Act Of Sexual Harassment By Teachers Is A Serious Offence And Abuse Of A Position Of Power: Delhi HC
The Delhi High Court observed that an act of sexual harassment towards a student by a teacher is a serious offence and an abuse of power.
The Court partly allowed the Petition challenging the order and a memo directing the Respondent college to pay complete salary and other benefits.
The Court noted that parents entrust their children with the expectation of a safe and supportive environment guided by teachers and therefore misuse of this authority must be prevented at all costs.
The Bench of Justice Chandra Dhari Singh observed, “parents of such students send their children away from their homes in the hope that their children would be in a safe and conducive environment under the guidance of their teachers, however, the act of sexual harassment by teachers has witnessed a widespread occurrence which is a serious offence and abuse of a position of power”.
Advocate Vishwendra Verma appeared for the Petitioner and Advocate Beenashaw N. Soni appeared for the Respondent.
The petitioner, an Assistant Professor at the University of Delhi, filed a petition under Articles 226 and 227 of the Constitution, seeking to overturn an order and a memo demanding repayment of overpaid salary and confirming compulsory retirement. Allegations of sexual harassment led to the petitioner being placed on leave and later recommended for suspension and compulsory retirement. The petitioner disputed the salary deduction and retirement decision, arguing that no approval was granted for suspension or retirement, and he should receive full salary and allowances. The respondent claimed the petitioner was overpaid and demanded repayment. Rejected representations prompted the petitioner to file the petition.
The Court framed the following issues: “i. Whether the order dated 4th March, 2020 and the audit memo dated 20th January, 2020 suffer from any illegality?
ii. Whether the petitioner is entitled to receive full salary and increments?”
The Court examined the legality of the orders dated March 4, 2020, and the audit memo dated January 20, 2020, concerning an alleged overpayment to the petitioner. The audit revealed the alleged overpayment of Rs. 6,42,131/- and stated that the petitioner was only entitled to subsistence allowance from February 2020 onward due to the recommended suspension. The petitioner's main complaint was that despite never being formally suspended, the recovery memo was issued to him. Suspension, defined as being barred from work, requires approval from the Vice-Chancellor, which the petitioner's suspension lacked until December 18, 2020. The law mandates prior approval for suspension, and since the petitioner's suspension was not approved by the Vice-Chancellor, the college cannot reclaim the overpaid amount. Therefore, issue no. (i) is decided in favour of the petitioner.
In this case, the Bench observed that the petitioner was recommended for suspension due to sexual harassment complaints against him. The college informed him of this through a letter dated March 9, 2018, stating he would be placed on forced leave from February 6, 2018, to ensure safety for the complainant and other female students. However, this suspension was not approved by the Vice-Chancellor as of March 4, 2020. It was only approved on December 18, 2020, as evidenced by a letter from the Vice-Chancellor.
The Bench emphasized the law regarding the necessity of appropriate approval for suspension while referring to the case of Supdt. Of Police, Manipur and Ors. v R.K. Tomalsana Singh (Dead), [AIR 1984 SC 535]. The Court noted, “that if the provisions of a particular rule or a statute require an act to be done in a certain manner, then, the said act is to be done in that manner or not done at all. Therefore, when there is no power with the governing body to suspend a person and prior approval of the Vice-Chancellor is needed for this purpose, there cannot be said to be any power with the governing body to force a person to go on leave and not to take work from him/her which has the effect of "suspending the person”.
The Court said that an individual can only be suspended upon approval from the Vice-Chancellor. While the Governing Body can propose suspension, the final authorization rests with the Vice-Chancellor. Since the petitioner's suspension lacked this necessary approval initially, any overpaid amount to the petitioner during this period cannot be reclaimed. Consequently, as the suspension only became valid after the Vice-Chancellor's endorsement on December 18, 2020, any payment made to the petitioner before this date remains unrecoverable. Additionally, the order to pay subsistence allowance to the petitioner prior to December 18, 2020, holds no relevance due to the absence of approved suspension during that period. Hence, the Court ruled in favour of the petitioner regarding issue no. (i).
The Court addressed the issue (ii), noting that the petitioner received increments based on their PhD degree, and additional increments for holding an M.Phil degree cannot be added to those for a PhD. Regarding travel allowance (TA), it's argued that it's applicable only for employees attending college for at least one day in a calendar month, and the petitioner was paid double TA until they attended college on February 6, 2018. Records submitted by the respondent college show that all dues of the petitioner were settled up to February 2018 when their forced leave began, so they were not entitled to further TA or Dearness Allowance. Additionally, government regulations dictate that TA is not payable during leave or suspension. Therefore, since all dues were cleared by February 2018, there's no need for further adjudication on this issue, and issue no. (ii) is resolved.
“A relationship between a student and a teacher is one of the most pious relationships in the world. A teacher is not only a person who teaches in a classroom but one who encourages and inspires the students to become a holistic person”, the Bench noted.
The Court held that the respondent college cannot reclaim the overpaid amount because it was disbursed before his suspension was sanctioned by the Vice-Chancellor. While the petitioner may be eligible for subsistence allowance, when his suspension was approved, the overpaid sum cannot be retrieved. Furthermore, the petitioner was deemed ineligible for specific increments and travel allowance due to his forced leave beginning in February 2018.
Accordingly, the Court partly allowed the Petition and set aside the order, and the audit memo, but denied the Petitioner’s plea requesting increments.
Cause Title: Dr. Amit Kumar v Bharati College (2024:DHC:1060)
Appearance:
Petitioner(s): Advocates Vishwendra Verma, Shivali and Archit Verma
Respondent(s): Advocates Beenashaw N. Soni, Mansi Jain and Ann Joseph
