POSH Act applicable even if girl student complains against teacher: Calcutta High Court

IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE THE HON’BLE JUSTICE HARISH TANDON THE HON’BLE JUSTICE RABINDRANATH SAMANTA WP.CT 86 OF 2021 Pawan Kumar Niroula Union of India and others. _ _ _ _ _ _ ….. for the Petitioner. ….. for the Respondent No.1. ….. for the Respondent Nos. 2 to 6. Mr.Suman Banerjee. Mr. Tapan Bhanja. Mr. Pulkesh Bajpayee. Heard On Judgment on Rabindranath Samanta J: 07.12.2021 24.01.2022 1. This writ petition has been preferred by the petitioner Pawan Kumar Niroula challenging the order dated 05.10.2021 passed by the Central Administrative Tribunal Kolkata Bench( hereinafter be referred to as the Tribunal) in O.A. No. 352 09 SKM 2021. 2. In the tribunal application the petitioner sought for the following reliefs : a) An order be passed directing the respondent authorities concerned to immediately allow the applicant to join his duties as TGT at Jawahar Navodaya Vidyalaya Ravangla South Sikkim b) An order be passed directing the respondent authorities forthwith set aside cancel withdraw rescind the decision of the respondent no. 2 to conduct summary trial into the allegation against the applicant vide reference no. PER 14032 2 2020 Estt III 13728 733 dated 16.06.2020 c) An order be passed directing the respondent authorities forthwith set aside cancel withdraw the order of suspension being Ref. No. PER.DP NVS PK Niroula 6170 dated 16.02.2020 and the subsequent orders of extension. 3. The Learned Tribunal by the order impugned permitted the respondent authorities to proceed with the order for summary trial and directed the petitioner to co operate with the authorities. 4. The seminal question involved in this writ petition is as to whether the order of suspension inflicted upon the petitioner is sustainable in law and the committee for summary trial pertaining allegations of sexual harassment against the petitioner has statutory force after enactment of The Sexual harassment of Women at Workplace Prevention Prohibition and Redressal) Act 2013 and amendment of relevant provisions of the Central Civil Services Classification Control and Appeal) Rules 1965 in the light of the Act. as under: 5. The background facts as projected by the petitioner and which are necessary for adjudication may be adumbrated The petitioner is a teacher and he was appointed by the respondent Navodaya vidyalaya Samiti on 17.11.1997 as TGT(Trained Graduate Teacher) Nepali. He was initially posted at Jawahar Navodaya Vidyalaya North Sikkim. Later he was transferred to Bihar in the year 2006 and in the year 2007 he was again transferred to North Sikkim. Lastly he was transferred to his present place of posting in the year 2011. On 15.02.2020 the respondent no. 4 the principal Jawahar Navodaya Vidyalaya Ravangla South Sikkim made a written complaint with the Officer in Charge of Ravangla Police Station to the effect that he received complaints from several students of Jawahar Navodaya Vidyalaya against the petitioner alleging commission of sexual harassment on 14.02.2020 and immediately thereafter he set up an internal committee to enquire into the complaints. It was also stated in the complaint that around 67 students complained in writing with the said committee that they were personally harassed by the petitioner. On such allegations the principal requested the Officer in Charge of the police station to take appropriate legal action against the On the basis of the aforesaid complaint Ravangla Police Station Case No. 02 of 2020 dated 15.02.2020 under Section 10 of the Protection of Children from Sexual Offences Act 2012 was registered against the petitioner for investigation. The petitioner was arrested by the Investigating Officer on 15.02.2020 but subsequently he was released on bail by the concerned Court. The petitioner was not informed about any disciplinary action taken against him but from unofficial sources he came to know that he was placed under suspension. However in reply to an Email dated 11.06.2020 seeking information regarding his status as he intended to join his duties the respondent no. 4 by communicating an order being No. PER.DP NVS(SHR) PK Niroula 6170 dated 16.02.2020 informed him that he was placed under suspension with effect from 15.02.2020 in terms of sub rule of Rule 10 of the Central Civil Services Classification Control and Appeal) Rules 1965. The petitioner being aggrieved by the order of suspension made an appeal before the Chairman of Navodaya Vidyalaya Samiti under Rule 23 of the Central Civil ServicesRules 1965 on 10.07.2020 but he is yet to know about its fate. 6. Initially the order of suspension inflicted upon the petitioner was from 15.02.2020 and it was extended for a period of 90 days. Even during the pendency of the appeal preferred by the petitioner before the Chairman of the said Samiti the order of suspension was extended for an another period of 90 days. Subsequently such suspension order was further extended for another term of 90 days and ultimately it was extended up to 10.02.2021. 7. By an order dated 16.06.2020 the respondent school authorities informed the petitioner that the respondent no. 2 constituted a committee for summary trial for into the allegations levelled against him dispensing with the regular disciplinary proceedings in terms of the Central Civil ServicesRules 1965. 