Madras High Court
Srinivas Rajan vs The Director Of Matriculation Schools on 7 April, 2011
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.04.2011
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.NO.2116 of 2011
and
M.P.No.1 of 2011
Srinivas Rajan .. Petitioner
Vs.
1.The Director of Matriculation Schools
Office of the Directorate of Matriculation schools,
DPI Complex,
College Road,
Chennai-600 006.
2.The Child Right Commission,
Bal Raksha Bharat, 3rd Floor,
Vardhaman Trade Centre,
9-10-11, Nehru Place,
New Delhi-110 019.
3.The Correspondent,
Don Bosco Matriculation Higher Secondary
School,
No.30, Casa Major Road,
Egmore, Chennai-600 008
4.The Principal,
Don Bosco Matriculation Higher Secondary
School,
No.30, Casa Major Road,
Egmore, Chennai-600 008.
5.Tharmen Fernandez .. Respondents
This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the second respondent herein to take action against the fifth respondent for violation of child right based on the complaint dated 25.1.2011.
For Petitioner : Mr.N.L.Rajah
For Respondents : Mr.A.Suresh, GA for R-1
Mr.A.Immanuel for RR3 and 4
Mr.M.Venkatachalapathy, SC
for Mr.Ramesh Venkatachalapathy for R-5
- - - -
ORDER
This writ petition came to be posted on being specially ordered by the Hon'ble Chief Justice vide order, dated 17.3.2011. The writ petition is filed by the father of Master R.Sudarshan, a student studying in 9th standard 'C' Section in the third and fourth respondents' school. The relief sought for by him in the writ petition is for a direction to the second respondent, i.e., Child Rights Commission constituted under the Central Act 4/2006, i.e., The Commissions for Protection of Child Rights Act, 2005, to take action against the fifth respondent for violation of the child rights based on the complaint made by him, dated 25.1.2011 and to pass appropriate orders.
2.When the writ petition came up on 31.1.2011, this court directed private notice to be issued to the private respondents. In respect of the first respondent, the learned Government Advocate took notice.
3.Heard the arguments of Mr.N.L.Raja, learned counsel appearing for the petitioner, Mr.A.Suresh, learned Government Advocate taking notice for the Government, Mr.A.Immanuel, learned counsel appearing for third and fourth respondents and Mr.M.Venkatachalapathy, learned Senior Counsel leading Mr.Ramesh Venkatachalapathy, learned counsel appearing for the fifth respondent.
I.A Parent's knock on the door :
4.The petitioner herein being the father of a student in the third respondent school, sent a complaint, dated 01.12.2010 to the third respondent with a copy marked to the fourth respondent seeking for taking a strict action against the fifth respondent. It was stated that the fifth respondent was creating problems and was behaving badly with the students and that the children's future were at stake. It was also stated that the children in the school including the petitioner's son were sent to the school only to learn good morals and virtues. But the fifth respondent used abusive language and behaved in an intolerable manner. It was stated that he may be having some psychological problems. The fifth respondent was behaving badly with the students. He used abusive and foul language in the classes and made derogatory remarks about all religions. In the said complaint, an incident that took place on 26.11.2010 was also referred to. It is unnecessary to deal with details of the complaint at this juncture.
5.It is suffice to state that the same petitioner had earlier filed a writ petition being W.P.No.28828 of 2010 seeking for a direction to the respondents to take action on his complaint. In that writ petition, apart from the Director and Inspector of Matriculation Schools, the fourth respondent Principal was also a party. This court without going into the merits of the case, by an order, dated 23.12.2010 disposed of the writ petition. It had directed the Principal (R-4) to take action on the complaint given by the petitioner, dated 01.12.2010 within a period of four weeks. A copy of the order was forwarded by the petitioner to the third and fourth respondents. The third respondent was also informed the fact that the petitioner's son was refusing to go to the school as he was upset by the language used by his Master (R-5). When the petitioner did not find any action, he also sent a complaint to the second respondent, Child Rights Commission setting forth these facts for an appropriate action. It is now claimed that since the earlier direction, dated 23.12.2010 was given against the Principal without issuing notice, a review application (defective stage) is also pending. But, however no orders were passed in the said review application.
6.In the meanwhile, when the matter came up on 4.2.2011, this Court passed the following interim order:
"After hearing the learned counsel appearing on both sides, including Mr.V.Selvaraj, Appearing for R5, this Court felt that appointment of a learned Senior Advocate of this Court to conduct a preliminary enquiry about R5 teacher would enable this Court to decide about further course.
According, b consent of all the parties concerned Mr.V.Prakash, learned Senior Counsel is appointed as Advocate Commissioner to conduct a preliminary enquiry with regard to R5 and the report of the enquiry shall be produced before this Court on 8.2.2011.
The management of the school is directed to give necessary assistance to the learned senior counsel to complete the process.
Post on 8.2.2011."
7.But, however, as directed by this court, no report by the Advocate Commissioner was filed before that date. There was nothing on record to show that this court had granted any extension of time. In the meanwhile, when the matter came up before the learned Judge on 11.3.2011, the learned Judge directed the matter to be posted before some other Court after getting orders from the Hon'ble Chief Justice. Thus the matter came to be posted before this Court. Subsequently, when the matter was listed on 21.3.2011, this Court having found that the respondents 3 to 5 have not filed any counter affidavit directed them to file counter affidavits.
8.The learned Advocate Commissioner who was present in the Court was enquired as to why the report was not filed before this court as directed by the learned Judge who had appointed him as the Commissioner. On 23.3.2011, the Commissioner had filed the following memo along with enclosures with the Registry:
"The undersigned was appointed as the Advocate Commission in the above Writ proceedings and given time till 08.02.2011 to file the report. It is submitted that inspite of best efforts, as the number of people interviewed were many and I had to go through the video recordings and analyse the same, it took considerable time. Further this was mentioned to the learned Judge who was then hearing the matter and before whom the case was posted after 08.02.2011, who permitted extension by adjourning the matter, though no formal order of extension was recorded.
The commission is filing the Report with Annexures, with Transcripts and the Videograph of 19 DVDs with dates of interviews written on same and also the list of persons interviewed, and the dates of their interview in a sealed cover to the Registrar (WRIT). Memo of Expenditure for Videography and Stenography is enclosed.
It is therefore, prayed that this Hon'ble Court may be pleased to extend the time upto 23.03.2011, viz., today for submission of the report."
