PoSH PROCEEDINGS – Should the victims' examination require to be carried out in the presence of Respondent ! NO- Madras High Court
PoSH
PROCEEDINGS – Victims need not be present face to face with the
Respondent/delinquent during the
enquiry
Madras High Court
Samuel
Tennyson vs The Principal & Secretary on 13 August 2019
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P.15145
W.M.P.Nos.15129 and 15130 of 2019
A Writ Petition was filed under Article 226 of the
Constitution of India, praying for the
issuance of a Writ of Certiorarified Mandamus to call for the records pertaining to the “Finding of Fact”
given by Committee of Enquiry (Internal
Complaints Committee), Madras Christian College - and the consequential Second Show Cause Notice dated 24th May 2019 on the file of the first
respondent and quash the same.
IMPORTANT POINTS:
Main whack of the petitioner on the issuance of
the second show cause notice was that there was an utter and a gross violation
of principles of natural justice, as he was not permitted to stay in the hall during
enquiry of girl students.
The said contention was highly repudiated by the
2nd Respondent stating that Advocates of the Petitioner and Dr.Raveen's choice
were allowed to represent them in the enquiry and whatever they wanted to
convey to the Committee were passed on through their Advocates. This Court
finds justification in the act of the Committee, on the reasoning that as
soon as the students, who lodged complaints against the Petitioner, notice the
personal appearance of the petitioner in the very same hall, there are chances
of their getting panic out of fear and threat and as a result, the entire truth
will not come out of their mouth, thereby, leaving allegations levelled against
the Petitioner and Dr.Raveen unnoticed by the Committee. Hence, in the
considered opinion of this Court, there is no violation of the principles of
natural justice by the Committee in the conduct of the enquiry and this Court
finds no infirmity with the report of the Committee.
…. For the aforesaid reasons, this Courts finds that
there is no justifiable ground to interfere with the Fact Finding Report as
well as the second show cause notice, as the further action followed by the
show cause notice will only bring the cat out of the bag. Hence, in the
considered opinion of this Court, the Writ Petition is liable to be dismissed.
Accordingly, the Writ Petition is dismissed as devoid of merits.
ORDER
This Writ Petition has been filed, seeking to quash the
“Finding of Fact” report of the Committee of Enquiry (Internal Complaints
Committee), Madras Christian College – Tambaram / 2nd Respondent herein dated
17.04.2019, by which, it was stated that there was a sexual harassment by the
Petitioner. The Petitioner also sought to quash the consequential Second Show
Cause Notice dated 24.05.2019.
2. The case of the Petitioner was
that he had joined the 1st Respondent College as Assistant Professor in the
Zoology Department on 13.06.2011 and was brought under regular pay scale,
thereby conferred the status Government employee. In the month of January,
2019, a study tour between 09.01.2019 and 14.01.2019, was arranged for the
students of Zoology Department and 42 students were taken to Bangalore, Mysore
and Coorg, accompanied by seven faculty members, namely, the petitioner herein,
Dr.Raveen, Dr.Allen J.Freddy, Mr.E.Thulukkanam, Dr.Anulin Christudhas and
Dr.K.Dhinamala.
3. It was the further case of the
Petitioner that pursuant to an anonymous communication received by the 1st
Respondent herein, levelling certain allegations against the Petitioner
and Dr. Raveen, an enquiry was conducted and thereafter, on 04.03.2019, the
petitioner was issued a warning and he was not assigned the work of
paper-evaluation and internal examinership for the end semester 2018-2019 with
further condition not to accompany students for tours for three years. It was
stated by the Petitioner that the written communication was in the form of a
complaint given by 34 students against the aforesaid Dr.Raveen and against him
and all the allegations were raised only as against the said Dr.Raveen and his
name was added in the capacity of supportive behaviour.
4. It was further stated that the Petitioner had given a
detailed reply to the communication dated 28.03.2019 issued by the 2nd
Respondent / Committee in connection with two complaints dated 05.02.2019 and
08.02.2019 and being not satisfied with his explanation, an enquiry was
conducted, in which eight girls appeared before the Committee. At the time of
examination of eight girls, the petitioner was asked to sit outside and after
recording their evidence, he was called inside. It was also stated that the
petitioner's request for production of statement was not granted and inside the
enquiry committee, there were three other Professors, who had given statement
in his favour and Dr Raveen to the effect that no such sexual harassment had
taken place.