8. It is contended by the petitioner that as the complaint against him is of the nature of sexual harassment at workplace the respondent school authorities should have constituted internal complaints committee and such committee shall be deemed to be the inquiring authority appointed by the disciplinary authority. Under such factual scenario the petitioner assails the impugned order on the grounds that the Learned Tribunal ought not to have directed the respondent authorities to proceed with the order of summary trial which has no in view of the advent of The Sexual Harassment of Women at Workplace Prevention Prohibition and Redressal) Act 2013. 9. Admittedly the Central Civil Services Rules 1965 are applicable to the teachers of Jawahar Nabadaya Vidayalaya Ravangla South Sikkim which is wholly financially aided by the Central Government. 10. As it is evident from the documents on record on a written complaint made by the respondent no. 4 with the local police station one Ravangla P.S Case no. 2 dated 15.02.2020 under Section 10 of POCSO Act was launched for investigation against the petitioner and he was arrested on 15.02.2020. On the following date i.e. on 16.02.2020 the school authority by an order dated 16.02.2020 placed the petitioner under suspension on the ground of his detention. 11. Learned Counsel appearing for the petitioner has argued that the order of suspension inflicted by the respondent school authorities smacks of illegality as the suspension order was passed while the petitioner was detained in custody for 24 hours. In such context Learned Counsel submits that in terms of Rule 10(a) of the Central Civil Services Rules 1965a government servant shall be deemed to have been placed under suspension by an order of appointing authority with effect from the date of his detention if he is detained in custody whether on a criminal charge or otherwise for a period exceeding forty eight hours. It is not in dispute that the respondent authorities placed the petitioner under suspension within 24 hours of his detention. That being so the order of suspension is illegal ab initio as it was made in gross violation of Rule 10(2) of the CCS CCA Rules. 12. What we find from the documents on record the order of suspension made on 16.02.2020 was extended from time to time and finally it was extended till 10.02.2021. Amid such continuing suspension the respondent school authorities by an order dated 16.06.2020 constituted the for summary trial to enquire into the allegations of sexual harassment against the petitioner. In the decision in the case of Ajay Kumar Choudhary Vs Union of India reported in7 SCC 291 the Hon’ble Apex Court has held as under: “Suspension specially preceeding the formulation of charges is essentially transitory or temporary in nature and must perforce be of short duration. If it is for an indeterminate period or if its renewal is not based on sound reasoning contemporaneously available on the record this would render it punitive in nature. Departmental disciplinary proceedings invariably commence with delay are plagued with procrastination prior and posts the drawing up of the memorandum of charges and eventually culminate after even longer delay. Protracted periods of suspension renewal thereof have regrettably become the norm and not the exception that they ought to be. The suspended person suffering ignominy of insinuations the scorn of society and the derision of his department has to codure this excruciation even before he charged with misdemeanour indiscretion or offence. His torment is his knowledge that if and when changed it will take an inquisition or inquiry to come to its culmination that is to determine his innocence or inquiry. Hence it is directed that the currency of a suspension order should not extend beyond three months if within this period the memorandum of charges charge sheet is not served on the delinquent officer employee the memorandum charges charge sheet is served a reasoned order must be passed for the extension of suspension.” 14. After the petitioner was under suspension for more than 100 days he without being served with any charge sheet was handed down the order dated 16.06.2020 informing that a committee was constituted for summary trial to enquire into the complaints against him. In view of the law declared by the Hon’ble Apex Court in the case of Ajay Kumar Choudhary supra the order of suspension exceeding 90 days without any justifiable ground is vitiated with illegalities. It is not in dispute that the petitioner preferred an appeal against the order of suspension under Rule 23 of CCS CCA Rules on 09.07.2020 but the authority turned deaf ear to the appeal. Such acts on the part of the concerned respondent authority reek of malafides. Under such factual matrix the order of suspension which is illegal ab initio and its extension did not conform to the legal principles enunciated by the Hon’ble Apex Court in the decision of the Ajay Kumar Choudhary supra is liable to be quashed. 16. Learned Counsel appearing for the respondent school authorities has submitted that the notification dated 20.12.1993 issued by the Navadaya Vidyalaya Samiti prescribing the constitution of committee for summary trial to enquire into allegations of sexual harassment against any teacher of the school carries legal force as the notification has been upheld by the Hon’ble Apex Court in the decision in the case of Avinash Nagra Vs Navadaya Vidyalaya Samiti reported in JT 1996SC 461. 17. Be that as it may the legal scenario as to dealing with the complaints of sexual harassment at workplace has undergone a sea change after the law declared by the Hon’ble Supreme Court in the case of Vishaka Vs State of Rajasthan reported in 6 SCC 241 and after enactment of The Sexual Harassment of Women at Workplace Act 2013. In the decision in Vishaka the Hon’ble Apex Court directed that every organisation public or private shall have to constitute an internal complaints committee to enquire into any complaint of sexual harassment made by any aggrieved woman. In a later decision in the case of Medha Kotwal Lele and Others Vs Union of India and Ors reported in1 SCCC 297 the Hon’ble Supreme Court further passed the similar directive as to formation of internal complaints committee at every workplace. 