II.The School's Response :
9.When the matter came up on 25.3.2011, on behalf of the third and fourth respondents, a common counter affidavit was filed, but sworn to only by the third respondent. In the counter affidavit in paragraphs 3 to 5, it was averred as follows:
"3.The petitioner along with three other parents of students of Standard IX C submitted a complaint to the third and fourth respondents on 01.12.2010 wherein they alleged that Mr.Tharmen Fernandez, a teacher in third respondent school allegedly involved in some unwanted conversation with the student namely Karthick Annigeri during class hours on 26.11.2010. On enquiry it was found not true because Mr.Tharmen Fernandez did not attend class IX C on 26.11.2010.
4.I submit that meanwhile, the petitioner filed a writ petition No.28828 of 2010 seeking a writ of mandamus to the first respondent to take action against the third respondent school allegedly for not taking action on the complaint of the petition dated 01.12.2010. The fourth respondent conducted preliminary enquiry and submitted preliminary report to the third respondent. Before the third respondent could initiate action as per law on the preliminary report submitted by the fourth respondent, the petitioner filed the above writ petition and this Honourable Court appointed an Advocate Commissioner to conduct a preliminary enquiry with regard to fifth respondent and submit report to this Honourable Court. As the learned advocate commissioner conducted in camera enquiry proceedings in the school premises wherein students, staff and parents deposed in camera and the same has been videpgraphed. Hence, Parallel enquiry was not conducted by the third respondent awaiting the copy of the report of the learned Advocate Commissioner.
5.The third respondent submits that appropriate action will be taken by the third respondent in accordance with law on the basis of the report to be submitted by the learned Advocate Commissioner." (Emphasis added)
10.The fifth respondent after denying the specific allegations made against him, in paragraph 14 made allegations against the Principal of the School, who is the fourth respondent. In paragraph 16, he contended that since the school had not conducted any enquiry, the petitioner cannot invoke the extraordinary jurisdiction of this court. In paragraph 17, he also stated that the second respondent Child Rights Commission is only the Non Governmental Agency and not a real commission. He also reserved his liberty to file a detailed counter affidavit after the receipt of the enquiry report by the Senior Counsel.
11.In the consolidated typed set filed on behalf of the petitioner, several documents were enclosed including the letter, dated 28.1.2011 sent by the fourth respondent Principal to the third respondent Correspondent making serious charges against the fifth respondent. He had also stated that the complaint sent by the petitioner's father, dated 1.12.2010 was a true and genuine complaint and that the fifth respondent had not refuted and denied the allegations made in the complaint given on 19.1.2011. In his letter in pages 2 and 3, he had made the following allegations against the fifth respondent, which reads as follows:
"At the outset I have to point out that there is no reason for the students of tender age to make a complaint against the said Teacher Mr.Tarmon E.Fernandez. In other words there is no motive for students to come forward with the complaint against Mr.Tarmon E.Fernandez who is only one among the 40 teaching staff in the Higher Secondary School. It is seen from the writings given by the students that Mr.Tarmon E.Fernandez had been making derogatory remarks against his own colleague Mr.Nandagopal and his family members including his daughter. He is also making derogatory remarks against the lady teacher's by calling them 'Bitch'. He is also making derogatory remarks against the other students. Some of the students have complained that he is calling one of the co-teacher as a laughing jackass. It is seen from the complaint that the students are mentally disturbed and affected and did not want to attend school and the classes of Mr.Tarmon E.Fernandez. Since it is happening inside and outside the class room I see the problem as something severe and not related to one class but to the students of the school and the said teacher in general and so it is dangerous.
It is seen from the parents complaints that he is beating up the children, asking them to sit on the floor and during the exams he refused to give answer sheets to the students when he was invigilating and ask the students to pick up the paper which he had deliberately thrown on the floor.
It is seen from the complaints of the co-teachers that Mr.Tarmon E.Fernandez is abusing his position as a teacher and converting the class room as a platform to hold insulting abuses against some of the students, co-teacher including lady teachers and the institution.
One of the parents Mr.Srinvas Rajan has produced some of the Medical Test undergone by his son Sudarshan, as the result of the humiliation suffered in the hands of the concerned teacher. I have also received a subsequent letter from Mr.Srinivas Rajan on 13.1.2011 stating that Mr.Fernandez is using abusive language whenever he is passing on the corridor of the school and playground during the days after lodging the complaint to the Correspondent. He has also said that his son Sudarshan is mentally upset, disturbed by the language used by the teacher. I have also received a complaint on Mr.Tarmon E.Fernandez from 10 lady teachers on 6.1.2011 against Mr.Tarmon E.Fernandez making very serious allegations against him. It is disturbing to read the complaint that Fernandez used....... while speaking to the other persons. I was surprised and astonished to hear from the lady teachers the trauma they are undergoing because of Mr.Tarmon E.Fernandez behaviour. They say as teachers they are not able to fulfill their duties and their respect and dignity in front of their students is shattered. Lady teachers feel that such a behaviour from a co-staff member to demoralize them is affecting their career as teachers. Some allegations are also made against the teacher concerned as to how he waste his time during the school hours instead of usefully spending it in teaching the students.
As per the directions by the Hon'ble High Court, I called upon Mr.Tarmon E.Fernandez to submit an explanation on the complaints dated 1.12.2010 and also the subsequent complaints, by letter dated 19.1.2011. He was required to submit a reply within days on receipt of the letter. On 27.1.2011, he requested for more time and he has no explanation to offer on the complaints given to him. In order to avoid further legal proceedings on myself and this esteemed institution for not adhering to the directions of the Hon'ble High Court and for not acting on the complaints, I am submitting my report." (Emphasis added)
12.In page No.4 he had recommended the following action against fifth respondent, which reads as follows:
"Hence, Respected Fr.Rector and Correspondence, in view of the above, I strongly recommend that the teacher who has not been assigned teaching work on and from 9.12.2010 should be dealt with severely in the larger interests of the institution and in the interest of the students, parents and co-teachers including the lady teachers. The nature of the misconduct committed by the teacher is a serious one, warranting imposition of maximum punishment to the extent such incidences should not happen in the interest of the school."
In his report the Principal (R-4) also referred to a recent incident where the fifth respondent after applying for leave went for renewing his gun license. It was stated that he had got it renewed and also retaining his gun with him.