5. It was submitted by the
Petitioner that though the petitioner sought for copies of statements of
complaints and statements by staff escorts / female faculty, the same were
furnished to him only on 07.05.2019, after the enquiry was completed on
17.04.2019 instead of providing at the initial stage. The Petitioner
immediately responded to the unfair act of the 2nd Respondent by way of a reply
dated 20.05.2019, stating that the procedure adopted by the Committee is in
violation of the principles of natural justice and contrary to Section 13 of
the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
(hereinafter referred to as 'the Act').
6. According to the petitioner,
in terms of Section 13 of
the Act, the proceedings initiated by the Committee are only recommendary in
nature and as he is a Government Servant, action needs to be taken only under
Rule 17(b) of T.N. Civil Services (Discipline and Appeal) Rules, 1973 and the
petitioner has got protection under Article 311 of the
Constitution of India. The petitioner also referred to a judgment of the
Hon'ble Division Bench of this Court in the case of Union of India, Srirangam
and another vs. The Registrar, Central Administrative Tribunal, Chennai and
another [W.P.No.12022 of 2018] decided on 09.09.2018, wherein it has been
held as follows:
“8. The order of the Disciplinary
Authority, which was confirmed by the Appellate Authority were set aside by the
Central Administrative Tribunal mainly on the ground that the petitioners have
failed to follow the procedure/guidelines laid down in O.M.
F.No.11013/2/2014-Esst (A-III) of DOP & T, dated 16.7.2016 in the case of
allegation of sexual harassment.
9. It is
pertinent to note that nothing has been produced to show that only as per the
guidelines laid down in O.M. F.No.11013/2/2014-Esst (A-III) of DOP & T,
dated 16.7.2016 and the provisions contained in Sub-Rule 2 of Rule 14 of CCS
(CCA) Rules, 1965, the petitioners have conducted the inquiry. Therefore, the
Central Administrative Tribunal was right in setting aside the order of the
Disciplinary Authority as well as the Appellate Authority and remitted the
matter back to the Disciplinary Authority with a direction to conduct the
inquiry from the stage of preliminary inquiry report and furnish him all the
documents. We do not find any illegality in the order of the Central
Administrative Tribunal and moreover, there is no scope for our interference in
the order of the Central Administrative Tribunal and the writ petition is
liable to be dismissed.
10. The writ petition is,
therefore, dismissed. No costs.
Consequently, W.M.P.No.14006 of
2018 is closed.”
7. When there was an enquiry on
06.04.2019 and 09.04.2019 behind the back of the petitioner and the necessary
documents sought for by the petitioner were furnished to him only on
07.05.2019, it is apparently evident that the principles of natural justice has
been violated and the procedures adumbrated under Rule 7(1) of the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal)
Rules, 2013 (in short 'Rules') have not been followed in the present case on
hand. For the sake of Convenience, Rule 7(1) of the Rules is extracted below:
“7. Manner of inquiry into
complaint – (1) Subject to the provisions of section 11, at the time of filing
the complaint, the complainant shall submit to the Complaints Committee, six
copies of the complaint along with supporting documents and the names and
addresses of the witnesses.”
8. Finally, it was argued by the petitioner that since there
was a violation of principles of natural justice and the procedures
contemplated under the Act have not been strictly adhered to, the report of the
Committee and the subsequent show cause notice needs interference by this
Court.
9. Per contra, the 1st Respondent / College has contended
that after appointment of a committee to look into the complaints levelled
against the petitioner and other staff members, the College has no other
option, but to adopt the recommendations of the Committee.
