Telangana High Court
Mr. Kedarnath Mahapatra vs Union Of India on 4 May, 2020
Equivalent citations: AIRONLINE 2020 TEL 57
Author: P.Naveen Rao
Bench: P.Naveen Rao
*THE HONOURABLE SRI JUSTICE P.NAVEEN RAO
+ WRIT PETITION NO.3680 of 2018
%04.05.2020
# Mr. Kedarnath Mahapatra, s/o. N.Ch.Mahapatra,
....petitioner
Vs.
$Union of India & others
.... Respondents
!Counsel for the petitioners : Sri K.Sudhakar Reddy
Counsel for the Respondents: Sri K.S.V Subba Rao
<Gist :
>Head Note:
Civil Appeal No. 8782 of 2019 dt 6.12.2019
Civil Appeal No. 10592 of 2014 dt 28.11.2014
2009 (6) ALD 111
C.A.N 381 of 2016 in W.P.C.T No. 7 of 2010 dt 29.4.2019
WP No. 21012 of 2019 dt 15.10.2019
(1999) 3 SCC 679
(2006) 5 SCC 4546
(2019) 6 SCC 155
(2004) 7 SCC 442
(1999) 1 SCC 759
(1997) 6 SCC 241
(2005) 7 SCC 764
(2019) 2 SCC 703
PNR,J
WP 3680/2018
2
IN THE HIGH COURT FOR THE STATE OF TELANGANA
********
WRIT PETITION NO.3680 of 2018
BETWEEN:
Mr. Kedarnath Mahapatra, s/o. N.Ch.Mahapatra,
PETITIOENR
AND
Union of India & OTHERS RESPONDENTS.
JUDGMENT PRONOUNCED ON : 4.5.2020
THE HON'BLE SRI JUSTICE P.NAVEEN RAO
1. Whether Reporters of Local Newspapers may :
Be allowed to see the Judgments ? :YES
2. Whether the copies of judgment may be marked :
To Law Reporters/Journals : YES
3. Whether Their Ladyship/Lordship wish to : NO
See fair Copy of the Judgment ? :
PNR,J
WP 3680/2018
3
THE HONOURABLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION No.3680 of 2018
ORAL ORDER:
Facts to the extent relevant are as under:
Petitioner is working in the cadre of Principal in the respondent Society. At the relevant point of time petitioner was posted in the school run by the society in Hyderabad. This Court consciously not disclosing the details of girl student, parents and the school. Mother of girl student lodged complaint in the Rachakonda police station on 24.11.2017 alleging that petitioner misbehaved with her daughter at about 15.30 hours on 28.10.2017. Her daughter was studying in Class IX of the school and was aged about 14 years. Crime No. 820 of 2017 was registered under Section 354 (a) of IPC and Section 12 of Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012) (for short referred to as POCSO Act). He was arrested and sent to judicial custody and was later released on bail. On 31.10.2017, father of the girl child informed the Chairman of the Society in writing that his daughter was subjected to sexual harassment by the petitioner.
2. In the complaint lodged with police, mother of girl student alleged that on 28.10.2017 at about 15.30 hours, when her daughter was ready to leave school, petitioner called her into his cabin, offered her snacks and lassi and when she was about to leave the cabin, he closed the door, held her and kissed her; when she raised hues and cries, petitioner opened the door after taking assurance from her that she would not disclose the incident to any other person. In the complaint lodged by the father of said girl student with the Chairman of the respondent society, complained that his daughter informed about the harassment only on 29.10.2017.
PNR,J WP 3680/2018 4
3. Services of petitioner were placed under suspension by order dated 7.11.2017. On 29.11.2017 disciplinary proceedings were initiated against petitioner referring to the alleged incident dated 28.10.2017. On 1.8.2017 enquiry authority was appointed. In this writ petition, petitioner is challenging the initiation and continuation of disciplinary proceedings.
4. Heard learned counsel for petitioner Sri Sudhakar Reddy and learned counsel for respondent Sri K V Subba Rao.
5. According to learned counsel for petitioner, as charges framed in the disciplinary proceedings are directly arising out of the crime No. 820 of 2017 registered in Kushaigude Police Station, if disciplinary proceedings are conducted before conclusion of trial in criminal case, grave prejudice would be caused to petitioner to defend in criminal case as he will be forced to disclose his defence in the disciplinary proceedings. According to the learned counsel, substance of the charge in the disciplinary proceedings is same to that of the charge leveled in criminal proceedings, the witnesses and documents cited are same and, therefore, disciplinary authority ought to have deferred conducting of disciplinary proceedings till conclusion of trial in the criminal case. Not accepting the request of petitioner and proceeding to hold disciplinary proceedings amounts to arbitrary exercise of power and is illegal. He would submit that petitioner's case falls into the exception category as laid down by Supreme Court in several decisions.
