PAUL VASANTHAKUMARWRIT APPEAL NO.3429 OF 2004and WAMP.Nos.6430/04 & 1838/061.C. Parthiban2.Selvi D. Akila v. Dr. K. MeenaConvenor & Ors.

A.L. GandhimathiFor respondents: Mr. C.K. Chandrasekaran for M/s. Row & Reddy for R.2 Mr.G. Ethirajulu for R.4 Mr. M.S. Pandiyan forR.5 to R.7 No appearance of R.1 and R.3.....JUDGMENT(Judgment of the Court delivered by P.SATHASIVAM,J.)Aggrieved by the order of the learned Single Judge dated06.08.2004 made in W.P.No.13165 of 2004, the writ petitioners preferredthe above writ appeal.2. For convenience, we shall refer the parties, as arrayedbefore the learned single Judge.3. The case of the petitioners as stated in their affidavit isas follows: The first petitioner, C. Parthiban, is the father of one SelviP. Shanthi, student of Bharathidasan University, Trichirapalli and thesecond petitioner Selvi D. Akila, is another student of the sameUniversity. The 4th respondent in the writ petition, Dr. S. Palanisamy, was Reader and Head of the Department of Social Works, BharathidasanUniversity, Trichirapalli.

M/s. Selvi. Bharathi and Selvi.P. Shanthiwere students of the said Department. The said Bharathi and the 2ndpetitioner, D.Akila were students in M.A. (Social Work) and had https://hcservices.ecourts.gov.in/hcservices/ undergone the course during 2000-2002. The said P.Shanthi was anM.Phil student in Social Work and was doing her research work under theguidance of the research guide Dr. B. Sethuramalingam and the readerwho was in-charge of M.Phil course undertaken by the said Shanthi wasDr. S. Palanisamy, 4th respondent. Dr. S. Palanisamy, always did nothave a good sense of behaviour towards girl students. The abovementioned girl students and others suffered a lot during the tenure oftheir course. In order to avoid adverse remarks in their ConductCertificate/Transfer Certificate, they did not lodge any complaint atthe relevant point of time. The 2nd petitioner Akila and Selvi. Bharathihad occasion to meet the 4th respondent herein in his chamber and heunnecessarily made them to wait in his chamber for hours together anddid not discuss anything about the subject, but put indecent questionsfor which they being female students would not be able to digest orrespond to him.

The 4th respondent used to put questions like, "did Icatch your hands preventing you from writing the examinations?" and"did I hug you preventing from studying for the examinations?". Theseare all only few among the numerous statements made by him. On30.12.2002, Selvi. Shanthi had to submit her thesis for approval byrespondents 4 and 5 herein and for that, the respondents 4 and 5called her to the Chamber of 4th respondent and when Shanthi went there, the 4th respondent alone was in his chamber. The 4th respondent left hisseat, came towards Shanthi, caught her by his hand, removed her dressand hugged her in a manner which is unbecoming of a Teacher, whichcould not be borne by any student. 4. The aforesaid Bharathi, the 1st petitioner Parthiban onbehalf of his daughter P. Shanthi and the 2nd petitioner D. Akila lodgedcomplaints with the University against the conduct of the 4threspondent. Subsequently, Shanthi also gave complaint.

After findingthat if the allegations made in the complaints were proved, it wouldamount to an offence punishable under the provisions of the SexualHarassment of Women at their Work Place (Prevention) Act, 2000, therespondents 1 and 2 herein decided to constitute an Enquiry Committeecomprising of four persons. The said Enquiry Committee was presidedover by the 1st respondent herein. The enquiry was conducted, all thecomplainants were examined and the said Committee, on careful perusalof the statements made on either side, came to the conclusion that theallegations were serious in nature and they were prima-facie true andserious action should be taken against the respondents 4 to 7 herein. Subsequent to the report of the Committee, the respondents 4 and 5herein were placed under suspension and respondents 6 and 7 weretransferred to other Departments. While the matter stood thus, thepetitioners herein were legitimately expecting that the Universitywould take further follow up action against the respondents 4 to 7herein.