10. A counter affidavit has been filed on behalf of the 2nd
Respondent / Committee, wherein it has been inter alia stated as follows:
i) Pursuant to
the certain complaints of sexual harassment, received against the petitioner
and Dr.Raveen, who accompanied 42 students for the educational tour, a detailed
enquiry was conducted on two occasions on 06.04.2019 and 09.04.2019 on the
basis of the complaint dated 08.02.2019 signed by 34 students.
ii) It was
stated that due opportunity was afforded to the petitioner to submit his
explanation, due to which, he also submitted his explanation on 01.04.2019
denying the allegations levelled against him. The petitioner and Dr.Raveen were
permitted to have the assistance of Advocates to defend their case in the enquiry
and in the enquiry, the petitioner had stated that since he was strict in the
class, such false complaint has been given against him and both the petitioner
and Dr.Raveen were allowed to cross examine the witnesses also, thereby the
principles of natural justice was completely followed by the Committee in
letter and spirit;
iii) It was
also stated that since the committee, which had dealt with the sensitive matter
of sexual harassment, had obtained advice from an expert Advocate at every
stage and followed all the procedures contemplated under various connected
enactments and the findings
W.P.15145 of 2019 rendered by the Committee is cogent and based on the
oral evidence recorded in the enquiry. Thus, it was prayed by the 2nd
Respondent that the writ petition is liable to be dismissed in limine.
11. Learned counsel for the
Petitioner has vehemently contended that in a case of sexual harassment, action
needs to be taken only under the provisions of the service rules applicable to
the particular concern and in case there is no separate service rules, the
procedures in terms of the guidelines prescribed in Vishaka's case are to be
followed and in support of his contention, he has also referred to Section 13 of the Act,
especially sub- clause (3)(i), which reads as follows:
“13 Inquiry Report -
(3) Where the Internal Committee
or the Local Committee, as the case may be, arrives at the conclusion that the
allegation against the respondent has been proved, it shall recommend to the
employer or the District Officer, as the case may be -
(i) to take action for sexual
harassment as a misconduct in accordance with the provisions of the service
rules applicable to the respondent or where no such service rules have been
made, in such manner as may be prescribed;
12. Learned counsel for the petitioner has emphasised the
word 'recommend' to contend that the
Committee appointed by the College can after all submit / recommend its decision
/ report to the College, on the basis of which, suitable action has to be
initiated under the relevant provisions of law applicable to the College. Even
before appointment of a committee, the petitioner was issued with a punishment
order dated 04.03.2019 by the 1st Respondent, which shows the predetermined
mind of the 1st Respondent in taking action against him. Moreover, ignoring the
fact that the Committee's report is only recommendatory in nature, the entire
action flew from the Committee's report without serving required documents to
the petitioner at the initial stage of enquiry. The documents sought for by the
petitioner were furnished to him in piecemeal and therefore, it is clear
that Section 13 of
the Act r/w Rule 7 (1) of the Rules has not been strictly complied with. He
further drew the attention of this Court to Rule 7(4) of the Rules to
substantiate his argument that it is a clear case of violation of principles of
natural justice and in order to take vengeance against the petitioner for not
signing the record books, such a fictitious, imaginative and anonymous
complaint was sent to the 1st Respondent / College by the female students of
Zoology Department.
13. Learned counsel for the petitioner has quoted a judgment
of the Hon'ble Orissa High Court in the case of Jyoti Prakash vs. Internal
Appellate Committee and others [W.P.(C) No.242 of 2017] decided on 16.05.2018,
to further contend that the second show cause has to be issued after a full-fledged
enquiry into the matter under the relevant provisions and not based upon the
report of the Internal Committee. For the sake of convenience, the relevant
paragraphs of the said judgment are extracted below:
“10. In the
backdrop of this factual aspect, now it is to be seen the legality and
propriety of the order impugned which is with the proposed punishment.
It is not in dispute
that the proposed punishment is only issued after the finding given by the
enquiry report forwarded before the disciplinary authority who, accepting it,
issues the proposed punishment by way of second show cause notice, thus the
second show cause notice is to be issued after conclusion of enquiry. The Bank,
presuming the report submitted by the internal complaints committee as enquiry
report under the Discipline and Appeal Rule, has issued the impugned proposed
show cause notice. As has been stated herein above that in the Act, 2013 there
are two parts, Section 11 deals with the duty of the internal complaints
committee to conduct an enquiry and it can be submitted before the police by
way of a complaint if intended to take criminal action or can be submitted
before the disciplinary authority for dealing with such employees under the
Discipline and Appeal Rule which is under Section 13 of the Act, 2013.