13.When the matter came up on 28.3.2011, an additional affidavit was filed by the petitioner making serious allegations against the fifth respondent including an allegation of a criminal complaint given against him which is pending with Choolaimedu F-5 Police Station, dated 21.2.2011 and the FIR in Veperi Police Station in Crime No.206 of 2011, dated 7.3.2011. A copy of the criminal complaint showed that threatening calls were received by some of the parents through SMS sent to their mobile numbers. It was informed that subsequent to the filing of the FIR, the fifth respondent has filed an anticipatory bail petition and that charges were also filed before an appropriate court. In support of the criminal complaint made against the fifth respondent, supporting affidavits were filed by M/s.S.Peter Joesph Irudayaraj and Jerome Dominic, who are the two teachers working in the school and who had received threatening calls for having deposed before the Advocate Commissioner.
14.In the additional affidavit filed by the petitioner, it was claimed that on 26.11.2010 during the class hours, the fifth respondent instead of teaching History, involved himself in conversation with students. Though the management had taken the stand that no History class was scheduled for standard 9-C on that day, it was claimed that the fifth respondent was teaching History for the standard 9-D. During the middle of the class hours, he walked out from his class seeing Karthick Annigeri who was walking towards his class, i.e., 9-C which class room was situated diagonally opposite to Class 9-D. He had picked up conversation with the student. Such incident was clearly narrated to the school authorities. It was rather unfortunate that the school authorities chose to deny the said event. The petitioner also took exception to the counsel for the third respondent informing this court that the Principal was the culprit and that he will be transferred out of the school.
15.To this additional affidavit, two counter affidavits were filed. One by the third and fourth respondents, dated 30.3.2011 and the another by the fifth respondent, dated 30.3.2011. In the counter affidavit filed on behalf of the third and fourth respondents, once again after controverting the allegations made by the petitioner, in paragraphs 3 and 4, the following undertaking was given and the same reads as follows:
"3....Hence, the school management is prepared to conduct a detailed enquiry in respect of this allegation by the petitioner against the fifth respondent.
4....I assure this Honourable Court that proper enquiry in accordance with law will be conducted into all the allegations made by the petitioner in his complaint as well as in his affidavit filed in the above writ petition, including alleged violation of child right and also about two criminal complaints alleged to have been filed against the fifth respondent by some teachers of our school."
16.With reference to the transfer of the fourth respondent Principal, it was stated that the South Indian Salesian Society is the Supreme authority in respect of the management and that the petitioner has no right to comment on the management.
III.The Teacher's response :
17.In the fifth respondent's counter affidavit, apart from denying the allegations made by the petitioner, it was stated that no doubt an FIR was pending investigation, but, no charge sheet was filed against him so far. It was stated that when actually the management was taking action and this court had ordered preliminary enquiry, there is no necessity to grant the prayer of the petitioner.
IV.Court Commissioner under Attack :
18.When the matter was listed on 30.3.2011, the counsel for the petitioner Mr.N.L.Rajah made serious allegations on the procedures adopted by the Advocate Commissioner and also impropriety of his videographing the deposition without any authority. However, this Court informed him that unless a proper affidavit was filed, this court cannot call for any remarks from the Advocate Commissioner and till such time, this court will not open the sealed cover submitted by the Advocate Commissioner along with his memo, dated 23.3.2010. Therefore, after the matter was adjourned to 1.4.2011, the petitioner had filed an affidavit sworn to on 30.3.2011.
19.In that affidavit, the following allegations were made against the Advocate Commissioner:-
"(a)The Commissioner did not submit his report within time as directed by this Court.
(b)He was not expected to conduct a roving enquiry, but was to submit a report on a preliminary enquiry.
(c)The manner in which the enquiry was conducted and the mode adopted by him lack impartiality and propriety.
(d)He had videographed the proceedings in which children who are minor were deposing and that the petitioner's son himself complained about facing camera. The children were cross examined by the Enquiry Officer.
(e)The Commissioner did not give notices to the counsel appearing for both sides while recording evidence of several witnesses.
(f)The Commissioner had gone to St. Bede's Higher Secondary School, met Fr.John Joseph and enquired about the complaint. This was also done without notice to the petitioner also.
(g)The Commissioner had several telephonic conversations with Rev.Fr.Provincial after completion of the enquiry and he had met him on 21.2.2011. This was also done without notice to the petitioner."
Therefore, they prayed for passing orders without reference to the report of the Advocate Commissioner and they requested for rejection of the report as he had misconducted himself and the proceedings conducted were vitiated.
20.In the meanwhile, arguments were heard on the main writ petition regarding its maintainability, desirability of a reference to R-2 as well as the nature of the order to be passed. After the submission of the allegations against the Advocate Commissioner on 1.4.2011, this Court directed the counsel for the petitioner to issue notice to the Commissioner and to serve a copy of the affidavit and also directed the Commissioner to file his remarks before this court before 5.4.2011.
21.Accordingly, the Advocate Commissioner had filed a reply affidavit, dated 5.4.2011. In the reply affidavit, he had stated that all parties have agreed for incamera proceedings. While the Stenographer was asked to take notes, the videograph was made to ensure accuracy. As per his notes, he proceeded with the preliminary enquiry incamera. He had also enquired only when there was a prima facie material in respect of fifth respondent and that the complaint given by the petitioner and three others dated 01.12.2010 was the subject matter of preliminary enquiry. During the preliminary enquiry, since he found out that there was no History class for 9-C by the fifth respondent, he decided to go deeper to find out if the said allegation made in the complaint could have happened. The motive attributed to him in this regard was without any substance. During videograph, no flash lights were used. He had submitted that if the videograph was viewed by this court, it will show that the children were very comfortable and very articulate. The members of Parents Teachers' Association were interviewed in connection with the motive attributed by the fifth respondent in respect of the complaint. While interviewing some students without parents' permission, they came voluntarily. The videograph recordings will show that fair procedure was adopted. Since the petitioner had relied upon the statement of Rev.Fr.John Joseph to substantiate his complaint, the Commissioner thought it fit that it will throw some light on the subject. He did not rely upon his interview as Rev.Fr. John Joseph pleaded confidentiality and that he is related to the petitioner's wife. The counsel for respondents 3 and 4 Mr.Immanuel sounded the Commissioner whether he was willing to talk to Rev. Fr.Provincial if he would call him. He did not find any harm or injustice in talking to Rev.Fr. Provincial.
22.The third respondent volunteered to file an additional counter affidavit to support the stand of the Advocate Commissioner, stating that with the oral consent of parties, incamera proceedings were conducted and videograph was made. This averment made in paragraph 2 is not even the case pleaded by the Advocate Commissioner. Nowhere the Advocate Commissioner had stated that he took consent of parties for videographing the deposition of children. With reference to meeting of Rev.Fr. Provincial, the allegation that the Commissioner had several rounds of talks after completion of the enquiry was not true. Rev.Fr. Provincial with the knowledge of the counsel for the third respondent had wanted to know from the Advocate Commissioner as to when his report will be submitted. This averment of the third respondent is quite contradictory to the statement by the Advocate Commissioner. He himself had not denied the allegations made against him by the petitioner.
