CIVIL APPEAL NO. 3456 .OF 2019 (@ SLP(C)NO. 28314 OF 2017) THE SECRETARY, LUCY SEQUEIRA TRUST AND ANR.  VS.  KAILASH RAMESH TANDEL AND ORS.

                                      1 Reportable

       IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  3456  OF 2019 (Arising out of Special Leave Petition (Civil) No.28314 of 2017)

          THE SECRETARY, LUCY SEQUEIRA TRUST AND ANR.         …Appellants

VERSUS

KAILASH RAMESH TANDEL AND ORS.       …Respondents

J U D G M E N T

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 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  made  a  complaint  against  Names of these students are withheld.

CIVIL APPEAL NO. 3456 .OF 2019 (@ SLP(C)NO. 28314 OF 2017) THE SECRETARY, LUCY SEQUEIRA TRUST AND ANR.  VS.  KAILASH RAMESH TANDEL AND ORS.

                                      2 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  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.  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 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

CIVIL APPEAL NO. 3456 .OF 2019 (@ SLP(C)NO. 28314 OF 2017) THE SECRETARY, LUCY SEQUEIRA TRUST AND ANR.  VS.  KAILASH RAMESH TANDEL AND ORS.

                                      3 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 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 enquiry against him and addressed a

letter  to  the  Education  Inspector  on  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 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 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 the modesty of one of our girl student studying in 8th standard by the name Ms. Y* and have committed sexual

CIVIL APPEAL NO. 3456 .OF 2019 (@ SLP(C)NO. 28314 OF 2017) THE SECRETARY, LUCY SEQUEIRA TRUST AND ANR.  VS.  KAILASH RAMESH TANDEL AND ORS.

                                      4 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  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.”

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 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:- “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 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.

CIVIL APPEAL NO. 3456 .OF 2019 (@ SLP(C)NO. 28314 OF 2017) THE SECRETARY, LUCY SEQUEIRA TRUST AND ANR.  VS.  KAILASH RAMESH TANDEL AND ORS.

                                      5 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 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 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  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:-

“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

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

CIVIL APPEAL NO. 3456 .OF 2019 (@ SLP(C)NO. 28314 OF 2017) THE SECRETARY, LUCY SEQUEIRA TRUST AND ANR.  VS.  KAILASH RAMESH TANDEL AND ORS.

                                      6 Tribunal, Mumbai Region, Mumbai.  The application for stay was rejected by

the Tribunal on 15.12.2014.  On 17.02.2017 the Tribunal 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 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 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:- “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 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

 (1996) 9 SCC 322

CIVIL APPEAL NO. 3456 .OF 2019 (@ SLP(C)NO. 28314 OF 2017) THE SECRETARY, LUCY SEQUEIRA TRUST AND ANR.  VS.  KAILASH RAMESH TANDEL AND ORS.

                                      7 duty  and  responsibility  to  give  their  firm  and  final decision and accordingly 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 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.

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 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.  

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

CIVIL APPEAL NO. 3456 .OF 2019 (@ SLP(C)NO. 28314 OF 2017) THE SECRETARY, LUCY SEQUEIRA TRUST AND ANR.  VS.  KAILASH RAMESH TANDEL AND ORS.

                                      8 of pleadings, the matter was taken up for final disposal.  The learned Counsel

for the appellant submitted that as many as five 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  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.   

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 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:

CIVIL APPEAL NO. 3456 .OF 2019 (@ SLP(C)NO. 28314 OF 2017) THE SECRETARY, LUCY SEQUEIRA TRUST AND ANR.  VS.  KAILASH RAMESH TANDEL AND ORS.

                                      9 (a) 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 presently

accused of having committed said offences.   

(b) Pursuant  to  FIR bearing CR No.24 of  2014 Respondent  No.1 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 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 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

CIVIL APPEAL NO. 3456 .OF 2019 (@ SLP(C)NO. 28314 OF 2017) THE SECRETARY, LUCY SEQUEIRA TRUST AND ANR.  VS.  KAILASH RAMESH TANDEL AND ORS.

                                      10 court are completely different.  The purpose is different, the standard of proof

is different and the approach is also different.  The initiation of the process in

a departmental proceeding, specially on charges with which we are concerned

in the present matter can never be said to be amounting to contempt of court

even if the criminal proceedings were pending.  The allegations made against

Respondent 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 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.

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.  Chopra.   Said

paragraph is as under:-

“28.    The observations made by the High Court to the effect that since the respondent did not “actually molest” Miss X but only “tried to molest” her and, therefore, his removal  from  service  was  not  warranted,  rebel  against realism and lose their sanctity and credibility. In the instant

  (1999) 1 SCC 759

CIVIL APPEAL NO. 3456 .OF 2019 (@ SLP(C)NO. 28314 OF 2017) THE SECRETARY, LUCY SEQUEIRA TRUST AND ANR.  VS.  KAILASH RAMESH TANDEL AND ORS.

                                      11 case, the behaviour of the respondent did not cease to be outrageous for want of an  actual assault or  touch by the superior  officer.  In  a  case  involving  charge  of  sexual harassment  or  attempt  to  sexually  molest,  the  courts  are required to examine the broader probabilities of a case and not  get  swayed  by  insignificant  discrepancies  or  narrow technicalities or the dictionary meaning of the expression “molestation”.  They must  examine  the  entire  material  to determine the genuineness of the complaint. The statement of the victim must be appreciated in the background of the entire  case.  Where  the  evidence  of  the  victim  inspires confidence, as is the position in the instant case, the courts are obliged to rely on it. Such cases are required to be dealt with great sensitivity. Sympathy in such cases in favour of the superior officer is wholly misplaced and mercy has no relevance. The High Court overlooked the ground realities and  ignored  the  fact  that  the  conduct  of  the  respondent against  his  junior female employee,  Miss X, was wholly against moral sanctions, decency and was offensive to her modesty.  Reduction  of  punishment  in  a  case  like  this  is bound  to  have  a  demoralising  effect  on  the  women employees  and  is  a  retrograde  step.  There  was  no justification  for  the  High  Court  to  interfere  with  the punishment imposed by the departmental authorities. The act of the respondent was unbecoming of good conduct and behaviour  expected  from  a  superior  officer  and undoubtedly amounted to sexual harassment of Miss X and the  punishment  imposed  by  the  appellant  was  thus commensurate  with  the  gravity  of  his  objectionable behaviour and did not warrant any interference by the High Court in exercise of its power of judicial review.”

 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

CIVIL APPEAL NO. 3456 .OF 2019 (@ SLP(C)NO. 28314 OF 2017) THE SECRETARY, LUCY SEQUEIRA TRUST AND ANR.  VS.  KAILASH RAMESH TANDEL AND ORS.

                                      12 was  preceded  by  a  resolution  passed  by  the  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 contempt of court,  the Appellant was justified in

relying  upon  the  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.

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.

………..…..……..……J.                                                                                (Uday Umesh Lalit)

..………….……………J.                                 (Indira Banerjee)

New Delhi, April 08, 2019.