THE SECRETARY, LUCY SEQUEIRA TRUST AND ANR.versusKAILASH RAMESH TANDEL AND ORS.

                         [2019] 6 S.C.R. 507                             507


   THE SECRETARY, LUCY SEQUEIRA TRUST AND ANR.                           A
                                  v.
            KAILASH RAMESH TANDEL AND ORS.
                  (Civil Appeal No. 3456 of 2019)
                          APRIL 08, 2019                                 B
   [UDAY UMESH LALIT AND INDIRA BANERJEE, JJ.]
       Service Law – Termination – Respondent No.1 appointed as
Assistant Teacher in school run by the Appellant – Warning issued
to respondent no.1 for his objectionable behavior with adolescent
                                                                         C
girl students in the school – Inquiry Committee constituted consisting
of the Convenor, Nominee of the appellant, Nominee of respondent
no.1 and a State Awardee Teacher– Respondent no.1 terminated
from service – School Tribunal, Mumbai Region, Mumbai partly
allowing the appeal filed by the respondent no.1, remitted the matter
for fresh consideration and also directed reinstatement of respondent    D
no.1, notionally for the purpose of conducting the inquiry –
Challenged by the appellant – Dismissed – On appeal, held: Two
FIRs were filed pursuant to reporting that respondent no.1 was
guilty of objectionable behavior with adolescent girl students in
the school – In both the FIRs the charge-sheets stand filed – Prima
                                                                         E
facie, the allegations made in the FIR were found sustainable in
police investigation and respondent no.1 is presently accused of
having committed said offences – Conclusion by the Convener in
the report that the charges were sensitive and that the case called
for strict action, was absolutely correct – Reports of the Nominee
of respondent no.1 and the State Awardee Teacher not only show           F
complete lack of sensitivity but they also unnecessarily got bogged
down by question whether any action on their part would amount
to contempt of court (pending criminal proceedings) or not –
Departmental proceeding and proceedings in criminal court are
completely different – Allegations made against respondent no.1
                                                                         G
were of such level 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 – Approach adopted
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                                  507
508            SUPREME COURT REPORTS                      [2019] 6 S.C.R.


A     by the Management was fair and transparent – Decision of the
      Tribunal and the High Court, set aside – Order of termination passed
      by the appellant, affirmed.
            Allowing the appeal, the Court

B           HELD: 1.1 There were two FIRs filed pursuant to reporting
      that Respondent No.1 was guilty of objectionable behavior with
      adolescent girl students in the school. In both these FIRs the
      investigation was undertaken and charge-sheets stand filed. Thus,
      prima facie, the allegations made in the FIR were found
      sustainable in police investigation and Respondent No.1 is
C
      presently accused of having committed said offences. Pursuant
      to FIR bearing CR No.24 of 2014 Respondent No.1 was arrested
      and remained in custody for about seven days. During the present
      inquiry 12 witnesses were examined out of whom five witnesses
      were girls studying in the school. It was thus not just two girl
D     students, pursuant to whose complaint the crime was registered
      against Respondent No.1, but there were other students as well.
      Some parents had also gone to the extent of levelling allegations
      against Respondent No.1. The conclusion by the Convener in
      the report that the charges were sensitive and that the case called
      for strict action, was absolutely correct. On the other hand, the
E
      reports of the Nominee of Respondent No.1 and the State
      Awardee Teacher not only show complete lack of sensitivity but
      they also got bogged down unnecessarily by a question whether
      any action on their part would amount to contempt of court or
      not. A departmental proceeding and proceedings in a criminal
F     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 as 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
G
      Respondent No.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

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     SECRETARY, LUCY SEQUEIRA TRUST v. KAILASH                         509
                  RAMESH TANDEL

not be having any bearing on the pending issue before the Inquiry      A
Committee. The approach of the Nominee of Respondent No.1
and of the State Awardee Teacher was completely wrong and
unsustainable. [Para 14][514-G-H; 515-A-F]