23.Finally, the third respondent had requested a copy of the Commissioner's report along with CDs to file objections by third and fourth respondents. In the earliest affidavit, they were willing to abide by the Commissioner's report for taking action. After seeing the objections made against the Advocate Commissioner, they reserved their right to file an objection on the report.
24.This Court had also asked the Advocate Commissioner in the open court on 5.4.2011 whether the Advocate Commissioner gave notice to both side counsels before he interviewed Rev.Fr. Provincial, Rev.Fr. John Joseph (former Correspondent), Rev.Ft.Rector and Rev.Fr.Principal. The Commissioner had replied in the negative. Likewise, when the Commissioner was asked whether he took permission from this court for videogrphing the children's evidence, he once again replied in the negative. As to whether any of the guardians of the children were allowed to be present during videograph, the Commissioner once again replied in negative. When he was further asked whether his meeting with Rev.Fr. Provincial was recorded in his report, he again fairly stated that he did not record the interview of Rev. Fr. Provincia.
V.Commission's omissions :
25.In view of the above, before going into the merits of the case, this court decided to reject the report of the Advocate Commissioner as he had gone beyond the terms of his warrant and the discharge of his duties was not done properly. It is necessary to record the following findings on the procedure adopted by the Advocate Commissioner:
a)He had not submitted the report within the time frame given by this court.
b)He had not conducted any preliminary enquiry to submit his report by recording the submissions of the concerned persons. On the contrary, he had quizzed the children by an inquisitorial enquiry.
c)He had interviewed persons without notice to counsel for both sides.
d)Though the Commissioner had stated that he had conducted incamera proceedings, but the proceedings were conducted in the absence of counsels for both sides.
e)The statement made by the Commissioner in his interview with Rev.Fr. Rector clearly showed that the Commissioner had misunderstood his role rather than being an instrument of this court for getting materials, he had undertaken the job of a troubleshooter.
f)Serious complaints made by teachers against the fifth respondent clearly bordering on sexual harassment were overlooked by the Commissioner in his report by stating that it is beyond the scope of warrant issued to him. But yet at the same time, while examining Rev.Fr.Rector, the Enquiry Officer had made all kinds of statements as can be seen below:
"EO:-I am going to make recommendations. My own project is one of healing process. Assuming for a minute, I give against this teacher then he leaves, is this institution going to be happy. Similarly I can say that parents who gave complaint I said vindictive, is children going to be happy. It is most important for the welfare of the Institution."
g)He unnecessarily enquired one Rev.Fr.John Joseph who was no longer in school and was residing at St. Bede's School, Santhome and that who was earlier the Correspondent between 1975 to 1980. The enquiry officer had made the following questions:
"EO:...When the matter came up before the High Court, the High Court asked me to do a preliminary enquiry into the matter. This is strictly confidential. The main thing is that I have asked lot of questions to students and teachers. Did Tormon met you at any time, What did you tell about this? Rajan married Josephine now her name is Sneha Raja. Your name came up during the course of enquiry and Tormon said that he came here to meet you. I ask you some questions about the two issues. Had Mr.Tormon met on any day"
But he had discarded the answers given by Rev.Fr.John Joseph on the ground he expressed confidentiality of his conversation and that he was related to the wife of the writ petitioner.
h)He had also not recorded in his report about his meeting with Rev.Fr. Provincial. This seriously vitiates the procedures adopted by him.
i)When the parties were at loggerheads before this court, he should not have met the head of the respondent institution and superior authority to the third and fourth respondents herein. Further, he had not disclosed to this court the nature of the interview or discussions that he had with Rev.Fr.Provincial.
j)While videpgrphing the questions and answers from the students, he had failed to protect the interest of the children and did not allow the child's guardian to be present in the enquiry. On the one hand, he had stated that he enquired only about the complaint against the fifth respondent, dated 1.12.2010, but on the other hand, he went on a roving enquiry and questioned even the teachers. Having found that teachers have made serious allegations against fifth respondent, he had quietly discarded the statement made by the teachers.
k)All that the Advocate Commissioner was expected to do was to visit the school and record the statement either in long handwriting or taken on short hand and got it transcribed and compiled those statements and must have presented the same to the Court. In that event, the court would have formed an opinion on the matter. On the other hand, he had not only given findings in respect of each issue, but even suggested that the administration warning will be a sufficient punishment to the fifth respondent.
VI.Child requires protection :
26.As to how a child witness should be enquired by Courts came to be considered by the Supreme Court in Sakshi Vs. Union of India reported in (2004) 5 SCC 518. The following passages found in paragraphs 27(1) and 28 may be usefully reproduced below:
"27.The other aspect which has been highlighted and needs consideration relates to providing protection to a victim of sexual abuse at the time of recording his statement in court. The main suggestions made by the petitioner are for incorporating special provisions in child sexual abuse cases to the following effect:
(i) Permitting use of a videotaped interview of the childs statement by the judge (in the presence of a child-support person).
........
28.The Law Commission, in its response, did not accept the said request in view of Section 273 CrPC as in its opinion the principle of the said section which is founded upon natural justice, cannot be done away with in trials and inquiries concerning sexual offences. The Commission, however, observed that in an appropriate case it may be open to the prosecution to request the court to provide a screen in such a manner that the victim does not see the accused while at the same time provide an opportunity to the accused to listen to the testimony of the victim and give appropriate instructions to his counsel for an effective cross-examination. The Law Commission suggested that with a view to allay any apprehensions on this score, a proviso can be placed above the Explanation to Section 273 of the Criminal Procedure Code to the following effect:
Provided that where the evidence of a person below sixteen years who is alleged to have been subjected to sexual assault or any other sexual offence, is to be recorded, the court may take appropriate measures to ensure that such person is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused.
27.Further a division bench of this court had also given series of directions with reference to recording of child witness in a suo motu writ petition in W.P.No.36807 of 2006, dated 31.10.2006 in Director, Tamil Nadu State Judicial Academy, Chennai Vs.STate of Tamil Nadu and others. That was given in the context that the victim is a child and set out basic principles therein as pointed out by the Supreme Court in Sakshi's case (cited supra). This court wile giving series of directions relating to child witness in the division bench judgment had referred to several expert committee's report in this regard. In fact one such Expert Committee had stated as follows:
"The prosecutor may apply at any time for an order that a child's testimony at a preliminary hearing, in addition to being steno graphically recorded, be videotaped."