18. However the Sexual Harassment of Women at Workplace Act 2013 which came into force on 09.12.2013 now occupies the field and the Act contains a mechanism to deal with complaints of sexual harassment. In this regard it will be apposite to refer to Section 4 of the Act. Section 4 of the Act reads as under: “4. Constitution of Internal Complaints Committee.Every employer of a workplace shall by an order in writing constitute a to be known as the “Internal Complaints Committee”. Provided that where the offices or administrative units of the workplace are located at different places or divisional or sub divisional level the Internal Committee shall be constituted at all administrative units or offices. 2) The Internal Committee consist of the following members to be nominated by the employer namely: a) a Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees: Provided that in case a senior level woman employee is not available the Presiding Officer shall be nominated from other offices or administrative units of the workplace referred to in sub section(1) : Provided further that in case the other offices or administrative units of the workplace do not have a senior level woman employee the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organisation b) not less than two Members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge one member from amongst non or associations committed to the cause of women or a person familiar with the issues relating to sexual Provided that at least one half of the total Members so nominated shall be women. 3) The Presiding Officer and every Member of the Internal Committee shall hold office for such period not exceeding three years from the date of their nomination as may be specified by the 4) The Member appointed from amongst the non governmental organisations or associations shall be paid such fees or allowances for holding the proceedings of the Internal Committee by the employer as may be prescribed. 5) Where the Presiding Officer or any Member of the Internal Committee a) contravenes the provisions of section 16 or b) has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him or he has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him or d) has so abused his position as to render his continuance in office prejudicial to the public interest such Presiding Officer or Member as the case may be shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section.” In order to implement section 4 of the Act in letter and spirit and to make the internal complaints committee viable and independent the Hon’ble Apex Court in a recent decision in the case of Punjab and Sind Bank and Others Vs Durgesh Kuwar reported in SCC Online SC 774 has observed at paragraph 22 that clause of Section 4 indicates that one member of the internal complaints committee has to be drawn from amongst a non governmental organisation or association committed to the cause of women or a person familiar with issues relating to sexual harassment. The purpose of having such a member is to ensure the presence of an independent person who can aid advise and assist the committee and thereby it obviates an institutional bias. 20. The committee in question for summary trial as constituted by respondent school authorities comprises the following members: 1. Shri Vikram Joshi D.C(Pers) NVS Hqrs. Noida 2. Shri N. Haribabu AC NVS RO Shillong Member 3. Smt. Sarita AC NVS RO Lucknow Member 21. As discussed above it is axiomatic that the committee so formed by the respondent school authorities cannot be termed as an internal complaints committee as envisaged under the provisions of Section 4 of the Sexual Harassment of Women at Workplace Prevention Prohibition and Redressal) Act 2013. Though the committee was constituted in terms of the notification dated 20.12.1993 issued by Navadaya Vidyalaya Samiti but the committee dehors of the fundamental legal requirements under Section 4 of the Act has now lost its statutory force. 22. Learned Counsel for the respondent school authorities has further argued that since the allegations of sexual harassment have been made by the girl students of the school the provisions of the aforesaid Act will not be applicable to the respondent school. In this context the definition of ‘aggrieved woman’ as defined under Section 2of the Act may be referred. As per Section 2an aggrieved woman means in relation to a workplace a woman of any age whether employed or not who alleges to have been subjected to any act of sexual harassment by the respondent. That being so the provisions of the Act squarely apply to the students of the 24. Now we may advert to another relevant provision of the aforesaid Act. Section 11 of the Sexual Harrasment of Women at Workplace Prevention Prohibition and Redressal) Act 2013 inter alia provides that the internal complaints committee shall where the respondent is an employee proceed to make inquiry into the complaint in accordance with the provisions of the service rules respondent. After the Sexual Harrasment of Women at Workplace Prevention Prohibition and Redressal) Act 2013 came into force the relevant service rules viz Central Civil Services Conduct) Rules 1964 and the Central Civil Services Classification Control and Appeal) Rules 1965 were suitably amended. Rule 3C of Central Civil Services Conduct) Rules 1964 amongst others reads as under: 1. No Government servant shall indulge in any act of sexual harassment of any woman at any workplace. 