In view
thereof the report submitted by the internal complaints committee in view
of section 11 cannot
be said to be an enquiry report in terms of section 13 to be treated
as enquiry report under the provision of Discipline and Appeal Rule and since
it is not an enquiry report to be treated U/s.13 as enquiry report, the
proposed punishment which is impugned in this writ petition treating the
enquiry report submitted under the provision of Section 11 will be said
to be an improper decision of the authority since that stage has not yet come
because as yet the proceeding has not been initiated as contemplated under the
provision of Section
19(i) of the Act, 2013 and in view thereof the notice cannot be held
to be sustainable in the eye of law.
11. This court while discussing
the facts in detail herein above, has found that the impugned notice issued on
27.12.2016 is in the teeth of the recommendation made by the internal committee
whereby and where under it has been recommended for appropriate action against
the respondent in accordance with the provision of the service rule and
certainly the service rule to inflict major punishment for removal from service
contains a procedure under the provision of Rule 68, as such the punishment
which has been proposed for removal from service in terms of Rule 67(1) of SBI
Officers" Service Rule can only be inflicted and will be said to be in
accordance with service rule if followed by the procedure laid down U/s.68 of
the aforesaid rule.
In view thereof the impugned notice
dtd.27.12.2016 is not sustainable in the eye of law, accordingly quashed.
12. In the result the matter is
remitted before the disciplinary authority of the petitioner to initiate a
proceeding as per the applicable Discipline and Appeal Rule and conclude the
same within the period as per the stipulation made under the provision of Act,
2013.
With the above observation and
directions the writ petition stands disposed of.” Hence, it was his argument
that the show cause notice issued against the petitioner is unsustainable and
the same needs to be quashed.
14. Mr.John Zachariah, learned
counsel for the 1st Respondent / College has reiterated that after appointment
of an Enquiry Committee, the role
of the College Management, insofar as inquiry under the Act is very limited and
the College Management has to accept the report of the Committee and take
further course of action against delinquent persons. He went on to add that the
petitioner did not ask for reopening of the enquiry, rather it was his case that
required documents were not furnished in time, despite receipt of the same at a
later point of time. It was further pleaded that in terms of Service Rules, the
Committee has been constituted and there is no two separate Rules contemplated,
namely, one under the Act and the another under the Service Rules and whatever
proceedings initiated against the petitioner was acted upon under the Service
Rules, for which, the provisions of the Act has been referred to for
establishing the charges. Learned counsel for R1 in support of his contention
has cited the following judgment of this Court in the case of The Management of
Christian Medical College and Hospital, Vellore vs. Mr.S.G.Dhamodharan
[W.P.No.29012 of 2018] decided on 15.03.2019, in which it has been held as
under:
“15. In the case on hand, the
sexual harassment case was complained by the woman employed by the petitioner
Management and on the basis of which, an enquiry was conducted by the special
committee constituted for the purpose.
In terms of
the Vishaka guidelines, the committee has rendered its findings against the
respondent employee and on the basis of which, an action was taken by the
Management in dismissing the
W.P.15145 of 2019 employee from service. Once the committee makes a
recommendation by giving a report against the employee concerned, as rightly
contented by the learned counsel for the petitioner that the Management had no
choice except to take action and in this case, the Management had taken a call
to terminate the service of the employee by considering the circumstances of
the case. When the Management had no choice except to take action against the
employee concerned, how could the Industrial Tribunal compel the parties to
adduce a fresh evidence to prove the charge against the employee by sitting in
appeal over the conclusion reached by the special committee.
16. The
conclusion reached by the Industrial Tribunal that the enquiry was not fair and
proper, cannot be countenanced both in law and
on facts, since the committee's finding cannot be trifled with by the
Industrial Tribunal or the Labour Court as an appellate authority.
Unfortunately, the Industrial Tribunal by non-application of mind, has treated
the case of sexual harassment on par with normal case where an employee suffers
adverse action by the Management.”
15. In reply to the above,
Mr.V.Vijay Shankar, learned counsel for the Petitioner has submitted that the
aforesaid judgment relied upon by the 1st Respondent is not applicable to the
present case, inasmuch as the said case falls within the purview of Industrial
Dispute Act and Section
13 of the Act has not been referred to and considered in that case.
