal whoseappointment has been duly approved by the DPI can workas Principal in the minority college till he attains theage of superannuation as determined by the Government.The impugned order of transfer in substance amounts toremoval of the respondent from the post of Principal ofthe College. It has been held by the High Court that therespondent has been condemned unheard as he was notgiven any opportunity to show cause for the purportedorder of transfer which seriously prejudiced him. Theprinciples of natural justice and fair play mandate thatin administrative actions the audi alteram partem ruleis applicable and the person affected by the order hasto be given an opportunity of hearing against thepurported order apart from the question whether theAssam Aided College Management Rules, 1965 and AssamAided College Employees’ Rules, 1960 are applicable tominority institutions. We do not consider it necessaryfor the purposes of this appeal to make any observationson the question whether the Assam Aided College https://hcservices.ecourts.gov.in/hcservices/ Management Rules, 1965 and Assam Aided CollegeEmployees’ Rules, 1960 are applicable to minorityinstitutions or to consider the question whether therules concerning the terms and conditions of appointmentas well as prescribing qualifications for appointment tothe post of lecturers and principals as well asprescribing conditions for service are regulatory innature and they do not contravene the fundamental rightguaranteed under Article 30 of the Constitution to theminority institutions as has been observed in the caseof Frank Anthony Public School Employees’ Association v.Union of India1. It has been contended on behalf of thelearned counsel for the appellants that Appellant 2,Salesian Provincial is the appointing authority of therespondent and as such he has the right to make theimpugned order of transfer though there is no expressprovision conferring such power. The case of KutoorVengayil Rayarappan Nayanar v. Kutoor Vengayil ValiaMadhavi Amma2 has been cited at the Bar for theproposition that the power to terminate flows naturallyand as a necessary sequence from the power to create.This proposition is a well-established proposition butthe question is whether the Salesian Provincial is theappointing authority of the respondent or the GoverningBody of the said College appointed the respondent andrecommended his appointment for approval to the DPI. Asstated earlier DPI pursuant to the recommendation of theGoverning Body approved the appointment of therespondent as Principal of the said College. So thisquestion has to be gone into and determined by theGoverning Body as has been directed by the order of theHigh Court. It has been contended that the impugnedorder of transfer has seriously affected the status ofthe respondent as Principal of the College and this hasbeen made by Appellant 2, Salesian Provincial withoutgiving him any opportunity of hearing. Now insofar asthe respondent is transferred in his capacity as priestfrom one division of the religious order to anotherthe matter pertains to the internal management of thereligious order and it is not justiciable. However,insofar as the order of transfer has been made by theGoverning Body of the St. Anthony’s College transferringthe respondent from the post of Principal of the Collegeto the post of teacher of Don Bosco Technical Schoolwhich is in another State the respondent can complainagainst it. Since the respondent has not been given anyopportunity of hearing against the purported order oftransfer outside the State which seriously affected hisstatus, the High Court, in the facts and circumstances https://hcservices.ecourts.gov.in/hcservices/ of the case has directed the Governing Body of theCollege to give the respondent an opportunity to showcause against the impugned order of transfer datedDecember 14, 1985 and to give him a hearing and decidethe transfer matter in accordance with law. The judgmentand order passed by the High Court in the circumstancesof the case cannot be faulted.XIV.School must exercise disciplining control :53.Therefore, atleast till the enquiry is completed, the fourthrespondent shall be retained in the school without being disturbed.The third and fourth respondents themselves had agreed to conduct aproper enquiry against the fifth respondent, it is unnecessary todirect the second respondent Child Right Commission to enquire intothe complaint made by the petitioner.54.Pending the enquiry into the petitioner's complaint, i.e.complaints made by students/parents by a retired judicial Officer andthe complaints made by the women staff regarding the sexualharassment by a Special Committee as per Vishaka's case, the fifthrespondent shall not be allowed to rejoin duty (who is presently onleave) and he shall be placed under suspension pending enquiry intothe serious allegations made against him. This is more so that he isfaced with a criminal case regarding sending threatening calls toteachers even the case is pending before this Court. 55.Since prima facie case has been made out even as per thereport sent by the Principal and that the management itself hasagreed to abide by the directions of this court, the report of theAdvocate Commissioner is rejected. The report of the AdvocateCommissioner along with its enclosures including videographs shall bekept in a sealed cover by the Registry and shall not be made public. 