VII.Report to be under wraps :
28.In view of the above, there is no option for this court except to reject the report submitted by him and also the minutes recorded as well as videographs presented by him. The Registry is hereby directed to keep the entire records in a sealed cover unless permitted or ordered by this Court to be given to parties. This is especially in view of the sensitive nature of the issue and that the reveal of the report along with the minutes may result in victimisation of individuals. If the report of the Commissioner is rejected, then the question will have to be raised for consideration is as to what relief can be given to the parties.
VIII.Is Child Rights Commission a toothless Tiger?
29.Mr.M.Venkatachalapathy, learned Senior Counsel appearing for fifth respondent submitted that the complaint made by the petitioner will not come within the province of the Commission for Protection of Child Rights Act, 2005. Therefore, there was no necessity to issue a direction to the Commission to make an enquiry on the same. But this contention of the learned Senior Counsel was erroneous since the term "child rights" is defined on broad terms under Section 2(b) of the Act which reads as follows:
"(b)"child rights" includes the children's rights adopted in the United Nations convention on the Rights of the Child on 20th November, 1989 and ratified by the Government of India on the 11th December, 1992;"
30.As can be seen from the said definition, the Convention of Rights of the Child, dated 20.11.1989 is valid and the Commission has power to enquire into such a complaint and even can take a suo motu notice on the matter relating to deprivation and violation of child rights, non implementation of law providing for protection and development of children, non compliance of policy decisions, guidelines or instructions aimed at mitigating hardships to and ensuring welfare of the children and to provide relief to such children or take up the issues arising out of such matters with appropriate authorities. For deciding these matters, the Commission has been empowered with the power of a Civil Court under Section 14.
31.Under Section 15, the Commission can take up the following steps after completion of the enquiry. The first step is that on disclosing, the Commission of violation of child rights of a serious nature or contravention of provisions of any law for the time being in force, can recommend the concerned Government or the Authority to initiate proceedings for prosecution or such other action which the Commission may deem fit against concerned persons. The second step is to approach the Supreme Court or the High Court concerned for such direction, order or writ as the Court may deem it necessary. The third step is to recommend to the concerned Government or authority for grant of such interim relief to the victim or member of the family as the Commission may consider necessary.
32.Since the definition of child rights found in Section 2(b) referred to United Nations Convention, dated 20.11.1989, it is necessary to refer to relevant articles from that Convention. Article 16 of the Convention reads as follows:
Article 16
1.No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.
2.The child has the right to the protection of the law against such interference or attacks."
Article 28(2) reads as follows:
"2.States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention."
33.Therefore, it cannot be said that the Commission has no right to enquire into the complaint sent by the petitioner. But, at the same time, it has to be seen whether any immediate purpose will be served by making such direction. Though the Commission has power of the Civil Court for making an enquiry, but after any report made by the Commission, Section 15 sets out the steps the Commission can make to implement its report as noted already. The Commission by itself cannot direct its order to be obeyed by any authority and that either it requires further steps to be taken by the concerned Government or by the Court. In this context, it will be worthwhile to note an interpretation made by the Supreme Court regarding the powers of the National Commission for SC/ST constituted under Article 338 of the Constitution.
34.The question arose whether the Commission which has the power of a Civil Court can order stopping of the promotion process initiated by a Nationalised Bank on the ground that it did not satisfy the constitutional requirements. In that context, the Supreme Court vide its judgment in All India Indian Overseas Bank SC ad ST Employees' Welfare Association and others Vs. Union of India and others reported on (1996) 6 SCC 606 framed the following question as found in paragraph 3, which reads as follows:
"3.The short question that arises for consideration in this matter is whether the Commission had the power to issue a direction in the nature of an interim injunction?..."
In paragraphs 10 and 11, the following answers were given by the Supreme Court, which reads as follows:
"10.Interestingly, here, in clause (8) of Article 338, the words used are the Commission shall ... have all the powers of the Civil Court trying a suit. But the words all the powers of a Civil Court have to be exercised while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause 5. All the procedural powers of a civil court are given to the Commission for the purpose of investigating and inquiring into these matters and that too for that limited purpose only. The powers of a civil court of granting injunctions, temporary or permanent, do not inhere in the Commission nor can such a power be inferred or derived from a reading of clause (8) of Article 338 of the Constitution.
11.The Commission having not been specifically granted any power to issue interim injunctions, lacks the authority to issue an order of the type found in the letter dated 4-3-1993. The order itself being bad for want of jurisdiction, all other questions and considerations raised in the appeal are redundant. The High Court was justified in taking the view it did. The appeal is dismissed. No costs."
35.Therefore, if it is seen in the context of the above judgment, if any direction was given as prayed for by the petitioner, ultimately he may not get any relief except highlighting the grievances projected by him on behalf of his ward in a national forum.
36.The counsel for the school management himself was not willing to have the matter referred to the Commission for Child Rights (R-2). On the other hand, in the common counter affidavit, dated 24.3.2011, it was stated that it will abide by the report of the Commissioner. But, this was even before the report of the Advocate Commissioner was made known or submitted to the Court. However, with wiser counsel prevails, in the additional affidavit submitted on 30.3.2011, they had assured for conducting a proper and detailed enquiry as noted above.
IX.Moulding the Relief :
37.Since the matters have been brought before this court and considering the serious nature of allegations made against the fifth respondent and also the willingness of the school management to conduct a detailed enquiry, this Court has decided to give certain directions on the basis of the following prima facie findings.
38.As to whether this Court can mould a relief in a petition under Article 226 though not asked by a petitioner came to be considered by the Supreme Court in LIC of India v. Consumer Education & Research Centre, (1995) 5 SCC 482. It is necessary to extract the following passage found in paragraph 29 which is as follows:
"29..... The arms of the High Court are not shackled with technical rules or procedure. The actions of the State, its instrumentality, any public authority or person whose actions bear insignia of public law element or public character are amenable to judicial review and the validity of such an action would be tested on the anvil of Article 14. While exercising the power under Article 226 the Court would be circumspect to adjudicate the disputes arising out of the contract depending on the facts and circumstances in a given case. The distinction between the public law remedy and private law field cannot be demarcated with precision. Each case has to be examined on its own facts and circumstances to find out the nature of the activity or scope and nature of the controversy. The distinction between public law and private law remedy is now narrowed down. The actions of the appellants bear public character with an imprint of public interest element in their offers regarding terms and conditions mentioned in the appropriate table inviting the public to enter into contract of life insurance. It is not a pure and simple private law dispute without any insignia of public element....."