2. Every government servant who is in charge of a workplace shall take appropriate steps to prevent sexual harassment of any woman at the workplace. 25. For the purpose of this rule ‘sexual harassment’ includes anyone or more of the following acts or behaviournamely: Physical Contact and advances or A demand or request for sexual favours or iii) Making sexually coloured remarks or iv) Showing pornography or Any other unwelcome physical verbal non verbal conduct of a sexual nature. 26. On the other hand the amended Rule 14 of the Central Civil Services Rules 1965 inter alia enjoins as follows: Where there is a complaint of sexual harassment within the meaning of Rule 3C of the Central Civil Conduct) Rules 1964 the complaints each ministry or department or office for inquiring into such complaints shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of this rule and the complaints committee shall hold if separate procedure has not been prescribed for the complaints committee for holding the enquiry into the complaints of sexual harassment the inquiry as far as practicable in accordance with the procedure laid down in these In view of the legal position as above the committee constituted for summary trial without adhering to the mandatory requirements of the law and the rules as quoted above loses its legal force. Therefore viewed from all aspects the impugned order passed by the Learned Tribunal holding the legality of the committee for summary trial is not sustainable in law. 28. Therefore in view of the observations as above the question as raised for resolution is answered in the negative. In the result the writ petition succeeds. 30. The impugned order dated 05.10.2021 passed by the Learned Central Administrative Tribunal Kolkata Bench in O.A.No. 352 9 SKM 2021 is hereby set aside. being No. O.A.No. 352 9 SKM 2021 is allowed. 31. The order of suspension against the petitioner vide order dated 16.02.2020 made by the respondent no. 4 and extended from time to time and the order dated 16.06.2020 by which the committee for summary trial was constituted are hereby quashed. 32. The respondent school authorities are directed to allow the petitioner to join his duties within one month from date. They are also directed to pay all the back wages to the petitioner within two months from the date of In view of the above the writ petition stands disposed joining of his duties. of. 34. No order as to costs. 35. Urgent certified website copies of this judgment if applied for be given to the parties upon compliance with all requisite formalities. Rabindranath Samanta J.) I agree Harish Tandon J.) 

Summary: The issue whether applicability of POSH Act 2013, a statute enacted as per the guidelines in vishakha judgement,can be extended to complaints of sexual harassment by girl student against male school teacher was before consideration of a division bench of Calcutta High Court consisting of Justice Harish Tandon  and Justice Rabindranath Samanta in the matters between Pawan Kumar Niroula v. Union of India WP.CT. 86 of 2021 decided on 24.1.2022 The facts of the case are that the Jawahar Navodaya Vidyalaya is a government school who filed a police complaint after receiving complaints from several students that the petitioner was harassing them. Shortly after filing a complaint with the police, an internal complaints committee was set up by the school to investigate the complaints. The petitioner was informed that he was suspended through unofficial channels, although he was not informed of any disciplinary action against him. The stay order was extended several times over the course of a year, during which time the petitioner was briefed on the forming a committee that was to hold a summary trial for the petitioner. The counsel for the petitioner challenged that both the stay order and the summary proceedings before the Central Administrative Court (CAT). The court found no flaws in the proceedings and instructed the petitioner to cooperate with the authorities. This order of the CAT was challenged before the Supreme Court in the present case. It was the petitioner’s stance that school officials should form an internal complaints committee and that summary proceedings had no legal force in terms of the provisions of the POSH Act.It was alleged that the suspension decision was illegal as it was made while the petitioner was in custody for 24 hours, and a civil servant could only be suspended if the detention period exceeded 48 hours. The counsel for the respondent contended that because the allegations were made by the school’s female students, the POSH Act was not actually applicable to the facts of the case. This interpretation was flatly rejected by the judges, who discussed the definition of “aggrieved woman” under the law. The Calcutta High Court held the committee in question was not an internal complaints committee as required by the POSH Act. The court ruled that such an act exceeding 90 days without justification was illegal. The summary trial committee was found to lack legal force as it did not comply with the mandatory requirements of the law. The court debated the Supreme Court’s decision in the case of Ajay Kumar Choudhary v. Union of India. In this case, the higher court ruled that a suspension exceeding 90 days without justification was illegal. The Court therefore found the CAT decision upholding the committee’s legality unsustainable. School authorities were directed to allow the petitioner to rejoin their duties within one month and pay all retroactive fees due within two months of rejoining.