5.1. In support of his contentions, learned counsel placed reliance on the following decisions:
PNR,J WP 3680/2018 5 State of Bihar & Ors Vs Phulpari Kumari1, S Bhaskar Reddy & Another Vs Superintendent of Police and another2, P Venkat Reddy Vs Senior Divisional Security Commissioner, Railway Protection Force, SCR, Vijayawada and another3, Sima Sarkar Vs Bharat Sanchar Nigam Limited and others4, Mallaraset Rambabu Vs State of Telangana5 Capt. M.Paul Anthony v. Bharat Gold Mines Ltd., and another6 and G.M. Tank v. State of Gujarat and others7.
6. Per contra, according to Sri K.S.V. Subba Rao, learned counsel appearing for respondent society, there is no bar in taking disciplinary action merely because the petitioner is also involved in criminal proceedings. According to learned counsel, criminal proceedings and disciplinary proceedings stand on different footing and are independent and, therefore, they can be proceeded simultaneously. Furthermore, the allegations in the disciplinary proceedings are not the same as leveled in the criminal case and, therefore, disciplinary proceedings can be continued. The complainant in criminal proceedings is mother where as in the disciplinary proceedings it is father. Thus, primary witness is not the same. Petitioner cannot seek mandamus to stall disciplinary proceedings merely because criminal case is pending.
6.1. Sri Subba Rao, relied on following decisions. Secretary, Lucy Sequeira Trust and another Vs. Kailash Ramesh Tandel and others8 and Kendriya Vidyalaya Sangathan and others Vs T Srinivas9.
1 Civil Appeal No. 8782 of 2019 dt 6.12.2019 2 Civil Appeal No. 10592 of 2014 dt 28.11.2014 3 2009 (6) ALD 111 4 C.A.N 381 of 2016 in W.P.C.T No. 7 of 2010 dt 29.4.2019 5 WP No. 21012 of 2019 dt 15.10.2019 6 (1999) 3 SCC 679 7 (2006) 5 SCC 4546 8 (2019) 6 SCC 155 PNR,J WP 3680/2018 6
7. I have carefully considered respective submissions and the decisions cited at the bar.
8. The only issue for consideration is whether it is permissible to the disciplinary authority to initiate and continue disciplinary proceedings on the charge levelled against the petitioner, impugned herein, even though the gravemen of charge relates to an alleged incident of sexual harassment of girl student and filing of charge sheet in the Court of Metropolitan Sessions Judge, Cyberabad at L.B. Nagar in Crime No.820 of 2017 of Kushaiguda Police Station, where petitioner is accused.
9. Whenever allegations of misconduct are made against an employee, employer is competent to take disciplinary action and punish him on proven misconduct. Such punishment can vary from removal/dismissal to warning. Before acting against an employee on the alleged misconduct, the employer is required to follow due process and on establishment of misconduct appropriate punishment can be imposed. The gravemen of allegation in disciplinary proceedings may also attract penal provisions which may entail launch of prosecution by police. In such a case, the employee would be facing disciplinary action under the employer and criminal prosecution. Thus, on same allegation, a person who is also an employee of an organisation can face two pronged action, disciplinary action by employer and criminal proceedings by the State.
10. Relationship between employer and employee is one of contract and regulated by terms of contract and/or Rules/ Regulations/Byelaws. The continuation in employment is based on trust 9 (2004) 7 SCC 442 PNR,J WP 3680/2018 7 and confidence of employer. Once employer loses confidence and trust on employee, he may seek to dispense with the services of employee. A proven misconduct may result in cessation of relationship of master and servant. Once the relationship is severed, it is open to employer to employ another person and former employee is free to pursue any other avocation.
11. On the contrary, penal law is structured on the concept that if a person commits crime, it may be against a person but would be a crime against the society. Therefore, even if a crime is committed in a private place or within the four corners of employment, it is still a crime against the society and State prosecutes him.
12. In the disciplinary action misconduct can be established based on principle of preponderance of probabilities. Circumstantial evidence can be taken into consideration to hold the charge as proved and to impose appropriate punishment. On the contrary, criminal law requires that the charges levelled against a person must be proved beyond reasonable doubt and burden lies on the prosecution to establish the charges. Any deficiency and element of doubt in evidence will go against the prosecution. Thus, it is presumption versus strict rules of evidence, respectively.
13. Whenever, an employee is subjected to two pronged action, the issue that often visits the constitutional Courts is whether it is desirable to continue disciplinary action while criminal prosecution is pending on the same set of allegations. The challenge is mounted by employee against continuance of disciplinary proceedings on the ground that while participating in the enquiry he may have to disclose his defence and in such a case, it may be used against him in criminal PNR,J WP 3680/2018 8 proceedings and would greatly prejudice in defending himself in criminal case. Thus, the question that often troubles the Constitutional Courts is in what circumstances, an embargo can be imposed on employer from proceeding against employee in disciplinary matter pending investigation or trial in a criminal case.