39.The third respondent himself was willing to conduct an enquiry in respect of the allegations made against the fifth respondent. The Commissioner had collected 33 documents and only photocopies were enclosed, thereby indicating the originals were available with the School. The nature of the complaint made against the fifth respondent can be broadly classified into two heads. The first relating to his conduct of misbehaving with the school children which was not expected of a teacher of a school. The school is admittedly a Matriculation School coming under the control of the first respondent Director of Matriculation Schools and is governed by the Code of Regulations of Matriculation Schools. The Principal of the School, (the fourth respondent) under Regulation 27 is completely in-charge of discipline of students of the school. With reference to disciplinary action against a teacher, it is the management of the school, which has the power to inflict punishment on a teacher for willful negligence of duty, serious misconduct, grave insubordination and mental unfitness. Regulation No.20 deals with the procedure for inflicting a major punishment, which is as follows:
"Subject to the proviso given below:-
(i)The school authority shall not terminate the services of the said teacher or a member of non teaching staff whether summarily or otherwise without informing him in writing of the grounds on which they intend to take action and giving him/her what in their view is a reasonable opportunity for stating his/her case in writing and before coming to a final decision, shall/duly consider his/her statement and if he/she so desires give him/her a personal hearing or conduct an enquiry.
(ii)After the conduct of the personal hearing or enquiry by the management a notice will be issued to him/her setting out the proposed punishment and he/she shall be given a reasonable time to defend himself/herself against the proposed punishment."
X.Pivotal Role of the Principal :
40.The School respondent school is admittedly a minority school having protection of Article 30(1) of the Constitution. The role of the Principal in such institution cannot be minimized. The Supreme Court vide its judgment in N.Ammad Vs. Emjay High School reported in (1998) 6 SCC 674 had held in paragraph 18 as follows:
"18.Selection and appointment of Headmaster in a school (or Principal of a college) are of prime importance in administration of that educational institution. The Headmaster is the key post in the running of the school. He is the hub on which all the spokes of the school are set around whom they rotate to generate result. A school is personified through its Headmaster and he is the focal point on which outsiders look at the school. A bad Headmaster can spoil the entire institution, an efficient and honest Headmaster can improve it by leaps and bounds. The functional efficacy of a school very much depends upon the efficiency and dedication of its Headmaster. This pristine precept remains unchanged despite many changes taking place in the structural patterns of education over the years."
41.In the present case, the fourth respondent on direction from this court by an order, dated 23.12.2010 in W.P.No.28828 of 2010, had enquired into the complaint made by the petitioner. But realizing his limitations in acting against the fifth respondent, the fourth respondent Principal had forwarded a detailed report to the third respondent not only finding a prima facie case in the complaint made by the students, but also about the complaints made by the women teachers. Therefore, it is inevitable for the third respondent to enquire into the allegations found in the report submitted by the fourth respondent.
42.In this case pursuant to the directions issued by this court, the Principal had sent a letter dated 28.01.2011 to the Correspondent. In that report noted already, he had found prima facie the fifth respondent was guilty of charges. He has also noted several other complaints against the fifth respondent. When that is a case, the third respondent instead of enquiring into the complaint, has filed a counter affidavit stating that the charges based on the complaint of the petitioner, dated 01.12.2010 was not made out. It was alleged that the Principal was incorrect in stating the same. It is not clear as to how the counter affidavit can be filed on behalf of respondents 3 and 4. When the report of the fourth respondent Principal is categorical, he ought to have filed a separate counter affidavit making his stand on this issue clear. It is not clear whether the said counter affidavit was shown to the fourth respondent before being filed into the court. No doubt respondents 3 and 4 belonged to the same society. But in respect of the allegations, their stand are at variance. They should have come up with separate counter affidavits. The fourth respondent Principal being a religious priest would not have made any false statement in sending his report, especially when this court had directed him to enquire into the complaint. Even the third respondent had chosen only to enquire into the complaint regarding the incident dated 26.11.2010 but had not cared to reply in respect of the other allegations made by the fourth respondent against the fifth respondent.
XI.Forgotten Vishaka Principles :
43.The Commissioner had referred to the complaint of lady staff of the school, dated 6.1.2011 given to the fourth respondent with reference to sexual harassment, the management cannot shut their eyes on the said allegations. It is a serious complaint made by the women teachers of the school against a fellow teacher working in the same school, i.e., fifth respondent. The fourth respondent had also found prima facie case of such harassment.
44.As to what constitutes sexual harassment in a working place and the steps to be taken by an employer came to be considered by the Supreme Court in Vishaka v. State of Rajasthan reported in (1997) 6 SCC 241, wherein the Supreme Court held in paragraphs 16 and 18 as follows:
16. In view of the above, and the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at workplaces, we lay down the guidelines and norms specified hereinafter for due observance at all workplaces or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasised that this would be treated as the law declared by this Court under Article 141 of the Constitution.
18. Accordingly, we direct that the above guidelines and norms would be strictly observed in all workplaces for the preservation and enforcement of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field. These writ petitions are disposed of, accordingly.
45.The said judgment came to be followed by a subsequent decision of the Supreme Court in D.S. Grewal v. Vimmi Joshi reported in (2009) 2 SCC 210. The following passages found in paragraphs 19,21 and 22 may be usefully extracted below:
19.....The legislature too has keeping in mind the abovenoted guidelines from Vishaka1 recently drafted the Protection of Women against Sexual Harassment at Workplace Bill, 2007. The Bill is to provide for the prevention and redressal of sexual harassment of women at workplace and for matters connected therewith or incidental thereto. The draft law provides for consideration of a mandatory committee to hear complaints of sexual harassment. It also stipulates the procedures for setting up of these committees. If the complaint is found to be true, the draft law provides for monetary compensation. It also stipulates a time period for completing the enquiry and for employers to take action against the accused. We are aware that the Bill has not till yet been enacted by Parliament. We cite the Bill only to show that the lawmakers too have accepted the directions and guidelines which had been laid down by this Court.
........
21. Vishaka1 has been followed in Apparel Export Promotion Council v. A.K. Chopra2 wherein a Division Bench of this Court inter alia held (SCC p.776, para 27) that in a case 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.
22. Before, however, a disciplinary proceeding is initiated in a case of this nature, a prima facie finding has to be arrived at as regards the role of the delinquent.
