No Sexual Flavour In Touching Student’s Shoulder To Restrain Her From Copying In Exam: Calcutta HC Quashes CAT Order Dismissing School Teacher

The Calcutta High Court’s Circuit Bench at Port Blair has quashed orders of the Disciplinary Authority, Appellate Authority and Central Administrative Tribunal (“CAT”), dismissing a middle school teacher (“petitioner”) on an allegation made by a Class 8 student that the petitioner had outraged her modesty in 2009, by physically touching her on her back, which had caused unrest among the students.

In noting that the teachers attempt to restrain the victim from copying in an exam could not be said to have sexual intent, a division bench of Justices Suvra Ghosh and Subhendu Samanta held:

Restraining the victim from copying in the examination by touching her shoulders from behind can under no stretch of imagination be termed as misconduct, more so, since the victim herself has not termed such action to be inappropriate or malicious. For the said reason the penalty imposed upon the petitioner is also utterly disproportionate and has no legal sanction. Restraining her from copying in the examination cannot be said to have any sexual flavour. The victim has not for once indicated that the said touch was with sexual intent or inappropriate.

These observations came in a plea filed by the petitioner against an order of the CAT, which affirmed the orders of dismissal passed against him.

Petitioner submitted that a criminal case under Section 354 IPC which had been instituted against him, had ended in acquittal due to a compromise made with the victim, and that subsequent charges were framed against him in a departmental proceeding for gross misconduct unbecoming of a Government servant.

It was argued that the victim had initially stated that the petitioner had touched her back and pulled the straps of her under garment, but in cross-examination stated that she was copying on a test and had given a false statement due to shock, nervousness and anger due to the petitioner touching her shoulder.

Petitioners submitted that due to the victim’s changing statements, none could be relied upon and that even if the petitioner had touched her, it was to stop her from copying and the same had no sexual intent.

Counsel for the respondents submitted that the decisions taken by the authorities were well reasoned, and that a court exercising judicial review may only interfere when the authority had acted in a manner inconsistent with the principles of natural justice or statutory rules.

Upon hearing the contention of the parties, the Court perused the facts of the case and found that the disciplinary authority did not afford any weightage to the petitioner’s acquittal in the IPC 354 complaint, since the victim being a minor was not competent to enter into a contract or compromise petition with the petitioner.

Court noted that such a compromise petition could not be termed a contract, since it clearly stated that the petitioner was innocent and that the victim had falsely lodged the complaint against him.

Court observed that none of the witnesses examined by the disciplinary authority had corroborated the allegations against the petitioner and even the victim had retracted her statement that the petitioner tried to molest her.

Bench held that the disciplinary authority had “thrust an allegation of sexual harassment upon the petitioner” and that the same findings were repeated by the appellate authority as well as the CAT, without independently considering the legality or correctness of the orders.

It was held that the disciplinary authority had awarded penalty of dismissal against the petitioner without any evidence against him, and that the allegations of misconduct against him rested solely on the unproven anvil of alleged molestation. Court observed:

It is ultimately the alleged molestation which has been termed as misconduct on the part of the petitioner. There is not an iota of evidence on record that suggests misconduct on the part of the petitioner. The statement of the victim is exonerative in nature and gives a clean chit to the petitioner. The decision of the authorities is based on no evidence at all and no misconduct resulting in violation of the service rules has been substantiated against the petitioner.

Accordingly, the order of dismissal against the petitioner was quashed, and the inquiry report into him was set aside as well.

Petitioner was further reinstated to his service with full back-wages along with a payment of Rs 10,000 by the respondent authorities.

Citation: 2023 LiveLaw (Cal) 323

Case: Anil Kumar Mridha v Union Of India and Others

Case No: WPCT 50 of 2023

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