14. There is well illuminated precedential path that takes this Court to the issue of desirability to continue domestic enquiry pending criminal investigation/trial. Few of them are noted hereunder.
14.1 In Mallaraset Rambabu, this Court considered precedent decisions on the same issue and held as under:
"24...............From several precedent decisions including Stanzen Toyotetsu, broad principle evolved is, ordinarily disciplinary action should not be stayed even when criminal case is pending on the same set of facts and law and even if it is stayed, if there is delay in concluding trial, the employer should be permitted to hold domestic enquiry. Burden is on the employee to satisfy the Court that the charges levelled in both proceedings are same; the material facts and evidence relied on by the employer is same; that there are complicated questions of law and facts involved; and he has not disclosed his defense so far. Even if employee satisfies above parameters, Court may refuse to stay the domestic enquiry if there is a likelihood of delay in commencement and conclusion of criminal proceedings. Each case is required to be considered on its merits, by the Constitutional Courts whenever an issue of this nature comes up before the Court."
(emphasis supplied) 14.2 In Kendriya Vidyalaya Sangathan, disciplinary proceedings were initiated leveling three charges. The disciplinary action was challenged by the employee alleging that on the identical facts, criminal trial was pending and therefore the disciplinary proceedings should not be continued. The Central Administrative Tribunal allowed the claim of the employee by holding that first two articles of charges are identical to the charge leveled against the employee before the Special Court under Prohibition of Corruption Act and third charge is inter-connected to the other two charges. The High Court upheld the decision of the Tribunal. The Supreme Court found fault with the view taken by the Tribunal as upheld by the High Court. The relevant portion of the Supreme Court observations read as under:
PNR,J WP 3680/2018 9 "12. We think the above ratio of law laid down by this Court applies aptly to the facts of the present case also. ....
13. As stated above, in the case in hand, both the Tribunal and the High Court proceeded as if a departmental enquiry and a criminal trial could not proceed simultaneously, hence, they stayed the departmental enquiry which by itself, in our opinion, is contrary to the principles laid down in the above cited cases."
15. Within the broader concept of scope of continuing two proceedings simultaneously, departmental and criminal, one important aspect needs to be considered is, in cases where the allegations made are on sexual harassment of a girl student, is it desirable to keep in abeyance the disciplinary proceedings, more so, when employer would not be certain on how long it takes for criminal proceedings to terminate. In this case, already two years are over. This aspect was considered in the following two decisions.
15.1. Case in Secretary, Lucy Sequeira Trust, arises in similar circumstances. Only difference in that case is there were number of complaints from the parents and students, whereas, in the instant case, there was only one complaint. Parent of a child alleged objectionable behavior against her daughter by first respondent; student lodged complaint with the police alleging commission of offence punishable under Section 509 of IPC; another parent also made a complaint about the behavior of first respondent; the girl concerned lodged complaint with the police. Disciplinary action was initiated against the employee by constituting enquiry committee. There was difference of opinion among the members of the enquiry committee, while one member firmly believed that action should be taken against the first respondent without waiting for trial to be completed in the criminal case, the other two members differed with the said opinion and advised to defer the disciplinary action till conclusion of the trial. Ignoring the objection raised by two members of the Committee, Management terminated the services of first PNR,J WP 3680/2018 10 respondent. On a challenge, School Tribunal remanded the matter to the employer holding that appropriate procedure was not followed. High Court affirmed the decision of the Tribunal. Hence, appeal was preferred before the Supreme Court. Supreme Court held as under:
"17. It is well settled that a departmental proceeding and proceedings in a criminal court are completely different. The purpose is different, the standard of proof is different and the approach is also different. The initiation of the process in a departmental proceeding, specially on charges with which we are concerned in the present matter can never be said to be amounting to contempt of court even if the criminal proceedings were pending. The allegations made against Respondent 1 were of such level and dimension that an immediate action on the departmental front was required to be undertaken and such action by its very nature had to be completely independent. Whether any criminal trial was pending or not would not be having any bearing on the pending issue before the Inquiry Committee. We have, therefore, no hesitation in observing that the approach of the nominee of Respondent 1 and of the State Awardee Teacher was completely wrong and unsustainable."
(emphasis supplied) 15.2. Supreme Court observed that in matters where allegations of sexual harassment are made, the view taken by the Supreme Court in Apparel Export Promotion Council Vs A.K. Chopra10 has to be adopted.