16. Learned Counsel for the 2nd
Respondent / Committee of Enquiry / Internal Complaints Committee has
strenuously contended that the principle applied to a normal enquiry may not be
applicable to the enquiry
conducted under the Act. He strongly refuted the contention of the
learned counsel for the petitioner that the enquiry was conducted behind the
back of the petitioner, as the Petitioner was represented by his Lawyer. There
were 34 complaints received from 34 students of the III year B.Sc., Zoology
against the Petitioner and one Dr.Raveen and after a thorough enquiry, the
Committee had come to the conclusion that the provisions of Section 2(n) would get
attracted and the conduct of the petitioner clearly falls within the ambit of
sexual harassment.
17. It was the contention of the
learned counsel for the 2nd Respondent that the averments made by the
petitioner that he was made a scapegoat and was roped in falsely in order to
hide the mistake of a student, who did not submit the record note book, have no
basis, as not only the said student, but also other students had not submitted
their record book in time and their lapses were condoned and the record notes
accepted. It was his further contention that the Committee, being aware of the
fact that the issue of sexual harassment has to be handled with utmost care,
had sought the assistance of an expert Advocate, having wide exposure of
handling such cases of sexual harassment.
The learned counsel for the 2nd
Respondent in the midst of his argument has referred to the judgment of the
Hon'ble Supreme Court in the case of The Chairman, Navodaya Vidyalaya
Samiti, Ministry of HRD and others vs. T.Murugesan and others, reported in
MANU/TN/0760/2008 and contended that the Hon'ble Supreme Court had clarified
the Vishaka's case and held that the report of the Sexual Harassment Committee
is the base for proceeding further in the sexual harassment case and bearing in
mind the importance shown to the report in the said judgment, the Committee
conducted the enquiry. For the sake of brevity, the relevant passages of the
judgment are extracted below:
“27.
Subsequently, the Supreme Court considered the complaints made by various
representations of the woman's organisations and passed further order
clarifying Vishaka's case where the Supreme Court directed Governments to
strictly go by the report of the Sexual Harassment Committee and made the
enquiry report as the starting point of further proceedings. The employers were
directed to proceed from the stage of the enquiry report and take appropriate
action. In this regard, the Supreme Court also directed for amendment of
relevant Service Rules.
28. This order
of the Supreme Court was made on 26.01.2004 in Medha Kotwal Lele and Ors. v.
Union of India and Ors. W.P. (Crl) Nos. 173-177/1999. The order of the Supreme
Court reads as follows:
Several
Petitions had been filed before this Court by Women Organisations and on the
basis of the note prepared by the Registrar General that in respect of sexual
harassment cases the Complaints Committees were not formed in accordance
with the guidelines issued by this Court in Vishaka v. State of Rajasthan and
that these petitions fell under Clause (6) of the PIL Guidelines given by this
Court i.e. "Atrocities on Women" and in any event the Guidelines
setout in Vishaka were not being followed. Thereupon, this Court treated the
petitions as Writ Petitions filed in public interest. Notice had been issued to
several parties including the Government concerned and on getting appropriate
responses from them and now after hearing Learned Attorney General for UOI and
learned Counsel we direct as follows: Complaints Committee as envisaged by the
Supreme Court in its Judgment in Vishakas Case , will be deemed to be an
inquiry authority for the purposes case will be deemed to be an inquiry
authority for the purposes of Central Civil Services (Conduct) Rules 1964
(hereinafter called CCS Rules) and the report of the complaints Committee shall
be deemed to be an inquiry report under the CCS rules. Thereafter the
disciplinary authority will act on the report in accordance with the rules.
Similar amendments shall also be
carried out in the Industrial Employment (Standing Order) Rules.
29. Therefore,
now the employers can have only one stage action. After the Sexual Harassment
Committee's report, they must proceed to impose punishment on an employee found
guilty of sexual harassment. This order came to be passed by the Supreme Court,
as the Court had received complaints that the earlier procedure led the woman
being further harassed by attending before two separate enquiries one by the
Special Committee and the other before the Enquiry Officer appointed in terms
of Service Rules. In the light of the above, the question of examining the victim girl in the presence of
the first respondent does not arise.”
19. Thus, it was prayed that since the Committee, after
adhering to all the procedures adumbrated under the Act, had submitted its fact
finding report to the College, there is no necessity to interfere with the said
findings and the Writ Petition is liable to be dismissed at the threshold.