However, the same did not happen for quite some time. 5. While so, suddenly the third respondent issued a noticedated 12.04.2004 addressed to all the four complainants and the personsagainst whom the complaints were lodged stating that he was constitutedas an one-member Enquiry Committee for the purpose of enquiring intothe charges levelled against respondents 4 to 7 herein. They wereasked to appear before the Enquiry Officer. According to thepetitioners, when a full-fledged enquiry was conducted by a Four MemberCommittee, there is no need for the University to appoint One ManCommittee to go into the very same charges and the appointment of OneMan Committee is without jurisdiction and not warranted. In those https://hcservices.ecourts.gov.in/hcservices/ circumstances, the petitioners filed the above writ petition seekingappropriate direction to declare that the enquiry, which is sought tobe conducted by the third respondent herein as an One-Member EnquiryOfficer into the charges levelled against respondents 4 to 7 hereinby the petitioners and Selvi K. Bharathi and Selvi P. Shanthi, with regard to sexual harassment by the 4th respondent herein against Selvi K. Bharathi, Selvi P. Shanthi and 2nd petitioner herein asincompetent, void, wholly without jurisdiction.

6. The Registrar, Bharathidasan University, Tiruchirapalli, second respondent herein filed a counter affidavit, wherein it iscontended that on receipt of the complaints from the writ petitionersalleging sexual harassment against the 4th respondent Dr.S.Palanisamy, based on the law laid down by the Supreme Court in Vishaka case[Vishaka and Others v. State of Rajasthan and Others - (1997) 6 SCC241], the University appointed a Complaints Committee headed by a womanas a Chair-person to enquire into the same. The said committee afterenquiry submitted a report which disclosed a prima facie case againstthe 4th respondent. Based on the report, the University initiateddisciplinary proceedings against the 4th respondent.7. The employees of the University including the teaching staffare governed by the Bharathidasan University Act and Rules and Statutesmade thereunder. Disciplinary proceedings against them are to beconducted according to the Statutes of the University.

Based on the Statutes, a charge memo was issued to respondents 4 to 7 calling uponthem to submit their explanation. Their explanations were examined andit was decided to conduct an enquiry into the charges levelled againstthem. Pursuant to the said decision, the 3rd respondent was appointedas an Enquiry Officer. At this stage, the petitioners filed the writpetition questioning the said enquiry. The enquiry by the complaintsCommittee was only a preliminary enquiry into the allegations of sexualharassment and the said Committee was required to enquire into theallegations made by the complainants in order to ascertain as towhether there is any prima facie case to proceed against the delinquenteither departmentally or through a criminal law. Since the Complainants Committee submitted a report which disclosed a prima faciecase against the 4th respondent, disciplinary proceedings has to betaken against the 4th respondent in terms of the Statutes whichcontemplate an enquiry officer to be appointed who can either be a maleor female.

The Enquiry officer will have to enquire into the chargeslevelled against respondents 4 to 7, in which the petitioners may bewitnesses. The procedure adopted by the University is in accordancewith the Statutes and what is required by the petitioners is nottraceable to any provision of the the Act or Statutes. The role ofpetitioners is only to appear as witnesses.

In the case before the SupremeCourt, the appellant was appointed as a Postgraduate teacher on28.01.1994. Initially he worked at Patiala and was transferred to Kinnaur. The respondent institution-Navodaya Vidayalaya Samiti is aco-education institution. The appellant's service was terminated interms of his letter of appointment giving salary in lieu of notice onthe ground of his improper conduct with a girl student. When theappellant filed a writ petition, the High Court, after considering thematerials on record, dismissed the same. When the matter came up foradmission and the counsel insisted upon an enquiry to be conductedagainst the alleged misconduct, by order dated 13.03.1996, the Hon'bleSupreme Court directed the management to issue show-cause notice to thepetitioner, conduct an enquiry and submit a report within the specifiedtime. In furtherance thereof, show cause notice dated 02.05.1996together with the statements of the girl, her room-mates and theattender Bharat Singh were supplied to the petitioner.

