Touching A Student’s Shoulder From Behind To Restrain Her From Copying In An Exam Is Not Molestation: Calcutta HC

The disciplinary authority in the matter had held that the petitioner committed gross misconduct unbecoming of a Government servant in as much as he molested the class VIII girl student inside the class room during school hours.

Accordingly, while holding that the decision taken by the Disciplinary Authority, subsequent decisions of the Appellate Authority and the Tribunal and also the inquiry report on the basis of which the orders were passed suffer from the laches, a bench of Justice Suvra Ghosh and Justice Subhendu Samanta observed, “Restraining the victim from copying in the examination by touching her shoulders from behind can under no stretch of imagination be termed as misconduct, moreso, 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”.

Advocate Anjili Nag appeared for the petitioner, and Advocate Shatadru Chakraborty appeared for the respondent.

In the present case, the writ petition challenged an order passed by the Central Administrative Tribunal on August 18, 2018 whereby the petitioner’s review application challenging major penalty of dismissal from service with penalty imposed by the disciplinary authority was rejected.

On the allegations made by a girl student of class VIII that the teacher had put his hand on her back and pulled the straps of her under garment , a departmental proceeding was initiated against the petitioner who was a primary school teacher at a Government School. The charge framed against the petitioner was proved to the extent that he had physically touched the student on her back which caused unrest among the students. The Disciplinary Authority, by an order passed on 28th February, 2012, held the petitioner guilty of the allegation and imposed major penalty of dismissal from service upon him. Subsequently, the Appellate Authority affirmed the order and a review petition was also rejected by an order dated 8th August, 2018.

As per the petitioner, the victim in her cross examination admitted that she was copying during the science test held on the date of incident and she had given false statement before the police on self defense as she was shocked, nervous and aggrieved as well as angry due to the act of the petitioner who had actually touched her shoulder from behind. Further that the unrest caused due to the alleged act of the petitioner has not been proved and 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.

However, the respondents while placing reliance on B.C. Chaturvedi v Union of India and others (1995) 6 Supreme Court Cases 749 submitted that the court, in a judicial review, may interfere only when the authority has 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. Further that reappreciation 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.

It is also to be noted that the Disciplinary Authority refused to accept a joint compromise between the petitioner and the student saying that a minor is not competent to enter into a contract.

Noting the same, the bench thus observed, “The compromise petition filed by them cannot be termed as a contract. The compromise petition clearly demonstrates that the petitioner is innocent and the complaint was falsely lodged against him by the victim. Since the victim/complainant was not inclined to proceed 6 with the case any further and sought discharge of the petitioner therefrom, there was no legal impediment in her filing the compromise petition jointly with the petitioner before the learned Trial Court. The Trial Court decided not to deal with the merits of the case since the complainant herself submitted that she had lodged a false complaint and the petitioner was innocent”.

The bench had also noted the fact that the witnesses neither corroborated the allegations made against the petitioner, nor the agitation by the students following the alleged incident. It also note of the fact that the victim herself retracted her statement stating that the petitioner had only touched her shoulder from the back while she was copying in the examination as opposed to her statement that she was molested by the petitioner.

“In the case in hand, the act of touching the 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 flavour. So also is the version of the victim herself who has in no uncertain terms stated that the petitioner held her by her shoulders when she was copying in the examination. The victim has not for once indicated that the said touch was with sexual intent or inappropriate”, judgment read.

“Though the respondents have tried to impress upon the court that the petitioner has been penalized for misconduct and not molestation, the article of charge framed against the petitioner speaks otherwise. It says that the petitioner committed gross misconduct unbecoming of a Government servant inasmuch as he molested one girl student. In other words, the allegation of misconduct is solely on the anvil of the alleged act of molestation. Even in the order imposing major penalty of dismissal from service upon the petitioner which was concurred by the Appellate Authority and the Tribunal, it has been held that the charge against the petitioner has been proved, the charge being misconduct for 9 molesting the victim. Therefore, it is ultimately the alleged molestation which has been termed as misconduct on the part of the petitioner”, the bench further observed in the judgment.

Accordingly, the writ petition was allowed on the aforesaid terms.

Cause Title: Anil Kumar Mridha v. The Union Of India And Others

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