      1.2 The approach adopted by the Management was not only
fair and transparent but was in keeping with what is expected of       B
the Management where allegations of sexual harassment of
adolescent girls are in issue. The Tribunal, as well as the High
Court failed to appreciate the matter in correct perspective. They
ought to have accepted the decision taken by the Management.
The decision of the Tribunal, as well as the High Court set aside      C
and the order of termination pursuant to resolution
dated 26.09.2014 passed by the Appellant is affirmed.
[Paras 16, 17][517-A-C]

      Apparel Export Promotion Council v. A. K. Chopra
      (1999) 1 SCC 759 – relied on.                                    D

      State of Punjab and Ors. v. Dr. Harbhajan Singh Greasy
      (1996) 9 SCC 322 : [1996] 1 Suppl. SCR 288 –
      referred to.

                       Case Law Reference                              E

      [1996] 1 Suppl. SCR 288      referred to        Para 10

      (1999) 1 SCC 759             relied on          Para 15
                                                                       F
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3456
of 2019

      From the Judgment and Order dated 04.09.2017 of the High Court
of Judicature at Bombay in W.P. (C) No. 4383 of 2017.
                                                                       G
      Suresh Kumar Panicker, G. Prakash, Jishnu M. L., Ms. Priyanka
Prakash, Ms. Beena Prakash, Advs. for the Appellants.

     Shekhar Jagtap, M/s. J. Shekhar & Co., Advs. for the
Respondents.
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510             SUPREME COURT REPORTS                        [2019] 6 S.C.R.


A            The Judgment of the Court was delivered by
             UDAY UMESH LALIT, J.
             1. Leave granted.
             2. This appeal is directed against the final judgment and order
      dated 04.09.2017 passed by the High Court of Judicature at Bombay in
B
      Writ Petition No.4383 of 2017.
             3. Respondent No.1 was appointed as Assistant Teacher on
      01.09.2004 in a school run by the Appellant. A warning was issued to
      him on 04.05.2009 for his objectionable behavior with adolescent girl
      students in said school. On 14.12.2012, mother of a teenaged student?
C     made a complaint against Respondent No.1, pursuant to which a memo
      was issued to him on 24.01.2013. Another student* filed an FIR (C.R.
      No.67/13) dated 05.02.2013 against him alleging commission of offence
      punishable under Section 509 IPC. A letter was also received from the
      Police Station, Dindoshi, seeking response from the Head Master of the
D     school regarding the incident mentioned in said FIR. The same student,
      thereafter, filed a written complaint on 11.02.2013 against him.
             4. On 15.02.2013, the Appellant wrote to the Education Inspector
      about the FIR as aforesaid and sought permission to suspend Respondent
      No.1 and to conduct an enquiry in the matter. A letter was also issued to
      Respondent No.1 on 31.07.2013 that his confidential report was not good.
E     On 16.01.2014 father of another adolescent girl* made a complaint to
      the Appellant about the behavior of Respondent No.1 and stated that his
      daughter was not ready to go to the school. A letter dated 20.01.2014
      was, therefore, written by the Appellant to Respondent No.1 but he
      refused to acknowledge the letter. Said girl thereafter made a complaint
F     to the police as a result of which FIR bearing C.R.No.25/2014 dated
      21.01.2014 was lodged against Respondent No.1 under Section 354(a)
      of IPC read with Section 9(f), 10 and 11 of Protection of Children from
      Sexual Offences Act, 2012. Respondent No.1 was arrested in connection
      with this FIR on 21.01.2014 and remained in custody till 28.01.2014.
             5. In the aforesaid circumstances, the school Committee of the
G
      Appellant being unhappy with the conduct of Respondent No.1 passed a
      Resolution on 31.01.2014 to take action against him. The Resolution
      was forwarded to the Education Inspector. The Appellant, thereafter,
      suspended Respondent No.1 vide order dated 04.03.2014, pending

H     *Names of these students are withheld.
      SECRETARY, LUCY SEQUEIRA TRUST v. KAILASH                              511
        RAMESH TANDEL [UDAY UMESH LALIT, J.]