After receiptof the explanation submitted by the appellant and consideration of theentire records, a report was drawn up and submitted to the Court withthe finding that the appellant is guilty of moral turpitude involvingexhibition of immoral sexual behaviour towards a girl student in Jawahar Navodaya Vidyalaya, Kinnaur. On consideration of the reportand the records, the Supreme Court heard the counsel on both sides. After hearing the counsel at length, the Supreme Court framed two https://hcservices.ecourts.gov.in/hcservices/ questions of which we are concerned with the second question, whichreads as under: "Whether he (appellant) is entitled to a full-fledged enquiryand opportunity to cross-examine the girl students who havegiven the statements against the appellant?"It is further seen from the order that the provisions of Central CivilServices (Classification, Control and Appeal) Rules, 1965 of the Government of India would be applicable to the employees of NavodayaVidyalaya, which is running nation-wide co-educational specialised andprestigious schools in which 1/3rd of the students are girls.

With aview to ensure safety and security to girl students and to protecttheir modesty and prevent their unnecessary exposure at an enquiry inrelation to the conduct of a teacher resulting in sexual harassment ofthe girl students involving misconduct or moral turpitude, aresolution proposing special summary procedure was passed and publishedby notification dated 23.12.1993, after due approval by the Executivesof the respondent-Samiti. The Minister of Human Resources and Development, Government of India is its Chairman. The notificationpostulates dispensation of regular enquiry under the Rules. Based onthe relevant Rules and taking note of the complexity of the matter, the Hon'ble Supreme Court has observed,"12. It is axiomatic that percentage of educationamong girls, even after independence, is fathomdeep due to indifference on the part of all inrural India except some educated people. Educationto the girl children is nation's asset andfoundation for fertile human resources anddisciplined family management, apart from theirequal participation in socio-economic and politicaldemocracy.

Only of late, some middle-class peopleare sending the girl children to co-educationalinstitutions under the care of proper managementand to look after the welfare and safety of thegirls. Therefore, greater responsibility is thruston the management of the schools and colleges toprotect the young children, in particular, thegrowing up girls, to bring them up in disciplinedand dedicated pursuit of excellence. The teacherwho has been kept in charge, bears more addedhigher responsibility and should be more exemplary. His/her character and conduct should be more likeRishi and as loco parentis and such is the duty, responsibility and charge expected of a teacher. The question arises whether the conduct of theappellant is befitting with such higherresponsibilities and as he by his conduct betrayedthe trust and forfeited the faith whether he wouldbe entitled to the full-fledged enquiry as demandedby him?

The fallen standard of the appellant isthe tip of the iceberg in the discipline ofteaching, a noble and learned profession; it is foreach teacher and collectively their body to stemthe rot to sustain the faith of the society reposed https://hcservices.ecourts.gov.in/hcservices/ in them. Enquiry is not a panacea but a nail inthe coffin. It is self-inspection and correctionthat is supreme. It is seen that the rules wiselydevised have given the power to the Director, thehighest authority in the management of theinstitution to take decision, based on the fact-situation, whether a summary enquiry was necessaryor he can dispense with the services of theappellant by giving pay in lieu of notice. Twosafeguards have been provided, namely he shouldrecord reasons for his decision not to conduct anenquiry under the rules and also post with factsthe information with Minister, Human ResourcesDepartment, Government of India in that behalf.

Itis seen from the record that the appellant wasgiven a warning for his sexual advances towards agirl student but he did not correct himself andmend his conduct. He went to the girl's hostel at10 p.m. in the night and asked the hostel helper, Bharat Singh to misguide the girl by telling herthat Bio-Chemistry Madam was calling her; believingthe statement, she came out of the hostel. It isthe admitted position that she was an activeparticipation in cultural activities. Takingadvantage thereof, he misused his position and madesexual advances towards her. When she ran awayfrom his presence, he pursued her to the room whereshe locked herself inside; he banged the door. When he was informed by her roommates that she wasasleep, he rebuked them and took the torch from theroom and went away. He admitted his going thereand admitted his meeting with the girl but he hadgiven a false explanation which was not foundacceptable to the Enquiry Officer, namely, Assistant Director.