15.3. In Apparel Export Promotion Council, woman employee complained against Private Secretary to the Chairman of the Council alleging that his behavior was objectionable and he tried to molest her physically. In the domestic enquiry, the allegation leveled against Private Secretary was proved and he was removed from service. In the second round of litigation, High Court opined that the allegation against the Private Secretary was that he tried to molest but in fact had not molested the complainant, therefore his conduct did not amount to committing grave misconduct resulting in removal from service and directed reinstatement. As the Council was unsuccessful before the Division Bench, it preferred Civil Appeal before the Supreme Court. On considering the view expressed by the Supreme Court in Vishaka Vs 10 (1999) 1 SCC 759 PNR,J WP 3680/2018 11 State of Rajasthan11, Supreme Court explained what constitutes allegation of sexual harassment and how it affects the right of a woman and the need to implement and enforce obligations of the State under International Conventions and norms. The relevant portion reads as under:
"25. An analysis of the above definition shows that sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such a conduct by the female employee was capable of being used for effecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile working environment for her.
26. There is no gainsaying that each incident of sexual harassment at the place of work, results in violation of the fundamental right to gender equality and the right to life and liberty -- the two most precious fundamental rights guaranteed by the Constitution of India. As early as in 1993, at the ILO Seminar held at Manila, it was recognized that sexual harassment of women at the workplace was a form of "gender discrimination against women". In our opinion, the contents of the fundamental rights guaranteed in our Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment and abuse and the courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated and that there can be no compromise with such violations, admits of no debate. The message of international instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 ("CEDAW") and the Beijing Declaration which directs all State parties to take appropriate measures to prevent discrimination of all forms against women besides taking steps to protect the honour and dignity of women is loud and clear. The International Covenant on Economic, Social and Cultural Rights contains several provisions particularly important for women. Article 7 recognises her right to fair conditions of work and reflects that women shall not be subjected to sexual harassment at the place of work which may vitiate the working environment. These international instruments cast an obligation on the Indian State to gender-sensitise its laws and the courts are under an obligation to see that the message of the international instruments is not allowed to be drowned. This Court has in numerous cases emphasised that while discussing constitutional requirements, court and counsel must never forget the core principle embodied in the international conventions and instruments and as far as possible, give effect to the principles contained in those international instruments. The courts are under an obligation to give due regard to international conventions and norms for construing domestic laws, more so, when there is no inconsistency between them and there is a void in domestic law. (See with advantage -- Prem Shankar Shukla v. Delhi Admn. [(1980) 3 SCC 526 : 1980 SCC (Cri) 815 :
AIR 1980 SC 1535] ; Mackinnon Mackenzie and Co. Ltd. v. Audrey D' Costa [(1987) 2 SCC 469 : 1987 SCC (L&S) 100 : JT (1987) 2 SC 34] ; Sheela Barse v. Secy., Children's Aid Society [(1987) 3 SCC 50, 54 : 1987 SCC (Cri) 458] SCC at p. 54; Vishaka v. State of Rajasthan [(1997) 6 SCC 241 : 1997 SCC (Cri) 932 : JT (1997) 7 SC 384] ; People's Union for Civil Liberties v. Union of India [(1997) 3 SCC 433 : 1997 SCC (Cri) 434 : JT (1997) 2 SC 311] and D.K. Basu v. State of W.B. [(1997) 1 SCC 416, 438 : 1997 SCC (Cri) 92] SCC at p. 438.)
27. In cases involving violation of human rights, the courts must forever remain alive to the international instruments and conventions and apply the same to a given case when there is no inconsistency between the international norms and the domestic law occupying the field. In the instant case, the High Court appears to have totally ignored the intent and content of the international conventions and norms while dealing with the case.
28. The observations made by the High Court to the effect that since the respondent did not "actually molest" Miss X but only "tried to molest" her and, therefore, his removal from service was not warranted, rebel against realism and lose their sanctity and credibility. In the instant case, the behaviour of the respondent did not cease to be outrageous for want of an actual assault or touch by the superior officer. In a case involving charge of sexual harassment or attempt to sexually molest, the courts are required to examine the broader probabilities of a case and not get swayed by insignificant discrepancies or narrow technicalities or the dictionary meaning of the expression "molestation". They must examine the entire material to determine the genuineness of the complaint.
The statement of the victim must be appreciated in the background of the entire case. Where the evidence of the victim inspires confidence, as is the position in the instant case, the courts are obliged to rely on it. Such cases are required to be dealt with great sensitivity. Sympathy in such cases in favour of the superior officer is wholly misplaced and mercy has no relevance. The High Court overlooked the ground realities and ignored the fact that the conduct of the respondent against his junior female employee, Miss X, was wholly against moral sanctions, decency and was offensive to her modesty. Reduction of punishment in a case like this is bound to have a demoralising effect on the women employees and is a retrograde step. There was no justification for the High Court to interfere with the punishment imposed by the departmental authorities. The act of the respondent was unbecoming of good conduct and behaviour expected from a superior officer and undoubtedly amounted to sexual harassment of Miss X and the punishment imposed by the appellant was thus commensurate with the gravity of his objectionable behaviour and did not warrant any interference by the High Court in exercise of its power of judicial review."