46.In fact the principles laid down in Vishaka's case came to be applied even in respect of a complaint made by the woman employee on 12.8.1988 working in Apparel Export Promotion council vide judgment in Apparel Export Promotion Council v. A.K. Chopra reported in (1999) 1 SCC 759. It is relevant to extract paragraphs 26 and 27 of the said judgment, which is as follows:
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.7; Mackinnon Mackenzie and Co. Ltd. v. Audrey D Costa8; Sheela Barse v. Secy., Childrens Aid Society9 SCC at p.54; Vishaka v. State of Rajasthan6; Peoples Union for Civil Liberties v. Union of India10 and D.K. Basu v. State of W.B.11 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.
47.It is useful to extract the following passages found in paragraph 17 of Vishaka's case ( cited supra) regarding the duties of an employer, the definition of sexual harassment and the types of Complaints Committee to be formed:-
"17......
1. Duty of the employer or other responsible persons in workplaces and other institutions:
It shall be the duty of the employer or other responsible persons in workplaces or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
2. Definition:
For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
(a) physical contact and advances;
(b) a demand or request for sexual favours;
(c) sexually-coloured remarks;
(d) showing pornography;
(e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
7. Complaints Committee:
The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.
The Complaints Committee should be headed by a woman and not less than half of its members should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the Government Department concerned of the complaints and action taken by them.
The employers and person-in-charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government Department.
XII. What Relief ?
48.Mr.A.Immanuel, learned counsel for third and fourth respondents fairly conceded that they did not have any standing committee as directed in the Vishaka's case (cites supra) operating in the school and that for the first time, they are receiving such a complaint on sexual harassment. Inspite of the fact that there are number of women teachers, it is not known why the school had not obeyed the direction of the Supreme Court. However keeping in mind the status of the school as minority institution and accepting the stand of the school for enquiring into the matter, these directions are issued.
49.In this context, the third respondent is hereby directed to constitute a special committee as directed in Vishaka's case (cited supra) and enquire into the complaint of sexual harassment of the women staff by the fifth respondent. That report should be obtained within three months from the date of receipt of the copy of the order and further action is to be taken on the said report against the fifth respondent.
50.In the light of the allegations and counter allegations, it is desirable that the third respondent should appoint a retired Judicial Officer not below the rank of a District Judge to conduct an enquiry against the fifth respondent in respect of the complaints received from the students, parents as well as from the Parents Teachers' Association within a period of three months from the date of receipt of the copy of the order and take a further action on the fifth respondent.
XIII.Retain the Principal :
51.Since the fourth respondent pursuant to the direction from this court had looked into the complaint of the petitioner and had made a detailed report to the third respondent, he shall be retained in the third respondent School till the enquiry is completed. Though the petitioner had submitted that he may be likely to be transferred, the third respondent had denied the said allegation, but yet asserted their managerial rights to redeploy the teacher including their own religious priests. In such cases the management did not have an absolute right of transfer.
52.When one such case came up in respect of the very same Salesian Society vide its decision in St. Anthony's College v. Rev. Fr. Paul Petta reported in 1988 Supp SCC 676, the Supreme Court had observed in paragraphs 6, 12 and 13 which are as follows:
"6....... It has been stated that St. Anthonys College is a minority institution and the Salesian Provincial is the only competent authority to make any appointment to the rank of Principal in the said College and no advertisement before making any appointment is necessary. This relaxation of restriction in regard to Minority College availing of deficit grants-in-aid has been made by Memo dated December 7, 1979. The petitioner is a member of the Salesian of Don Bosco and his appointment to the said post of Principal could never have been permanent. As a priest he is transferable from time to time to different institutions of the Society. The Constitution of the Salesian of Don Bosco provides that such transfer is binding on the petitioner as a priest and a member of the Salesian Don Bosco. The transfer of the petitioner and other priests are matters of normal routine as members of Salesian Society. It has also been stated that any money drawn by a priest has to be given to the order of Salesian of Don Bosco and no priest maintains any private fund. It is the responsibility of the Salesian Society to look after the needs and requirements of any member of the community and is responsible for the upkeep of such members. The petitioner has taken a vow of obedience when he was ordained as a priest and was admitted as a member of Don Bosco. The petition is liable to be dismissed as no statutory right of the petitioner has been violated.
12.The respondent so long as he submits to the order of transfer and complies with it, the court has nothing to do. But if he does not comply with it and questions it before the court, the court will have to consider his grievances and to decide if the impugned order of transfer is legal and valid.
13........ In such circumstances it is required to be considered whether the Salesian Provincial has power to transfer him from the post of Principal of the College to the post of Teacher in a Technical School of the Society. It is apparent from the aforesaid government instructions that the Principal whose appointment has been duly approved by the DPI can work as Principal in the minority college till he attains the age of superannuation as determined by the Government. The impugned order of transfer in substance amounts to removal of the respondent from the post of Principal of the College. It has been held by the High Court that the respondent has been condemned unheard as he was not given any opportunity to show cause for the purported order of transfer which seriously prejudiced him. The principles of natural justice and fair play mandate that in administrative actions the audi alteram partem rule is applicable and the person affected by the order has to be given an opportunity of hearing against the purported order apart from the question whether the Assam Aided College Management Rules, 1965 and Assam Aided College Employees Rules, 1960 are applicable to minority institutions. We do not consider it necessary for the purposes of this appeal to make any observations on the question whether the Assam Aided College Management Rules, 1965 and Assam Aided College Employees Rules, 1960 are applicable to minority institutions or to consider the question whether the rules concerning the terms and conditions of appointment as well as prescribing qualifications for appointment to the post of lecturers and principals as well as prescribing conditions for service are regulatory in nature and they do not contravene the fundamental right guaranteed under Article 30 of the Constitution to the minority institutions as has been observed in the case of Frank Anthony Public School Employees Association v. Union of India1. It has been contended on behalf of the learned counsel for the appellants that Appellant 2, Salesian Provincial is the appointing authority of the respondent and as such he has the right to make the impugned order of transfer though there is no express provision conferring such power. The case of Kutoor Vengayil Rayarappan Nayanar v. Kutoor Vengayil Valia Madhavi Amma2 has been cited at the Bar for the proposition that the power to terminate flows naturally and as a necessary sequence from the power to create. This proposition is a well-established proposition but the question is whether the Salesian Provincial is the appointing authority of the respondent or the Governing Body of the said College appointed the respondent and recommended his appointment for approval to the DPI. As stated earlier DPI pursuant to the recommendation of the Governing Body approved the appointment of the respondent as Principal of the said College. So this question has to be gone into and determined by the Governing Body as has been directed by the order of the High Court. It has been contended that the impugned order of transfer has seriously affected the status of the respondent as Principal of the College and this has been made by Appellant 2, Salesian Provincial without giving him any opportunity of hearing. Now insofar as the respondent is transferred in his capacity as priest from one division of the religious order to another the matter pertains to the internal management of the religious order and it is not justiciable. However, insofar as the order of transfer has been made by the Governing Body of the St. Anthonys College transferring the respondent from the post of Principal of the College to the post of teacher of Don Bosco Technical School which is in another State the respondent can complain against it. Since the respondent has not been given any opportunity of hearing against the purported order of transfer outside the State which seriously affected his status, the High Court, in the facts and circumstances of the case has directed the Governing Body of the College to give the respondent an opportunity to show cause against the impugned order of transfer dated December 14, 1985 and to give him a hearing and decide the transfer matter in accordance with law. The judgment and order passed by the High Court in the circumstances of the case cannot be faulted.
