JUDEGMENT SUMMARY:
Pawan Kumar Niroula vs Union of India
DATE OF JUDGEMENT:
24th January 2022
JUDGES:
Harish Tandon, J.
Rabindranath Samanta, J.
PARTIES:
Pawan Kumar Niroula(Petitioner)
Union of India (Respondent)
SUBJECT
The Calcutta High Court holds that for the complaints of harassment made by girl students against teacher,POSH Act, 2013 should be applicable.
AN OVERVIEW
1. The petitioner was a teacher, appointed by the respondent Navodaya vidyalaya Samiti in 1997, posted initially in North Sikkim. He was transferred to Bihar and again back to North Sikkim. In 2011, he was posted in South Sikkim.
2. In 2020, the Principal of Jawahar Navodaya Vidyalaya, Ravangla, South Sikkim filed a complaint under Section 10 of POCSO Act against the petitioner on receiving complaints from several students (to be exact 67 student) alleging that the petitioner had harassed them sexually. The petitioner was arrested and kept in 24 hours of detention before being released on bail by the concerned Court.
3. Central Civil Services (Classification, Control and Appeal) Rules, 1965 were applied to the teachers of Jawahar Nabadaya Vidayalaya, Ravangla, South Sikkim. To begin with, the petitioner was suspended for a period of 90 days which was again extended for another term of 90 days.
4. According to the CCS (CCA) Rules, the school authorities had constituted a committee for summary trial for inquiring into the allegations that were levelled against the petitioner. The committee comprised of 3 members amongst whom only one was women and a man was the Convenor.
5. The petitioner had applied of the following reliefs from the Central Administrative Tribunal, Kolkata Bench:
a. An order which would direct the school authorities to allow him to join his duties
b. An order which would set aside the school authorities ‘decision to conduct summary trial.
c. An order which would set aside the school authorities ‘decision of his suspension and the extension of the same.
6. The Tribunal rejected the plea of the petitioner and allowed the school authorities to procced with their actions against the petitioned. The petitioner challenged the decision of the Tribunal by filing a writ petition in Calcutta High Court.
IMPORTANT PROVISIONS
Protection of Children from Sexual Offences (POSCO) Act 2012
- Section 10- Provides that the punishment for the commission of aggravated sexual assault is 5-7 years of imprisonment along with fine.
Prevention of Sexual Harassment of Women at Workplace (POSH) Act 2013
- Section 2 (a)- Defines “aggrieved woman” regardless of her age. In a workplace, if an “aggrieved woman” is someone who is sexually harassed by respondent. In a dwelling place or house, “aggrieved woman”is required to be employed there.
- Section 4- It provides for the establishment of an Internal Complaints Committee.
- Section 11- Provides for the inquiry into the complaint of Sexual Harassment.
ISSUES
The issues before the High Court were:
- Whether the petitioner's suspension order is legally enforceable?
- Whether the committee constituted for summary trial pertaining to the allegations of sexual harassment against the petitioner has statutory force?
ANALYSIS OF THE JUDGEMENT
1. The Rule 10 (2) (a) of the CCS (CCA) Rules provided that a government servant should be suspended by an order of appointing authority if they are detained in custody for a period exceeding forty-eight hours. The suspension order would come into effect from the day of government servant’s detention. The petitioner was detained in custody for 24 hours which resulted in the school authorities suspending him which was illegal as it violated the Rule 10(2) of the CCS CCA Rules.
2. In the Ajay Kumar Choudhary v Union of India, the Supreme Court in 2015 had held that the order of suspension exceeding 90 days without any justifiable ground was illegal. The petitioner was suspender for a period extending beyond three months without being served with any charge- sheet. A reasoned order was required to be passed for the extension of suspension of the petitioner.
3. The Supreme Court in Avinash Nagra v Navadaya Vidyalaya Samiti, 1996 had directed for the constitution of committee for summary trial to enquire into allegations of sexual harassment against any teacher. However, the legal scenario regarding sexual harassment complaints had changed after the Supreme Court’s decision in Vishaka v State of Rajasthan, 1997 and the enactment of POSH Act. In the Vishaka case, both public and private organizations have been directed to constitute an internal complaints committee to enquire into any complaint of sexual harassment made by any aggrieved woman.
4. The Section 2 (a) of POSH Act included even girl students of a school in its definition of “aggrieved woman”.Section 11 of the Act laid down certain rules for the constitution of Internal Complaints Committee:
a. The Presiding Officer has to a woman either from the same workplace or from different workplace with the same employer.
b. Two members are required to be either committed to the cause of women or have experience in social work/ have legal knowledge
c. One member should be from non-governmental organizations or association
d. At least one-half of the total members should be women.
The committee constituted for summary trial was not in coherence with the provision laid down by the POSH Act and had no statutory force.
CONCLUSION
Calcutta held that the impugned order of Tribunal which had held the legality of the committee for summary trial was not sustainable in law. Tribunal’s order was set aside and the suspension order against the petitioner along with the committee constituted for summary trial was quashed. Direction was given to the school authorities to allow the petitioner to join his duties within a month and paying him all his wages within two months from the day of his joining.
Click here to download the original copy of the judgement
