POSH Act Applicable To Girl Students Of A School: Calcutta HC

While pulling apart the curtains, the Calcutta High Court in a learned, laudable, landmark and latest judgment titled Pawan Kumar Niroula Vs Union of India and others in WP.CT86 of 2021 and 2022 LiveLaw Cal (15) that was delivered finally on January 24, 2022 spelled out explicitly that the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (2013 Act) is applicable to girl students of a school. It must be noted that the Court rejected the contention of the school that the 2013 Act will not be applicable to the aggrieved female students of the school. Very rightly so!

To start with, this commendable, cogent, composed and convincing judgment authored by Justice Rabindranath Samanta for a Bench of Kolkata High Court comprising of himself and Justice Harish Tandon first and foremost puts forth in para 1 that, “This writ petition has been preferred by the petitioner Pawan Kumar Niroula challenging the order dated 05.10.2021 passed by the Central Administrative Tribunal, Kolkata Bench( hereinafter be referred to as the Tribunal) in O.A. No. 352/09/SKM/2021.”

As we see, the Bench then points out in para 4 that, “The seminal question involved in this writ petition is as to whether the order of suspension inflicted upon the petitioner is sustainable in law and the committee constituted for summary trial pertaining to the allegations of sexual harassment against the petitioner has statutory force after enactment of The Sexual harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and amendment of relevant provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 in the light of the Act.”

To put things in perspective, the Bench then envisages in para 5 that, “The background facts as projected by the petitioner and which are necessary for adjudication may be adumbrated as under:

The petitioner is a teacher and he was appointed by the respondent Navodaya vidyalaya Samiti on 17.11.1997 as TGT(Trained Graduate Teacher)-Nepali. He was initially posted at Jawahar Navodaya Vidyalaya, North Sikkim. Later he was transferred to Bihar in the year 2006 and in the year 2007 he was again transferred to North Sikkim. Lastly, he was transferred to his present place of posting in the year 2011.

On 15.02.2020 the respondent no. 4, the principal, Jawahar Navodaya Vidyalaya, Ravangla, South Sikkim made a written complaint with the Officer-in-Charge of Ravangla Police Station to the effect that he received complaints from several students of Jawahar Navodaya Vidyalaya against the petitioner alleging commission of sexual harassment (molestation) on 14.02.2020 and immediately thereafter, he set up an internal committee to enquire into the complaints. It was also stated in the complaint that around 67 students complained in writing with the said committee that they were personally harassed by the petitioner. On such allegations the principal requested the Officer-in-Charge of the police station to take appropriate legal action against the petitioner.

On the basis of the aforesaid complaint Ravangla Police Station Case No. 02 of 2020 dated 15.02.2020 under Section 10 of the Protection of Children from Sexual Offences Act, 2012 was registered against the petitioner for investigation. The petitioner was arrested by the Investigating Officer on 15.02.2020, but subsequently he was released on bail by the concerned Court.

The petitioner was not informed about any disciplinary action taken against him, but from unofficial sources he came to know that he was placed under suspension. However, in reply to an Email dated 11.06.2020 seeking information regarding his status as he intended to join his duties, the respondent no. 4 by communicating an order being No. PER.DP/NVS(SHR)/PK Niroula/6170 dated 16.02.2020 informed him that he was placed under suspension with effect from 15.02.2020 in terms of subrule (2) of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The petitioner being aggrieved by the order of suspension made an appeal before the Chairman of Navodaya Vidyalaya Samiti under Rule 23 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 on 10.07.2020, but he is yet to know about its fate.”

As it turned out, the Bench then discloses in para 6 that, “Initially, the order of suspension inflicted upon the petitioner was from 15.02.2020 and it was extended for a period of 90 days. Even during the pendency of the appeal preferred by the petitioner before the Chairman of the said Samiti, the order of suspension was extended for an another period of 90 days. Subsequently, such suspension order was further extended for another term of 90 days and ultimately it was extended up to 10.02.2021.”

Notably, the Bench then points out in para 12 that, “What we find from the documents on record, the order of suspension made on 16.02.2020 was extended from time to time and finally it was extended till 10.02.2021. Amid such continuing suspension, the respondent school authorities by an order dated 16.06.2020 constituted the committee for summary trial to enquire into the allegations of sexual harassment against the petitioner.”

Quite remarkably, the Bench then hastens to add in para 15 that, “In view of the law declared by the Hon’ble Apex Court in the case of Ajay Kumar Choudhary supra, the order of suspension exceeding 90 days without any justifiable ground is vitiated with illegalities. It is not in dispute that the petitioner preferred an appeal against the order of suspension under Rule 23 of CCS CCA Rules on 09.07.2020, but, the authority turned deaf ear to the appeal. Such acts on the part of the concerned respondent authority reek of malafides. Under such factual matrix, the order of suspension which is illegal ab initio and its extension did not conform to the legal principles enunciated by the Hon’ble Apex Court in the decision of the Ajay Kumar Choudhary supra is liable to be quashed.”

Be it noted, the Bench then enunciates in para 19 that, “In order to implement section 4 of the Act in letter and spirit and to make the internal complaints committee viable and independent the Hon’ble Apex Court in a recent decision in the case of Punjab and Sind Bank and Others –Vs- Durgesh Kuwar reported in (2020) SCC Online SC 774 has observed at paragraph 22 that clause (c) of Section 4 (2) indicates that one member of the internal complaints committee has to be drawn from amongst a non-governmental organisation or association committed to the cause of women or a person familiar with issues relating to sexual harassment. The purpose of having such a member is to ensure the presence of an independent person who can aid, advise and assist the committee and thereby it obviates an institutional bias.”

It is also worth noting that the Bench then specifies in para 20 that, “The committee in question for summary trial as constituted by the respondent school authorities comprises the following members:
1. Shri Vikram Joshi, D.C(Pers), NVS, Hqrs.,Noida Convenor
2. Shri N. Haribabu, AC, NVS, RO, Shillong- Member
3. Smt. Sarita, AC, NVS, RO, Lucknow – Member

21. As discussed above, it is axiomatic that the committee so formed by the respondent school authorities cannot be termed as an internal complaints committee as envisaged under the provisions of Section 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Though the committee was constituted in terms of the notification dated 20.12.1993 issued by Navadaya Vidyalaya Samiti, but, the committee dehors of the fundamental legal requirements under Section 4 of the Act, has now lost its statutory force.”

Quite significantly, the Bench then holds in para 27 that, “In view of the legal position as above, the committee constituted for summary trial without adhering to the mandatory requirements of the law and the rules as quoted above loses its legal force. Therefore, viewed from all aspects, the impugned order passed by the Learned Tribunal holding the legality of the committee for summary trial is not sustainable in law.”

As a corollary, the Bench then holds in para 28 that, “Therefore, in view of the observations as above, the question as raised for resolution is answered in the negative.” As an inevitable consequence, we then see that the Bench then holds in para 29 that, “In the result, the writ petition succeeds.”

Furthermore, the Bench then holds in para 30 that, “The impugned order dated 05.10.2021 passed by the Learned Central Administrative Tribunal, Kolkata Bench in O.A.No. 352/9/SKM/2021 is hereby set aside. The Tribunal application being No. O.A.No. 352/9/SKM/2021 is allowed.”

Going ahead, the Bench then directs in para 31 that, “The order of suspension against the petitioner vide order dated 16.02.2020 made by the respondent no. 4 and extended from time to time and the order dated 16.06.2020 by which the committee for summary trial was constituted are hereby quashed.”

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