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. https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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. https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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. https://hcservices.ecourts.gov.in/hcservices/ (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. https://hcservices.ecourts.gov.in/hcservices/ 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