Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: M Nagaprasanna J. denied relief to a teacher (‘petitioner’) seeking  quashing of  the proceedings registered alleging offences punishable under Sections 323, 342, 109 of the Penal Code, 1860 (‘IPC’) and Sections 11 and 12 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO’). The Court, on perusing the complaint and statement under Section 164, Criminal Procedure Code held that the matter demands proper trial as prima facie ingredients of offences alleged are met.

The complaint was filed by a mother of the victim child alleging that the petitioner- teacher had indulged in beating the child, who was 5 years old, intermittently locking her in a dark room and letting her out after 2 minutes, traumatizing the child and removing the pants of the child along with other children, which would reveal the body of the child, all these as a measure of punishment.

Relevant parts of the complaint are as under:

It all started with physical punishment for my daughter who is studying in Nursery, East Wood High School, Ulsoor. Each morning started with her crying & requesting me not to send her school. At first I ignored her as I thought maybe she needs time to adjust in her new school. But later when I ask her the reason of her daily crying, she told that her class teacher used to beat her regularly. So I requested her class teacher not to beat her. But after giving here three more chances to stop beating, she continues to beat my child as well the other children. Then I decided to complain to Principal & her initial statement was “No we don’t beat any kids here as beating is ban in school” but her last sentence was “A teacher doesn’t have any other way to instill discipline other than beating”.

Instead of beating, they came up with new way of punishment. Pulling down the pants of kids forcefully & making the rest of the class taunting “shame-shame puppy shame” and the next part is threatening them that they will be taken to one dark room where one dog is kept & it will attack their private parts.

The Court noted that the statement recorded by the child under Section 164, Criminal Procedure Code  narrates horrendous acts of the petitioner upon the child and if the complaint and the statement is read in tandem, it would demonstrate that the ingredients of offences punishable under Sections 323, 342, 109 Penal Code, 1860 are clearly met, insofar as the offences relating to sexual harassment on the child, as what is invoked in Sections 11 and 12 of the POCSO Act, 2012.

The Court further noted that Section 11(2) POCSO Act mandates that, a person who makes the child exhibit his body or any part of his or her body so as it is seen by any other person, it would amount to sexual harassment under Section 11 POCSO Act and become punishable under Section 12 of the POCSO Act.

Thus, the Court remarked “The allegation is that, the petitioner has removed the pants of the child before other students and staff, which has led to the offence so alleged. It is for the petitioner to come out clean of the acts that are narrated in the complaint.”

The Court observed that traumatizing children by teachers as a measure of punishment particularly at tender ages, would have a devastating psychological impact on the child. Children who experience aggressive behavior or violence from the hands of a teacher often develop emotional and behavioral problems; their cognitive skills diminish and would have far reaching consequences in the psychological blend of a child and would negatively impact the academic performance of the child. The aggression of whatever means of any teacher on the child is unpardonable.

Thus, the Court denied relief to the petitioner-teacher holding that the act of the petitioner upon the child has become an offence punishable under Section 12 of POCSO Act, 2012 for the ingredients of Section 11(2) POCSO Act and such act unless otherwise proven by the petitioner in a full blown trial, is undoubtedly uncouth, unpardonable and unbecoming for a teacher who deals with a girl child of the age of 5 years.

[Thahseen Begum v State of Karnataka, WP No.12097 of 2022, decided on 28-07-2022]


Advocates before Court

For Petitioner- Advocate Sirajuddin Ahmed

For respondent- Advocate K S Abhijith


*Arunima Bose, Editorial Assistant has reported this brief.

 

 

Calcutta High Court
Case BriefsHigh Courts

   

Calcutta High Court: The Division Bench of Subrata Talukdar and Krishna Rao, JJ. has allowed an appeal filed against the order passed by the Single Judge wherein he had refused to interfere with the order of transfer issued against the appellant by the Chairman, North 24 Parganas District Primary School Council.