enquiry against him and addressed a letter to the Education Inspector on     A
05.03.2014 seeking approval of the suspension order. On 07.03.2014
statement of allegations in terms of Maharashtra Employees of Private
Schools (Conditions of Service) Rules, 1981 (for short ‘the Rules’). After
explanation was given by Respondent No.1, charge-sheet was issued to
him on 07.04.2014. The charges framed against Respondent No.1 were
                                                                             B
as under:-
      “1. It is charged against you that you have insulted the modesty of
      one of the girl students of our School by the name Ms. X*, who
      was then studying in 7th Standard, since August 2012. You are
      also charged that you have also mentally tortured her. And
      accordingly an FIR is lodged against you at Dindoshi Police Station    C
      by Ms. X* alleging an offence punishable U/Sec. 509 of IPC vide
      FIR beaing No.67 of 2013, dated 05.02.2013. Charge Sheet is
      also filed in this case. This is an act of serious misconduct and
      moral turpitude.
      2. It is charged against you that on 08.01.2014 you have outraged      D
      the modesty of one of our girl student studying in 8th standard by
      the name Ms. Y* and have committed sexual assault and you
      have sexually harassed her. She has lodged an FIR at Dindoshi
      Police Station, bearing No.25 of 2014 dated 21.01.2014 against
      you alleging offences punishable U/sec. 354-A of IPC read with         E
      Sec. 9(f)10,11 of the Protection of Children from Sexual Offences
      Act, 2012. You were arrested by the Police on 21.01.2014 and
      you were in custody till 28.01.2014. These incidents brought shame
      to the school.
      This also an act of serious misconduct and moral turpitude.”           F
       6. On 21.04.2014 an Inquiry Committee was constituted consisting
of the Convenor being Nominee of the Appellant, Nominee of Respondent
No.1 and a State Awardee Teacher. The Inquiry Committee examined
both the girls as well as other witnesses.
      7. After conclusion of the inquiry, the Convenor submitted a Report    G
on 20.09.2014 recommending that the service of Respondent No.1 be
terminated. The Report of the Convenor shows that 12 witnesses were
examined, out of which five witnesses were girls studying in the school.
Various documents were also produced on record. The Convenor in her
Report concluded:-
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512            SUPREME COURT REPORTS                          [2019] 6 S.C.R.


A           “Hence as stated earlier, we come to the conclusion that the
            charges as per the Charge-Sheet dated 07/04/2014 are proved
            against the Delinquent. The charges are so sensitive, as now-a-
            days these kinds of acts are reported in various media. The school
            is a temple of knowledge and the Girls students come to the school
            with great expectations. And if in the temple of knowledge, if
B
            such acts are allowed to take place, the image of temples of
            knowledge will be tarnished. The Girls students will get discouraged
            to come to school due to the fear and trauma. A teacher is a Guru
            and in a Gurukul, the sanctity of education ought to be maintained
            and respected. Hence, we have no hesitation to recommend to
C           the Management to terminate the services of the Delinquent
            teacher. …”
            8. Nominee of Respondent No.1 as well as the State Awardee
      Teacher, however refused to sign the Report prepared by the Convenor.
      There are observations in their reports that the guilt of the Respondent
D     No.1 would be conclusively dealt with in the pending criminal proceedings.
      Nominee of Respondent No. 1 concluded:-
            “6. As both cases of these charges or allegations are pending
            before the Hon’ble Borivali Court and Hon’ble Court of Sessions
            passing judgment about the same by the Inquiry Committee and
E           Management till the disposal of these cases as per Rule 33(6) of
            the Rules, it would amount to contempt of the Hon’ble Court.
            Therefore the Inquiry Committee cannot give any reasoned
            decision.”
            9. The State Awardee Teacher in her separate Report concluded:-
F           “Since the matters with respect to both the charges are pending
            before the Borivali Court and Sessions Court, as per Rule 36(6)
            till the disposal of these cases, giving decision by the Inquiry
            committee will amount to Contempt of the Court.”
             10. The matter was, then considered by the Appellant and by its
G     Resolution dated 26.09.2014 the Appellant terminated the service of
      Respondent No.1. Thereafter, Appeal No.34 of 2014 under Section 9 of
      the Maharashtra Employees of Private Schools Act, 1977 (for short ‘the
      Act’) and Rules framed thereunder was filed by Respondent No.1 before
      the School Tribunal, Mumbai Region, Mumbai. The application for stay
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         SECRETARY, LUCY SEQUEIRA TRUST v. KAILASH                              513
           RAMESH TANDEL [UDAY UMESH LALIT, J.]