After conducting the enquiry, he submitted the report to the Director and the Director examined the report and found him notworthy to be a teacher in the institution. Underthose circumstances, the question arises whetherthe girl and her roommates should be exposed to thecross-examination and harassment and furtherpublicity? In our considered view, the Directorhas correctly taken the decision not to conduct anyenquiry exposing the students and modesty of thegirl and to terminate the services of the appellantby giving one month's salary and allowances in lieuof notice as he is a temporary employee underprobation. In the circumstances, it is veryhazardous to expose the young girls to tardyprocess of cross-examination. Their statementswere supplied to the appellant and he was given anopportunity to controvert the correctnessthereof. ..... "

However, the Statutes enable the Vice-chancellor to take charge of theproceedings of enquiry at any stage and complete the enquiry in themanner he thinks fit, in the interest of University (Vide Chapter VI –(XIII) Discipline and Control Clause (8) of the Statutes). In otherwords, the statutes make it clear that in the interest of University, the Vice-chancellor is free to change the mode of enquiry. It is notin dispute that though no full-fledged enquiry was conducted by the Four Member Committee, statements were obtained from the complainantsas well as respondents 4 to 7. The Committee report further shows thatthe said respondents were briefed about the details of the complaintsand they also submitted their reply. Though it is argued on the sideof respondents 4 to 7 that the principles enunciated in the judgment ofthe Supreme Court in Vishaka case [Vishaka and Others v. State of Rajasthan and Others - (1997) 6 SCC 241], are not applicable, takingnote of the fact that the victims are post graduate girl students andthe persons against whom complaints were made are professors andpersons working under them, by applying the decision of the SupremeCourt in Avinash Nagra case (cited supra), we are of the view that inorder to protect the modesty of girl students and to prevent theirunnecessary exposure at an enquiry, they need not appear and deposebefore the present Enquiry Officer.

On the other hand, the EnquiryOfficer is directed to take note of their statements, supply copy ofthe same to respondents 4 to 7 and after giving opportunity to them tooffer their further response, if any, the Enquiry Officer is free tosubmit his report for further action. It is for the University tosupply/place necessary materials, viz., attendance registers for M.A.,(Social Work) and M.Phil courses during the relevant years, despatchnote books for 2000-2003, copies of transfer/conduct certificates givento the students and other materials relating to sending complainantsfor project/field work, to the Inquiry Officer through the personsconcerned other than the complainants. Accordingly, we dispose of the writ appeal with the followingdirections: (i)The complainants/victim girls need not appear and depose beforethe Enquiry Officer; (ii)The Enquiry Officer shall supply copies of thedeposition/statements of the complainants made before the FourMember Committee to respondents 4 to 7 and after getting theirresponse, consider and submit his report on merits; https://hcservices.ecourts.gov.in/hcservices/ (iii)The University shall place all required material /documents, such as, attendance registers for M.A., (Social Work) and M.Philcourses during the relevant years, despatch note books for2000-2003, copies of transfer/conduct certificates given to thestudents and other materials relating to sending complainantsfor project / field work before the Enquiry Officer.

(iv)Following the above procedure, the Enquiry Officer shallsubmit his finding to the disciplinary authority within a periodof eight (8) weeks from the date of receipt of copy of thisorder. (v)Based on the enquiry report, the Competent Authority shall passappropriate orders within a period of four weeks thereafter. There is no order as to costs. Consequently, connected miscellaneouspetitions are closed.khSd/Asst. Registrar/true copy/Sub Asst. RegistrarTo1.Dr. K. MeenaConvenor, Vice-ChancellorCommitteeBharathidasan UniversityPalakaliperurTiruchirapalli 620 024.2.The Registrar Bharathidasan UniversityPalakaliperurTiruchirapalli 620 024.1 CC TP G.P, SR 35761 CC TO MR.AL.GANDHIMATHI, SR 38811 CC TO MR.M.S.PANDIYAN, ADVOCATE SR 35161 CC TO MR.G.ETHIRAJULU, ADVOCATE SR 34931 CC TO M/S ROW & REDDY, SR 3490 P.D. Judgment in W.A.No.3429 of 2004AVA(CO)BP/23.1Dated:20.01.2007