20. Heard the learned counsel for the petitioner and
carefully analysed the material documents available on record submitted on
either side.
21. A meticulous reading of the
entire averments set out in the case unwraps the facts that the Petitioner was
appointed as Assistant Professor in the Zoology Department and as a part of
curriculum activity, an Industrial Tour was arranged for the students of III
year between 09.01.2019 and 14.01.2019 to Bangalore, Mysore and Coorg, in which
around 46 students participated. The said tour brought disrespect not only to
the College, but also put an end to the career development of the petitioner
and one Dr.Raveen, pursuant to the complaints received from as many as 34
students, alleging sexual assault on them. The petitioner was charged for
his supportive behaviour extended by him to Dr.Raveen in respect of his sexual
harassment to female students and though the act of the petitioner cannot be
said to be so serious as that of Dr.Raveen, from the facts pleaded herein, the
petitioner also involved in certain acts, which is also construed as an
unbecoming conduct of the Petitioner, attracting the provisions of the Act.
22. The question as to whether the conduct of the petitioner
would attract the provisions of the Act or not cannot be gone into and answered
at this stage, as the Petitioner has challenged the second show cause notice
issued against him in the present case on hand.
23. The main whack of the
petitioner on the issuance of the second show cause notice was that there was
an utter and a gross violation of principles of natural justice, as he was not
permitted to stay in the hall during enquiry of girl students. The said
contention was highly repudiated by the 2nd Respondent stating that Advocates
of the Petitioner and Dr.Raveen's choice were allowed to represent them in the
enquiry and whatever they wanted to convey to the Committee were passed on
through their Advocates. This Court finds justification in the act of the
Committee, on the reasoning that as soon as the students, who lodged
complaints against the Petitioner, notice the personal appearance of the petitioner
in the very same hall, there are chances of their getting panic out of fear and
threat and as a result, the entire truth will not come out of their mouth,
thereby, leaving allegations levelled against the Petitioner and Dr.Raveen
unnoticed by the Committee. Hence, in the considered opinion of this Court,
there is no violation of the principles of natural justice by the Committee in
the conduct of the enquiry and this Court finds no infirmity with the report of
the Committee.
24. The second attack on the
impugned show cause notice was that when the service rules are available for
the College, initiation of action against the petitioner on the basis of the
report of the Committee is arbitrary in nature, for which, it was replied by
the 1st Respondent that the report of the Committee was referred to by the
College in support of issuance of show cause notice only for unearthing the
fact that there are prima facie case made out against the petitioner in respect
of allegations of sexual harassment and not otherwise. A reading of the
impugned show cause notice discloses the fact that there is a Board of
Directors in the College to look into all these issues and they not only
considered the report of the
Committee, but also verified the past records of the petitioner and found that
there was no extenuating circumstances in favour of the petitioner. From this,
an inference can be drawn that the petitioner may be a habitual offender of
involving himself in such activities along with Dr.Raveen. The next march of
the College after issuance of the show cause notice was restrained by the
petitioner by way of filing the present writ petition and it cannot be said
that the action taken by the College was purely on the basis of the report of
the Committee.
25. It is worthwhile to mention
here that the Hon'ble Supreme Court, while dealing with a case of seeking
quashment of show cause notice in the case of Union of India and another vs.
Kunisetty Satyanarayana, reported in (2006) 12 SCC 28, has been pleased to
hold as under:
“13. It is well settled by a
series of decisions of this Court that ordinarily no writ lies against a charge
sheet or show-cause notice vide Executive Engineer, Bihar State
Housing Board vs. Ramdesh Kumar Singh and others JT 1995 (8) SC
331, Special Director and
another vs. Mohd. Ghulam Ghouse and another AIR 2004 SC 1467, Ulagappa
and others vs. Divisional Commissioner, Mysore and others 2001(10) SCC
639, State of U.P. vs.
Brahm Datt Sharma and another AIR 1987 SC 943 etc.
