No sexual flavor in touching student’s shoulder to restrain her from copying in exam

November 2, 2023
Calcutta High Court grants

By Anuradha Gandhi and Rachita Thakur

The Calcutta High Court’s circuit bench at Port Blair has quashed the orders of the Disciplinary Authority, Appellate Authority and Central Administrative Authority Tribunal (hereinafter referred to as the “CAT”) dismissing a middle school teacher (hereinafter referred to as the “Petitioner”) on an allegation made by a class 8 student that the Petitioner has outraged her modesty in 2009 by physically touching her on her back.

The division bench noted that the act of restraining the victim from copying in an exam could not be said to have sexual intent.

Why was the plea filed?

The plea was filed by the Petitioner against an order of the CAT dated August 08, 2018[1] affirming the orders of dismissal passed against him.

Facts of the case

  1. The departmental proceedings were initiated against the Petitioner, a primary school teacher at Government Middle School, Krishna Nagar, Havelock, on an allegation made by a girl student (hereinafter referred to as the “Victim”) of class VII of the school that the Petitioner outraged her modesty on November 21, 2009;
  2. The charge framed against the Petitioner was proved to the extent that the Petitioner had physically touched the Victim on her back caused unrest among the students for which the school did not function normally on November 23, 2009;
  3. There Disciplinary Authority, by an order passed on February 28, 2012, imposed a major penalty of dismissal from service by holding the Petitioner guilty of the allegation;
  4. Appeal was preferred against the impugned order of the Disciplinary Authority wherein the Appellate Authority affirmed the order of the Disciplinary Authority including the penalty imposed upon the Petitioner;
  5. The review petition, filed by the Petitioner, was also rejected by an order dated August 8, 2018. However, the matter was carried to the Central Administrative Tribunal by the Petitioner, which by impugned order turned down the prayer of the Petitioner and dismissed the application filed by him.

Submissions of the Petitioner

  1. It was submitted by the Petitioner that the criminal case instituted against the Petitioner under Section 354 of the Indian Penal Code acquitted the Petitioner on the anvil of a compromise petition filed by the Victim and the Petitioner jointly before the Trial Court. The Petitioner was not guilty of the offense of sexual harassment in view of the compromise and hence acquitted of the charge.

The Disciplinary Authority noted that since the minor is not competent to enter into a contract, the compromise petition filed by the Victim and the Petitioner jointly cannot be of aid to the Petitioner.

  1. However, a charge was framed against the Petitioner in the departmental proceeding to the effect that the Petitioner committed gross misconduct unbecoming of a Government Servant;
  2. On examining the Victim during the departmental proceedings, the Victim adduced evidence and stated in her examination-in-chief that the Petitioner put his hand on her back and pulled the straps of her undergarment. It was further stated by the Victim that she was not interested in contesting the case further and the case may be dropped/dismissed. The Victim also admitted that she was copying during the science test held on the date of the incident and she gave false statement before the police on self defence as she was shocked, nervous and aggrieved as well as angry due to the act of the Petitioner. The Victim had also stated that the remaining part of her statement recorded by the police was also falsely stated by her.

Respondent’s Contentions

It was contended by the Respondent that the orders passed by the authorities were considered decisions and the writ court in exercising jurisdiction under Article 226 of the Constitution of India, cannot interdict the findings of fact finding authorities. The counsel for the respondent placed reliance on the authority in B.C. Chaturvedi v. Union of India and others[2] and submitted that in a judicial review, the court may interfere only when the authority as conducted the proceeding in a manner inconsistent with the rule of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the Disciplinary Authority is based on no evidence.

Re-appreciation of evidence and nature of punishment is best left to the Appellate Authority and only when the conclusion, upon consideration of the evidence reached by the Disciplinary Authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.

Observations of the Court

The court observed that the Victim had changed her stance from time to time, her statement that the Petitioner touched her from the back could not be relied upon. Even if it is held that the Petitioner touched the shoulders of the Victim from the back, it was only for the purpose of restraining her from copying in the examination and there was no sexual/criminal intent on the part of the Petitioner in doing so.

The Court noted that the compromise petition filed by the Victim and the Petitioner cannot be termed as a contract instead it clearly demonstrates that the Petitioner is innocent and the complaint was falsely lodged against him by the Victim. The fact that the Victim was not inclined to proceed with the case further and sought discharge of the Petitioner therefrom, did not impede her filing the compromise petition jointly with the Petitioner before the learned Trial Court.

It was also observed that the witnesses that were examined by the Disciplinary Authority neither corroborated the allegations made against the Petitioner nor the unrest/agitation made against the Petitioner over the alleged incident. The further also noted that the Victim though had initially stated in her evidence that she was molestated by the Petitioner and then subsequently retracted from her earlier evidence and stated that the Petitioner had only touched her shoulder from the back while she was copying in the examination.

The Court observed that the act of touching shoulders of the Victim by the Petitioner from behind for the sole purpose of restraining her from copying in the examination cannot be said to have any sexual flavor. the observation was made considering the version of Victim who also stated that the Petitioner held her shoulders when she was copying in the examination without even indicating that the said touch was with sexual intent or inappropriate.

The Rule of Preponderance of Probability

The Court noted that the CAT reiterated the observations made by the Disciplinary Authority as well as the Appellate Authority. No independent consideration as made by the CAT in adjudicating the legality and correctness of the orders. The Court further remarked that since the disciplinary proceedings are quasi criminal in nature, preponderance of probability should be based on some evidence on record while referring to the observations of the Hon’ble Supreme Court with the standard of proof in departmental inquiry regarding sexual harassment complaint as recorded in the authorities in Nirmal Jhala v. State of Gujarat and another,[3] and M.V. Bijlan v. Union of India and others.[4] The same was reiterated in the case of Apparel Export Promotion Council v. A.K. Chopra,[5] that there has to be some evidence before the inquiry officer for it to come to the conclusion that the allegations made are true.

The Disciplinary Authority in the present case had awarded penalty upon the Petitioner though there was no evidence at all against him. There was not an iota of evidence on record that suggested misconduct on the part of the Petitioner. Thus, the Court held that the decision of the authorities was based on no evidence at all and no misconduct resulting in violation of the service rules was substantiated against the Petitioner.

Whether Judicial Review amounts to Appeal?

The Court iterated that a judicial review is not an appeal and in exercising extra jurisdiction under Article 226 of Constitution of India, the Court is not empowered to sit in appeal against the impugned orders and can only review the decision making process. On that, the Court relied on the decision of the Supreme Court in the case of B.C. Chaturvedi v. Union of India and Others, [6] wherein it was held that the court may interfere when the conclusion or finding reached by the disciplinary Authority s based on no evidence.

Decision of the Court

The inquiry report as well as the orders passed by the disciplinary Authority, The Appellate Authority and the Tribunal were set aside/quashed and were directed to reinstate the Petitioner in service with full back wages as well as other consequential benefits to which the Petitioner was entitled. The Petitioner was also awarded a cost of Rs. 10,000/- to be paid by the Respondent Authorities.

[1] OA No. 351/1539/2021

[2] (1995) 6 Supreme Court Cases 749

[3] (2013) 4 SCC 301

[4] (2006) 5 SCC 88

[5] LPA No. 297 of 1997

[6] (1995) 6 SCC 749

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