(emphasis supplied) 11 (1997) 6 SCC 241 PNR,J WP 3680/2018 12
16. From the precedent decisions, it is safe to assume that disciplinary action should not be stopped merely because criminal case is pending and should be concluded as expeditiously as possible. Differing disciplinary proceedings on the ground that criminal case is pending is an exception to normal rule and to be exercised in a case where the criminal proceedings involve complicated questions of facts and law and no greater harm would be caused to employer by differing the disciplinary proceedings; that there is no possibility of delay in conclusion of criminal trial. Each case has to be considered in the facts of the case. Where allegation of sexual harassment is made, more so, against a girl student in an educational institution, it is not a case of merely committing a misconduct but by such conduct, if established, as held by the Hon'ble Supreme Court in the Apparel Export Promotion Council, it would be a case of offending the fundamental right to equality and right to life and liberty of the girl student. Writ Court also should keep in mind that in a case of sexual harassment issue is no more confined to the employer and employee, but it also concerns the girl student, her parents and other students in the school. Thus, it is not desirable to keep in abeyance disciplinary proceedings on the ground that criminal case is pending.
17. Educational institution is a place where a child's over all personality would develop. It is a place of learning, where child acquires skills and knowledge. Proper environment in the school is an essential requirement to ensure systematic learning and personality development. At the crucial stage of child more particularly when the child is in adolescent age, the child requires care, comfort and protection and should be allowed to express herself/himself in free and fair environment. The management of an educational institution has to PNR,J WP 3680/2018 13 ensure that there is no hindrance caused to the child's progress in learning and shall create free and fair environment. Principal/ Head Master is the most important person in the educational institution.
18. The credibility of the educational institution depends on ensuring safety and security of the students prosecuting education in the institution. Whenever an allegation of sexual harassment is made, in an educational institution, prompt action is required and if allegation is proved, to take deterrent action so that the students, parents and other staff feel safe and secure and the image and reputation of the institution does not suffer. Therefore, whenever an allegation of sexual harassment of a girl child is made, it cannot be looked into as a normal straight jacket disciplinary action vis a vis criminal proceedings but has to be viewed more seriously and the writ Court should not interject conducting of disciplinary proceedings.
19. Disturbed by the turn of events and launch of prosecution by the police against petitioner, disciplinary action was set in motion against petitioner. Annexure I of the charge memo dated 29.11.2017 reads as under:
" Shri Kedarnath Mahapatra, EMPID No. 1799,while working as a Principal in Atomic Energy Central School No.2, Hyderabad; on 28/10/2017 at around 1530 hrs called Kum.U Jahnavi, a student of Class IX/B, AECS-2, Hyderabad into his office room, locked his office room from inside himself and indulged in an immoral sexual behaviour with the said girl student thereby failed to maintain absolute integrity and devotion to duty; exhibited grossly immoral conduct and exhibited untrustworthiness by spoiling the reputation of the AECS-II, Hyderabad as well as Atomic Energy Education Society thereby acted in a manner unbecoming of an employee of AEES contravening of the provisions of sub rule (1) (i) (ii) and (iii) of Rule 3 of CCS (Conduct) Rules, 1964."
(emphasis supplied)
20. There are three limbs to the article of charge. In the first limb, the disciplinary authority alleges that calling the girl student to his room, closing the door of the office room and indulging in immoral sexual behaviour with the girl student would amount to failing to maintain absolute integrity and devotion to duty; in the second limb, it is alleged PNR,J WP 3680/2018 14 that he exhibited grossly immoral character; and in third limb it is alleged that he exhibited untrustworthiness by spoiling the reputation of the AEES-II, thereby acted in a manner unbecoming of an employee. In other words, by reacting to the complaint lodged by father of the girl student, the disciplinary authority points out to the petitioner that by his conduct, he failed to maintain absolute integrity and devotion to duty and exhibited untrustworthiness as an employee of the respondent society.
21. The respondent society adopted the Conduct Rules and Classification Control and Appeal Rules governing the Central Government service. Rule 3 of the Conduct Rules require every employee at all times to maintain absolute integrity, devotion to duty and do nothing unbecoming of a Government servant. Rule 3-C of the Conduct Rules prohibits sexual harassment of woman at the work place. Therefore, the disciplinary authority alleges that calling the girl student to his room, locking the door of the room by keeping the girl student inside room would amount to misconduct. The employer alleged that by such conduct, petitioner has tarnished the image of the institution. Therefore, nature of enquiry by the employer is to assess whether petitioner committed misconduct. If charge is proved, it may entail imposing appropriate punishment.