56.In view of the above, this writ petition is disposed of withthe following direction:a)The third respondent is hereby directed to appointa retired Judicial Officer not below the rank of DistrictJudge to conduct an enquiry against the fifth respondentin respect of the complaints received from the students,parents as well as Parents Teachers' Association within aperiod of three months from the date of receipt of thecopy of the order and take further action on the fifthrespondent on the basis of the report.b)The third respondent is hereby directed toconstitute a special committee as directed in Vishaka'scase (cited supra) and enquire into the complaints ofsexual harassment of women staff by the fifth respondent. https://hcservices.ecourts.gov.in/hcservices/ That report should be obtained within three months fromthe date of receipt of the copy of the order and furtheraction is to be taken on the said report against the fifthrespondent. c)Till the two enquiries against the fifth respondentare completed, the fourth respondent shall not be shiftedout of third respondent school.d)Pending enquiry into the allegations and furtherdecision to be taken by the management, the fifthrespondent shall be kept under suspension. But however, hewill be paid subsistence allowance as per law. There will be no order as to costs. Consequently, connectedmiscellaneous petition stands closed.57.The Advocate Commissioner has submitted a bill forvidepgraphing and fee for stenographer for a sum of Rs.40000/-. Thiscourt had asked both the parties as to who should bear the cost.Mr.A.Immanuel, learned counsel for the third respondent had statedthat if this court so desires, the bill presented by the AdvocateCommissioner shall be borne by the third respondent. Hence adirection is issued to the third respondent to pay a sum ofRs.40000/- (Rupees fourty thousand only) towards the expensesincurred to the Advocate Commissioner. The same shall be paid withinfour weeks from the date of receipt of copy of this order.XV.Parting Advice : A)One for the Teacher :-58.Beforeconcluding, it will not be out of place to refer to the observationsof the Supreme Court which exhorts virtues of teachers vide tisjudgment in Avinash Nagra v. Navodaya Vidyalaya Samiti reported in(1997) 2 SCC 534. The Supreme Court had observed in paragraph 11 asfollows:"11. .... Obviously, therefore, the teacher was placed onthe pedestal below the parents. The State has taken careof service conditions of the teacher and he owes dualfundamental duties to himself and to the society. As amember of the noble teaching profession and a citizen ofIndia he should always be willing, self-disciplined,dedicated with integrity to remain ever a learner ofknowledge, intelligently to articulate and communicateand imbibe in his students, as social duty, to imparteducation, to bring them up with discipline, inculcate toabjure violence and to develop scientific temper with aspirit of enquiry and reform constantly to rise to higherlevels in any walk of life nurturing constitutional https://hcservices.ecourts.gov.in/hcservices/ ideals enshrined in Article 51-A so as to make thestudents responsible citizens of the country. Thus theteacher either individually or collectively as acommunity of teachers, should regenerate this dedicationwith a bent of spiritualism in broader perspective of theconstitutionalism with secular ideologies enshrined inthe Constitution as an arm of the State to establishegalitarian social order under the rule of law.Therefore, when the society has given such a pedestal,the conduct, character, ability and disposition of ateacher should be to transform the student into adisciplined citizen, inquisitive to learn, intellectualto pursue in any walk of life with dedication, disciplineand devotion with an enquiring mind but not with blindcustomary beliefs. The education that is imparted by theteacher determines the level of the student for thedevelopment, prosperity and welfare of the society. Thequality, competence and character of the teacher are,therefore, most significant to mould the calibre,character and capacity of the students for successfulworking of democratic institutions and to sustain them intheir later years of life as a responsible citizen indifferent responsibilities. Without a dedicated anddisciplined teacher, even the best education system isbound to fail. It is, therefore, the duty of the teacherto take such care of the pupils as a careful parent wouldtake of its children and the ordinary principle ofvicarious liability would apply where negligence is thatof a teacher. The age of the pupil and the nature of theactivity in which he takes part are material factorsdetermining the degree and supervision demanded by ateacher."B.One for the School :59.The Supreme Court also has held in K. Shekar v. V. Indirammareported in (2002) 3 SCC 586 that even a reputed educationalinstitution is not immune from judicial scrutiny. In paragraph 21 ofthe judgment it was observed as follows:"21..... It is also true that generally speakingcourts have been reluctant to interfere with therunning of educational institutions. But there can be“no islands of insubordination to the rule of law”2.The actions of educational institutions, howeverhighly reputed, are not immune from judicial scrutiny. https://hcservices.ecourts.gov.in/hcservices/ Indeed, to preserve the high reputation, there is agreater need to avoid even the semblance ofarbitrariness or extraneous considerations colouringthe institution’s actions." Sd/ Asst.Registrar /true copy/ Sub Asst.RegistrarvvkTo1.The Director of Matriculation Schools Office of the Directorate of Matriculation schools, DPI Complex, College Road, Chennai-600 006.2.The Child Right Commission, Bal Raksha Bharat, 3rd Floor, Vardhaman Trade Centre, 9-10-11, Nehru Place, New Delhi-110 019.Copy to: Mr. V. Prakash, SC Advocate Commissioner High Court, Chennai. + 1 cc to Mr.M. Sriram, Advocate SR.24546+ 1 cc to M/s. P. Tamil Vel, Advocate sR.24946 W.P.NO.2116 OF 2011SSK(CO)Eu 11.4.11