14. The reason
why ordinarily a writ petition should not be entertained against a mere
show-cause notice or charge-sheet is that at that stage the writ petition
may be held to be premature. A mere charge-sheet or show-cause notice does not
give rise to any cause of action, because it does not amount to an adverse
order which affects the rights of any party unless the same has been issued by
a person having no jurisdiction to do so. It is quite possible that after
considering the reply to the show-cause notice or after holding an enquiry the
authority concerned may drop the proceedings and/or hold that the charges are
not established. It is well settled that a writ lies when some right of any
party is infringed. A mere show-cause notice or charge-sheet does not infringe
the right of any one. It is only when a final order imposing some punishment or
otherwise adversely affecting a party is passed, that the said party can be
said to have any grievance.
15. Writ
jurisdiction is discretionary jurisdiction and hence such discretion
under Article 226 should
not ordinarily be exercised by quashing a show-cause notice or charge sheet.
16. No doubt,
in some very rare and exceptional cases the High Court can quash a charge-sheet
or show-cause notice if it is found to be wholly without jurisdiction or for
some other reason if it is wholly illegal. However, ordinarily the High Court
should not interfere in such a matter.”
26. In this regard, the judgment
relied upon by the learned counsel for the Petitioner in Jyoti Prakash vs. Internal
Appellate Committee and others (cited supra) is distinguishable to the
extent that in the said judgment, it was observed that the punishment of
removal from service was proposed straightaway in the teeth of the
recommendation made by the Internal Committee therein without invoking
the appropriate service rules, especially ignoring the procedures contemplated
under Rule 68 of SBI Officers Service Rules therein. Therefore, the said
judgment will not come to the rescue of the petitioner.
27. It is not disputed that the
petitioner did not seek for reopening of the enquiry and even assuming that the
right of the petitioner is deprived by the Committee, as he was forced to be
dependent on his Advocate to defend himself, considering the fact that the allegations
were raised by female students and it is not fair to call upon the girls in the
garb of enquiry on several occasions to give evidence, that too before the
person, against whom complaint was submitted. That apart, the evidence of one
Tanushree, who has narrated the entire incident, is sufficient to corroborate
the version of other similarly affected girls and there is no need to obtain
statements in public from all girls and in such an event, their future will be
at stake. This Court suggests that the said Tanushree ought to be taken for
counselling in order to make her overcome the bad experiences and I want to
emphasise here that the mistake is also on the part of the 1st Respondent /
College by deputing only two lady teachers to control several female students.
28. This Court is of the view that the petitioner, in order
to avoid such mishap to happen, should have withdrawn his participation from
the tour, if he has no confidence in him, as the job, which he is holding is a
respectful one. Mahatma Gandhi, the Father of the Nation once stated that “a
teacher cannot be without character. If he lacks it, he will be like salt
without its savour. A teacher must touch the hearts of his students. Boys
imbibe more from the teacher's own life than they do from books. If teachers
impart all the knowledge in the world to their students but do not inculcate
truth and purity amongst them, they will have betrayed them. ...”
29. Similarly, Dr.S.Radhakrishnan
has stated that “we in our country look upon teacher as gurus or, as acharyas.
An Acharya is one whose aachar or conduct is exemplary. He must be an example
of Sadachar or good conduct. He must inspire the pupils who are entrusted to
his care with love of virtue and goodness. ....The Indian society has elevated
the teacher as “Guru Brahma, Guru Vishnu, Guru Devo Maheswaraha” As Brahma, the
teacher creates knowledge, learning, wisdom and also creates out of his
students, men and women, equipped with ability and knowledge, discipline and
intellectualism to enable them to face the challenges of their lives.
As Vishnu, the teacher is
preserver of learning. As Maheswara, he destroys ignorance. ....."
30. This Court, in the case of
The Secretary, Sri Ramakrishna Vidhyalayam High School, Tirupparaithurai,
Tiruchirapalli District Vs. State of Tamil Nadu, Rep.by Special Commissioner
and Secretary to Government and others, reported in 1990 (9) WLR 62, had
vividly described the respectful position of a teacher in this country as
follows:
“51.It is very lamentable state
of affairs that in this country, a teacher who was considered as equal to God,
should fall from the high pedestal to the lowest level. Out scriptures command
the students to consider the teacher as a God (Acharya Devo Bhava). The term
?Acharya? in Sanskrit means a person who not only teaches lessons to students,
but also ensures good conduct of his pupils. The more important part of the
definition is that he shall himself practice what he preaches. In Sanskrit
language the term ?Guru? also means teacher. The syllable, 'Gu' represents
darkness (symbolishing ignorance). The syllable, 'Ru' represents the removal
thereof.