22. History is the moot spectator to violence against women and it is a world wide phenomenon. There are several international conventions condemning such violence and all the countries in the world are united in resolving in one voice the States' desire to ensure women assert their right to life of dignity, honour and self respect and resolved to take all measures to protect women from such violence and to penalise PNR,J WP 3680/2018 15 the offenders. In India also several measures are taken in this regard. However, violence against women is increasing. Harassment of women at workplace is also rampant. Alarmed by sexual harassment of women at workplaces and having noticed there is no law governing action against such harassment, in Vishaka Supreme Court laid down guidelines and norms to deal with such offences. Indian Parliament having realized the need to have an enactment to secure women from harassment at workplace promulgated 'the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013' (Act 14 of 2013).
23. One other area of greater concern is many fold increase in crime against children. Tragedy is, in many cases persons whom children trust, such as close relatives, family friends and teachers are indulging in such acts. Crime against a child is the most heinous of the crimes against the society. Having realised the necessity to ensure proper development of the child, that his/ her right to privacy and confidentiality is protected and respected by every person by all means and through all stages of a judicial process and that the law operates in a manner that the best interest and well being of the child are regarded as being paramount importance at every stage, to ensure healthy, physical, emotional, intellectual and social development of the child and to protect the children from offences of sexual assault and sexual harassment and to provide for establishment of Special Courts for trial of such offences, the Indian Parliament promulgated 'the Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012) (POCSO Act)' as amended in the year 2019. Section 2-J defines 'sexual harassment' assigning the same meaning as assigned to it in Section 11 of the Act. According to Section 11, a person is said to have committed PNR,J WP 3680/2018 16 sexual harassment upon a child when such person with sexual intent makes a gesture or exhibits any object or part of the body. According to the exception appended to this section any question which involves sexual intent shall be a question of fact. According to Section 12 whoever commits sexual harassment is punishable with imprisonment for a term which may extend to three years and shall also be liable to be fined. It is thus seen that Indian Parliament recognises the need to have statutory framework preventing sexual offence on children and in the event of committing offences to place the offender for trial before the Special Courts constituted for this purpose and to conduct trial expeditiously. Indian Parliament recognises the importance of giving protection to the child and to ensure that child progresses in a normal environment without fear or restrictions on child life and development of child's personality.
24. In the charge sheet filed by the police, police alleged that petitioner sexually assaulted and there was physical assault to the minor girl and outraged her modesty in the respondent school premises attracting penal consequences of Section 354-A of IPC and Section 12 of POCSO Act. In the Criminal case, if the petitioner is found guilty of the charge levelled against him, he would be punished under Section 12 of the POCSO Act, which may result in imprisonment for three years. Conducting of trial and finding the accused guilty in criminal case is based on principle of proof beyond reasonable doubt as distinct from disciplinary proceedings, where theory of preponderance of probabilities would apply to hold an employee guilty of charge levelled against him.
25. On comparison of charges in domestic enquiry with criminal case, it is apparent that the allegations made against the petitioner in the PNR,J WP 3680/2018 17 domestic enquiry and criminal case are not same, though, the background for initiation of disciplinary action and criminal proceedings is the incident involving the girl student in the respondent institution. The result of criminal prosecution and disciplinary action are also different. In criminal case if charge is proved, it is committing crime against society whereas, in disciplinary proceedings, if charge is proved, it would be loss of trust and confidence of employer and entail imposing one of the enumerated punishments.
26. It is appropriate to note that mere acquittal in criminal case does not absolve an employee from disciplinary action. Irrespective of the findings recorded by the competent criminal Court on the charge levelled against him, the disciplinary authority is entitled to proceed against employee to assess the conduct of the petitioner in dealing with the girl student studying in the institution where he was working as Principal and if the disciplinary authority comes to conclusion that by his conduct, he has violated the Conduct Rules, and thereby lost the confidence of the employer, it can take appropriate disciplinary action as warranted by law including termination of service.
26.1. At this stage, it is useful to note observations of Hon'ble Supreme Court in Ajit Kumar Nag Vs. Indian Oil Corporation12. Supreme Court held as under:
11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different.
They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden 12 (2005) 7 SCC 764 PNR,J WP 3680/2018 18 of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused "beyond reasonable doubt", he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of "preponderance of probability". Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside."
27. What is of utmost importance to note is, the incident occurred within the precincts of an educational institution where young girls prosecute their education, many of whom are adolescents. At this stage of their life, any ill treatment/ misbehaviour would disturb them mentally, would effect their education and health. They would be subjected to lot of agony and humiliation. The invisible scar would stare at them for the rest of their life. At that age, many students suffer in silence and do not even share the incidents with other students and even with their parents. Thus, consequences are more grave. Parents would be careful in sending their daughters to a school. They would be doubly confident when they get admission into a school run by the respondent society. Thus, lot is at stake for the respondent society when such issues crop up. The Principal/ Head Master of such institution must be a pious man with greater concern and compassion towards all students, with emphasis on girl students and should ensure that no teacher or student would behave indecently with them and make them uncomfortable in the school. He should be a guardian to look after the students, make them comfortable in the school and would ensure they reach home safely. Thus, if a person who is supposed to be a guardian himself turns out to be a devil, the agony of the girl students and their parents would multiply and the reputation of the institute nose dives to the bottom of deep sea.