XIV.School must exercise disciplining control :
53.Therefore, atleast till the enquiry is completed, the fourth respondent shall be retained in the school without being disturbed. The third and fourth respondents themselves had agreed to conduct a proper enquiry against the fifth respondent, it is unnecessary to direct the second respondent Child Right Commission to enquire into the complaint made by the petitioner.
54.Pending the enquiry into the petitioner's complaint, i.e. complaints made by students/parents by a retired judicial Officer and the complaints made by the women staff regarding the sexual harassment by a Special Committee as per Vishaka's case, the fifth respondent shall not be allowed to rejoin duty (who is presently on leave) and he shall be placed under suspension pending enquiry into the serious allegations made against him. This is more so that he is faced with a criminal case regarding sending threatening calls to teachers even the case is pending before this Court.
55.Since prima facie case has been made out even as per the report sent by the Principal and that the management itself has agreed to abide by the directions of this court, the report of the Advocate Commissioner is rejected. The report of the Advocate Commissioner along with its enclosures including videographs shall be kept in a sealed cover by the Registry and shall not be made public.
56.In view of the above, this writ petition is disposed of with the following direction:
a)The third respondent is hereby directed to appoint a retired Judicial Officer not below the rank of District Judge to conduct an enquiry against the fifth respondent in respect of the complaints received from the students, parents as well as Parents Teachers' Association within a period of three months from the date of receipt of the copy of the order and take further action on the fifth respondent on the basis of the report.
b)The third respondent is hereby directed to constitute a special committee as directed in Vishaka's case (cited supra) and enquire into the complaints of sexual harassment of women staff by the fifth respondent. That report should be obtained within three months from the date of receipt of the copy of the order and further action is to be taken on the said report against the fifth respondent.
c)Till the two enquiries against the fifth respondent are completed, the fourth respondent shall not be shifted out of third respondent school.
d)Pending enquiry into the allegations and further decision to be taken by the management, the fifth respondent shall be kept under suspension. But however, he will be paid subsistence allowance as per law.
There will be no order as to costs. Consequently, connected miscellaneous petition stands closed.
57.The Advocate Commissioner has submitted a bill for videpgraphing and fee for stenographer for a sum of Rs.40000/-. This court had asked both the parties as to who should bear the cost. Mr.A.Immanuel, learned counsel for the third respondent had stated that if this court so desires, the bill presented by the Advocate Commissioner shall be borne by the third respondent. Hence a direction is issued to the third respondent to pay a sum of Rs.40000/- (Rupees fourty thousand only) towards the expenses incurred to the Advocate Commissioner. The same shall be paid within four weeks from the date of receipt of copy of this order.
XV.Parting Advice : A)One for the Teacher :-
58.Before concluding, it will not be out of place to refer to the observations of the Supreme Court which exhorts virtues of teachers vide tis judgment in Avinash Nagra v. Navodaya Vidyalaya Samiti reported in (1997) 2 SCC 534. The Supreme Court had observed in paragraph 11 as follows:
"11. .... Obviously, therefore, the teacher was placed on the pedestal below the parents. The State has taken care of service conditions of the teacher and he owes dual fundamental duties to himself and to the society. As a member of the noble teaching profession and a citizen of India he should always be willing, self-disciplined, dedicated with integrity to remain ever a learner of knowledge, intelligently to articulate and communicate and imbibe in his students, as social duty, to impart education, to bring them up with discipline, inculcate to abjure violence and to develop scientific temper with a spirit of enquiry and reform constantly to rise to higher levels in any walk of life nurturing constitutional ideals enshrined in Article 51-A so as to make the students responsible citizens of the country. Thus the teacher either individually or collectively as a community of teachers, should regenerate this dedication with a bent of spiritualism in broader perspective of the constitutionalism with secular ideologies enshrined in the Constitution as an arm of the State to establish egalitarian social order under the rule of law. Therefore, when the society has given such a pedestal, the conduct, character, ability and disposition of a teacher should be to transform the student into a disciplined citizen, inquisitive to learn, intellectual to pursue in any walk of life with dedication, discipline and devotion with an enquiring mind but not with blind customary beliefs. The education that is imparted by the teacher determines the level of the student for the development, prosperity and welfare of the society. The quality, competence and character of the teacher are, therefore, most significant to mould the calibre, character and capacity of the students for successful working of democratic institutions and to sustain them in their later years of life as a responsible citizen in different responsibilities. Without a dedicated and disciplined teacher, even the best education system is bound to fail. It is, therefore, the duty of the teacher to take such care of the pupils as a careful parent would take of its children and the ordinary principle of vicarious liability would apply where negligence is that of a teacher. The age of the pupil and the nature of the activity in which he takes part are material factors determining the degree and supervision demanded by a teacher."
B.One for the School :
59.The Supreme Court also has held in K. Shekar v. V. Indiramma reported in (2002) 3 SCC 586 that even a reputed educational institution is not immune from judicial scrutiny. In paragraph 21 of the judgment it was observed as follows:
"21..... It is also true that generally speaking courts have been reluctant to interfere with the running of educational institutions. But there can be no islands of insubordination to the rule of law2. The actions of educational institutions, however highly reputed, are not immune from judicial scrutiny. Indeed, to preserve the high reputation, there is a greater need to avoid even the semblance of arbitrariness or extraneous considerations colouring the institutions actions."
vvk To
1.The Director of Matriculation Schools Office of the Directorate of Matriculation schools, DPI Complex, College Road, Chennai-600 006.
2.The Child Right Commission, Bal Raksha Bharat, 3rd Floor, Vardhaman Trade Centre, 9-10-11, Nehru Place, New Delhi 110 019