Thus, a Guru is so called as he
removes the darkness and the ignorance from the minds of the students. In fact,
there is a saying that it is only with the blessings of a teacher that a person
blossoms into a full man.”
32. Before parting with the judgment, this Court feels it
appropriate to point out that Christian missionaries are always on the source
of attack in one way or the other and in the present era, there are several
accusations against them for indulging in compulsory conversion of people of
other religions into Christianity. Now, there is a general feeling amongst the
parents of students, especially female students that co-educational study in
Christian institutions is highly unsafe for the future of their children and
though they impart good education, the preach of morality will be a million
dollar question. As long as a religion is practiced in streets in lieu of its
worship places, like Temple, Mosque, Church, etc., such devastation, as in the
present case, does occur and will be mushrooming.
33. This Court do not want to go into the question of who is
at fault in the present case?, but at the same time, it has become imperative
for this Court to indicate that several enactments were brought into force for
safeguarding the interest of Women and we have to ask a question for
ourselves as to whether those laws are invoked by women with genuine reasons.
34. Certain laws, which are in
existence for easy access to women, lend itself to easy misuse that women will
find it hard to resist the temptation to “teach a lesson” to the male members
and will file frivolous and false cases. A similar trend is already being
observed in the case of anti-dowry law (498-A), which is being misused to such
an extent that the Supreme Court has termed it “Legal Terrorism”. The Hon'ble
Supreme Court in the case of Sushil Kumar Sharma vs. Union of India and others
(Writ Petition (civil) 141 of 2005), decided on 19.07.2015, has held as
follows:
“.....The object of the provision is prevention of the dowry
meance. But as has been rightly contended by the petitioner many instances have
come to light where the complaints are not bonafide and have filed with obligue
motive. In such cases acquittal of the accused does not in all cases wipe out
the ignomy suffered during and prior to trial.
Sometimes adverse media coverage adds to the misery. The
question, therefore, is what remedial measures can be taken to prevent abuse of
the well-intentioned provision. Merely because the provision is constitutional
and intra vires, does not give a
licence to unscrupulous persons to wreck personal vendetta or unleash
harassment. It may, therefore, become necessary for the legislature to find out
ways how the makers of frivolous complaints or allegations can be appropriately
dealt with. Till then the Courts have to take care of the situation within the
existing frame work. As noted the object is to strike at the roots of dowry
menace. But by misuse of the provision a new legal terrorism can be unleashed.
The provision is intended to be used a shield and not assassins' weapon. If cry
of "wolf" is made too often as a prank assistance and protection may
not be available when the actual "wolf" appears. There is no question
of investigating agency and Courts casually dealing with the allegations. They
cannot follow any strait jacket formula in the matters relating to dowry
tortures, deaths and cruelty. It cannot be lost sight of that ultimate
objective of every legal system is to arrive at truth, punish the guilty and
protect the innocent. There is no scope for any pre- conceived notion or view.
It is strenuously argued by the petitioner that the investigating agencies and
the courts start with the presumption that the accused persons are guilty and
that the complainant is speaking the truth. This is too wide available and
generalized statement. Certain statutory presumption are drawn which again are
reputable. It is to be noted that the role of the investigating agencies and
the courts is that of watch dog and not of a bloodhound. It should be their
effort to see that in innocent person is not made to suffer on account of unfounded,
baseless and malicious allegations. It is equally indisputable that in many
cases no direct evidence is available, and the courts have to act on circumstantial
evidence. While dealing with such cases, the law laid down relating to
circumstantial evidence has to be kept in view.
35. This is the right time for the Government to think of
suitable amendment in those laws in order to prevent its misuse so as to safeguard
the interest of the innocent masculinity too. No costs. Consequently, connected
miscellaneous petitions are closed.
13.08.2019 Index: Yes / No Internet: Yes / No Speaking
Order: Yes / No ar Note: Registry is directed to mark a copy of this order to
the Ministry of Law and Justice, New Delhi.
Issue order copy on 16.08.2019 W.P.15145 of 2019
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