28. The principal has greater responsibility to enforce discipline among the staff and students. It is his first and foremost concern to PNR,J WP 3680/2018 19 ensure safety and security of girl students. He should stand as a model to others and make students comfortable. In the domestic enquiry the competent authority is alleging that petitioner failed the employer on the confidence reposed in him and by his conduct brought disrepute to the Society. Thus, what is required to be seen in the departmental proceedings is whether behaviour of petitioner was objectionable and would amount to misconduct. This examination is on the perspective of breach of trust and confidence of employer on employee and does not concern the crime alleged against him. Thus, when issue of sexual harassment is brought before the management, more so against the Principal, it is but its primary responsibility to act with firmness and swiftly.
29. At this stage, it is necessary to consider whether petitioner has made out a case for interference by this Court. The pleadings in the affidavit filed in support of writ petition are vague. It is not asserted as to how prejudice would be caused to him in criminal case if domestic enquiry is conducted and what are the complicated questions of law and facts. It is not stated how his defense in criminal case would affect if school management relies on material in their possession and by examining the witnesses. Thus, petitioner failed in discharging his burden to pray for stalling departmental proceedings. As noted above, in criminal case, prosecution has to prove with clear evidence that by his actions petitioner has committed offence under IPC and POCSO Act. In the domestic enquiry employer can consider circumstances in which alleged incident happened to hold against employee. Further, the alleged incident occurred on 24.11.2017 and proceedings are not concluded even after two years. As observed by the Supreme Court in Apparel Export Promotion Council, whenever allegations of sexual harassment PNR,J WP 3680/2018 20 are made the disciplinary proceedings should be concluded expeditiously.
30. Further, in criminal case, having regard to allegations leveled against petitioner, there is no complicated question of law involved. Similarly, facts are also not complicated as sought to be contended.
31. It is also appropriate to note that conducting of trial, is likely to take considerable time. As per the directions of the High Court on administrative side, Sessions Courts/ Judicial First Class Magistrates are required to assign high priority to cases which are pending for more than 5 years. Though, cases under POCSO Act are now assigned to Special Courts and require expeditious disposal but still commencement and conclusion of trial would take considerable time. There is dearth of judicial officers. The criminal case is of the year 2019 and thus, it may take considerable time for the trial Court to commence and conclude the trial. As consistently held by Apex Court and this Court, it is not desirable to keep the disciplinary proceedings pending for long time and should be concluded expeditiously, more so, as allegations in Departmental proceedings concern sexual harassment of girl student, it is in the interest of respondent Society, the parents of the students, students of the school as well as petitioner to conclude the disciplinary proceedings expeditiously. As this writ petition is pending for more than two years, there is no progress in the disciplinary proceedings.
32. In the above analysis and in the facts of this case, it is neither advisable nor desirable to differ holding disciplinary action. Petitioner is not entitled to stall the disciplinary proceedings further, merely on the ground that criminal case is pending against him. The Writ Petition is dismissed. Petitioner shall cooperate in early conclusion PNR,J WP 3680/2018 21 of disciplinary proceedings. It is made clear that there is no expression of opinion on merits and the defense of petitioner in departmental proceedings and in criminal case is preserved. It is open to petitioner to set up defense as available in law in the domestic enquiry. Miscellaneous petitions, if any pending stand dismissed.
33.1. Before parting with this case, it is necessary to note that in the First Information Report, Remand Report and apparently in the Charge Sheet, police mentioned names of parents and victim girl. This shows insensibility of the police and blatant violation of law. Such acts offend the rights of child victim. Police cannot be ignorant of statutory requirement. They are reminded of the mandate of Section 228-A of IPC, scheme of the POCSO Act and with particular reference to Section 24(5) and Section 33(7) and the judgment of Hon'ble Supreme Court in Nipun Saxena Vs Union of India13.
33.2. Disturbed by the manner in which victim of sexual abuse is treated by media and so called elders of the society in Nipun Saxena, Supreme Court observed as under and issued directions.