was rejected by the Tribunal on 15.12.2014. On 17.02.2017 the Tribunal          A
partly allowed the Appeal and remitted the matter for fresh consideration.
It was observed that the State Awardee Teacher and the Nominee of
Respondent No.1 had not given any firm decision as they had proceeded
on the basis that if any decision was given, it would amount to contempt
of court, as criminal proceedings were pending against Respondent No.1
                                                                                B
before the Metropolitan Magistrate’s Court, Borivili and Sessions Court,
Dindoshi. The Tribunal relied upon a decision of this Court in State of
Punjab and Ors. vs. Dr. Harbhajan Singh Greasy 1 to the effect that
if an inquiry was found to be faulty, the matter be remitted to the
disciplinary authority to follow the procedure from the stage at which
the fault was pointed out and concluded as under:-                              C
         “27. In view of the above facts and circumstances in the light of
         ratio laid down by Hon’ble Supreme Court in the cited supra cases,
         I am of the opinion that the departmental enquiry is different than
         the criminal proceedings. In case of departmental enquiry the
         principle of preponderance of probability is applicable whereas in     D
         case of criminal trial the principle beyond reasonable doubt is
         applicable. Therefore, the State Awardee Member and the
         nominee of the appellant cannot keep their decision in abeyance
         till the outcome of criminal case as per the principles of enquiry.
         As per the provisions of Rules 1981 they have bounden duty and
         responsibility to give their firm and final decision and accordingly   E
         submit their report.
         28. Considering the facts and circumstances of the case in hand
         and in the light of ratio laid down by Hon’ble Supreme Court in
         the cited supra case of Dr. Harbhajan Singh, it is proper to remit
         the enquiry proceedings of the case in hand for fresh enquiry          F
         from the stage of submission of joint and combined final report by
         all the members of the Inquiry Committee. …..…”
      The tribunal while remitting the matter as aforesaid, directed
reinstatement of Respondent No.1, notionally for the purpose of
conducting the inquiry.                                                         G
      11. The appellant, being aggrieved, challenged the decision of the
Tribunal by filing Writ Petition No.4383 of 2017 in the High Court. The
High Court by its judgment and order dated 04.09.2017 dismissed said
1
    (1996) 9 SCC 322
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514            SUPREME COURT REPORTS                         [2019] 6 S.C.R.


A     Writ Petition and upheld the order passed by the Tribunal. It held that
      the Tribunal was justified in remitting the matter as the nominee of
      Respondent No.1 and the State Awardee Teacher had not given any
      clear-cut opinions. The High Court also directed that the exercise of
      conducting the inquiry be undertaken as expeditiously as possible and
      preferably within three months.
B
             12. The appellant, being aggrieved, has challenged the view taken
      by the High Court and the Tribunal before this Court. While issuing
      notice on 03.11.2017 the operation of the impugned order was stayed.
      After exchange of pleadings, the matter was taken up for final disposal.
      The learned Counsel for the appellant submitted that as many as five
C     girls had given statements before the Committee and two of them had
      gone to the extent of filing criminal proceedings against Respondent No.
      1. The girls were in the age range of 13-14 years and the management
      had rightly taken the decision to terminate the service of Respondent
      No.1 and that it would be hazardous to have a teacher like him in the
D     school. He further submitted that since approach of two out of three
      members of the Inquiry Committee was completely incorrect and they
      had not given any conclusive findings, the management was competent
      to take a decision in the matter, which was not only consistent with the
      findings of the Convenor but was otherwise supported by the facts on
      record and was arrived at in a transparent manner.
E
            13. Learned counsel for Respondent No.1, on the other hand,
      submitted that the Committee comprised of three representatives and
      the State Awardee Teacher, a completely dispassionate and impartial
      observer had concluded that the inquiry must await the conclusion of
      proceedings in criminal cases. There was thus, no justification for the
F     Management to issue an order of termination. In his submission, the
      Tribunal was justified in passing the directions in question.
            14. What emerges from the record is:
            (a)There were two FIRs filed pursuant to reporting that
G           Respondent No.1 was guilty of objectionable behavior with
            adolescent girl students in the school. In both these FIRs the
            investigation was undertaken and charge-sheets stand filed. Thus,
            prima facie, the allegations made in the FIR were found sustainable
            in police investigation and Respondent No.1 is presently accused
            of having committed said offences.
H
         SECRETARY, LUCY SEQUEIRA TRUST v. KAILASH                            515
           RAMESH TANDEL [UDAY UMESH LALIT, J.]

         (b) Pursuant to FIR bearing CR No.24 of 2014 Respondent No.1         A
         was arrested and remained in custody for about seven days.
         (c) During the present inquiry 12 witnesses were examined out of
         whom five witnesses were girls studying in the school.
        It was thus not just two girl students, pursuant to whose complaint
the crime was registered against Respondent No.1, but there were other        B
students as well. Some parents had also gone to the extent of levelling
allegations against Respondent No.1. The conclusion by the Convener
in the report that the charges were sensitive and that the case called for
strict action, was absolutely correct. On the other hand, the reports of
the Nominee of Respondent No.1 and the State Awardee Teacher not              C
only show complete lack of sensitivity but they also got bogged down
unnecessarily by a question whether any action on their part would amount
to contempt of court or not. 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   D
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 No.1 were of such level and dimension that an
immediate action on the departmental front was required to be undertaken      E
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 No.1 and of the State Awardee Teacher was completely
wrong and unsustainable.                                                      F

       15. The approach to be adopted in matters where allegations of
sexual harassment are made, is summed up in paragraph 28 of the decision
of this Court in Apparel Export Promotion Council v. A.K. Chopra2.
Said paragraph is as under:-
                                                                              G
         “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
2
    (1999) 1 SCC 759                                                          H
516             SUPREME COURT REPORTS                            [2019] 6 S.C.R.


A           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
B
            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
C           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
D
            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
E           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.”
F
              16. The facts also disclose that the Management had not taken
      any hasty action in initiating the proceedings against Respondent No.1.
      The Appellant had intimated the Department soon after the lodging of
      the first complaint by girl students with the police. The order of suspension
      and initiation of inquiry was preceded by a resolution passed by the
G     School Committee of the Appellant. Appropriately constituted Inquiry
      Committee then went into the allegations where 12 persons including
      five girl students were examined as witnesses. If the Nominee of
      Respondent No.1 and the State Awardee Teacher had not given any
      final decision with clarity, since in their view it would have amounted to
H
      SECRETARY, LUCY SEQUEIRA TRUST v. KAILASH                             517
        RAMESH TANDEL [UDAY UMESH LALIT, J.]

contempt of court, the Appellant was justified in relying upon the          A
conclusions drawn by the Convener of the Inquiry Committee and then
pass an order of termination. In our view, the approach adopted by the
Management was not only fair and transparent but was in keeping with
what is expected of the Management where allegations of sexual
harassment of adolescent girls are in issue.
                                                                            B
       17. The Tribunal, as well as the High Court failed to appreciate
the matter in correct perspective. They ought to have accepted the
decision taken by the Management. We, therefore, allow this appeal,
set aside the decision of the Tribunal, as well as the High Court and
affirm the order of termination pursuant to resolution dated 26.09.2014
passed by the Appellant. No costs.                                          C


Divya Pandey                                              Appeal allowed.


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