"4. Unfortunately, in our society, the victim of a sexual offence, especially a victim of rape, is treated worse than the perpetrator of the crime. The victim is innocent. She has been subjected to forcible sexual abuse. However, for no fault of the victim, society instead of empathising with the victim, starts treating her as an "untouchable". A victim of rape is treated like a "pariah" and ostracised from society. Many times, even her family refuses to accept her back into their fold. The harsh reality is that many times cases of rape do not even get reported because of the false notions of so-called "honour" which the family of the victim wants to uphold. The matter does not end here. Even after a case is lodged and FIR recorded, the police, more often than not, question the victim like an accused. If the victim is a young girl who has been dating and going around with a boy, she is asked in intimidating terms as to why she was dating a boy. The victim's first brush with justice is an unpleasant one where she is made to feel that she is at fault; she is the cause of the crime.
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30. A minor who is subjected to sexual abuse needs to be protected even more than a major victim because a major victim being an adult may still be able to withstand the social ostracisation and mental harassment meted out by society, but a minor victim will find it difficult to do so. Most crimes against minor victims are not even reported as very often, the perpetrator of the crime is a member of the family of the victim or a close friend. Efforts are made to hush up the crime. It is now recognised that a child needs extra protection. India is a signatory to the United Nations Convention on the Rights of Child, 1989 and Parliament thought it fit to enact POCSO in the year 2012, which specifically deals 13 (2019) 2 SCC 703 PNR,J WP 3680/2018 22 with sexual offences against all children. The Act is gender neutral and whatever we say in this part will apply to all children.
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50. In view of the aforesaid discussion, we issue the following directions:
50.1. No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.
50.2. In cases where the victim is dead or of unsound mind the name of the victim or her identity should not be disclosed even under the authorisation of the next of kin, unless circumstances justifying the disclosure of her identity exist, which shall be decided by the competent authority, which at present is the Sessions Judge.
50.3. FIRs relating to offences under Sections 376, 376-A, 376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB or 376-E IPC and the offences under POCSO shall not be put in the public domain.
50.4. In case a victim files an appeal under Section 372 CrPC, it is not necessary for the victim to disclose his/her identity and the appeal shall be dealt with in the manner laid down by law.
50.5. The police officials should keep all the documents in which the name of the victim is disclosed, as far as possible, in a sealed cover and replace these documents by identical documents in which the name of the victim is removed in all records which may be scrutinised in the public domain.
50.6. All the authorities to which the name of the victim is disclosed by the investigating agency or the court are also duty-bound to keep the name and identity of the victim secret and not disclose it in any manner except in the report which should only be sent in a sealed cover to the investigating agency or the court.
50.7. An application by the next of kin to authorise disclosure of identity of a dead victim or of a victim of unsound mind under Section 228-A(2)(c) IPC should be made only to the Sessions Judge concerned until the Government acts under Section 228-A(1)(c) and lays down criteria as per our directions for identifying such social welfare institutions or organisations.
50.8. In case of minor victims under POCSO, disclosure of their identity can only be permitted by the Special Court, if such disclosure is in the interest of the child.
50.9. All the States/Union Territories are requested to set up at least one "One-
Stop Centre" in every district within one year from today.
(emphasis supplied) 33.3. The Director General of Police, shall ensure that strict instructions are issued to all the police stations / investigating officers not to refer to the name of the victim and their parents while registering the crime and in remand report and while filing the charge sheet. Whenever crime is reported on committing of offence under Sections 376, 376-A, 376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB or 376-E of IPC and offences under POCSO Act, registering of crime should not be put in public domain. It may be open to the police to put all the details in a sealed cover and place the same before the Special Court as directed by PNR,J WP 3680/2018 23 the Supreme Court in Nipun Saxena and that the directions of Supreme Court are strictly complied.
33.4. Similarly, in the charge sheet, imputations to charge memo and in the counter affidavit, the respondent-school management extensively refers to the name of the victim girl and her parents. This shows the insensibility of the school management to privacy of the girl student and her parents. The directions of the Supreme Court in Nipun Saxena are equally applicable to establishments when they deal with sexual harassment. The respondent-school management is warned to be careful in future whenever such incidents take place and not to disclose the name of the child and the parents. The personal details of the student should be kept in a sealed cover.
33.5. Having regard to the seriousness of the issue, the Chief Secretary is requested to take note of the observations and directions of Hon'ble Supreme Court in Nipun Saxena and shall formulate guidelines in this regard and notify to all establishments, specially to managements of schools and colleges and to print and electronic media to scrupulously comply with the directions of Hon'ble Supreme Court.
33.6. The Registry is directed not to print the full cause title of the case in the judgment. Instead, it shall show only name of the petitioner and respondent as Union of India.
__________________________ JUSTICE P.NAVEEN RAO Date: 04-05-2020 Tvk Note:
1) To mark L R Copy--Yes
2) Mark copy of this order to
a) Chief Secretary, State of Telangana.
b) Director General of Police, State of Telangana.
PNR,J WP 3680/2018 24 THE HONOURABLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION NO.3680 of 2018 DATE: 04.05.2020 tvk