The appellant was initially appointed as Assistant Teacher of Primary School on 25-12-1998. On 07-10-2021 the appellant was transferred to Beraberi F.P. Primary/Junior Basic School under Habra Circle aggrieved by which appellant had preferred a Writ Application and the Single Judge had passed an order of stay and directed the DPSC North 24 Parganas to file report specifying the reasons of such transfer and accordingly, the District Inspector of School had filed a report before the Single Judge and after considering the report, the order of transfer was set aside.

After the order passed by the Single Judge, the Chairman issued an order of transfer of the appellant on 24-12-2021 by transferring the appellant to Subhasnagar F.P. School under the same circle. Being aggrieved with the order of transfer, the appellant had preferred a writ application and the Single Judge had dismissed the writ petitioner which is impugned in the instant appeal.

Counsel appearing on behalf of the appellant by referring to the West Bengal Primary Education (Transfer of Teacher including Head Teacher) Rule, 2002 submitted that the District Primary School Council may either on its own motion or on an application from a teacher can transfer an approved teacher within its jurisdiction from one Primary School to another Primary School.

The Court noted that in the present case the Chairman has invoked the authority of the Council by transferring the appellant from one school to another School, which is not permissible under law. Rule 4 specifically authorized the council to transfer an approved teacher and in the instant case admittedly the Chairman had issued the order of transfer and North 24 Parganas District Primary School Council never took any decision for transfer of the appellant. The Court thus held that the impugned transfer order can’t sustain in the eyes of law.

The Court while allowing the appeal was of the opinion that the Chairman, North 24 Parganas District Primary School Council did not have the authority or jurisdiction to issue the impugned transfer order to the appellant. The appellant had already joined the transferred post without prejudice to her right and contentions thus, she was directed the respondent council to allow the appellant to resume her duties at Barasat Mahatma Gandhi G.S.F.P. School No.1 under Barasat West Circle where she was discharging her duties before.

[Dipika Bala Biswas v. State of West Bengal, MAT 3 of 2022, decided on 05-08-2022]


Advocates who appeared in this case :

Joytosh Majumdar and Shamim-ul-Bari, Advocates, for the Appellant;

Jahar Datta and Milon Kumar Maity, Advocates, for the State;

Arabinda Chatterjee, Bhaskar Prasad Vaisya and Pinaki Bhattacharyya, Advocates, for the DPSC North 24 Parganas.


*Suchita Shukla, Editorial Assistant has reported this brief.

Karnataka High Court
Case BriefsHigh Courts

Karnataka High Court: H.P. Sandesh, J. allowed the petition and granted bail to the petitioner in connection with a crime registered in  Magadi Police Station, Ramanagara District, for the offence punishable under Sections 8 and 12 of the POCSO Act.

The factual matrix of the case of the prosecution is that this petitioner is a PT teacher and he misbehaved with a student who is studying in 10th standard and he had indulged in the same act when she was in 8th and 9th standard also. When the victim girl was unable to tolerate the act of this petitioner, a complaint was given to the Principal of the school and pursuance of the said complaint, the Principal of the school had lodged the complaint and case has been registered under Sections 8 and 12 of POCSO Act. This petition is filed under Section 439 of CrPC. seeking regular bail of the petitioner in a crime registered at Magadi Police Station, Ramanagara District, for the offence punishable under Sections 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short).

Counsel for the petitioner submitted that the petitioner is aged about 55 years and the complaint discloses that there was a delay in lodging the complaint and afterthought only a false complaint is lodged and no such complaint is filed earlier and investigation has already been completed and the petitioner has been in custody from last two months. The maximum punishment for the said offence is five years and hence he may be enlarged on bail subject to conditions.

Counsel for the respondent-State submitted that the complainant immediately has not lodged the complaint. When the victim girl brought to the notice of the friends, the friends told her to lodge a complaint with the Principal and accordingly the complaint is lodged and statement under Section 164 CrPC of the victim was also recorded before the Court wherein also she has reiterated the very act of the petitioner.

The Court observed that particularly the complaint given by the Principal, specific allegation is made against the petitioner that this petitioner had indulged in committing of the offence under Sections 8 and 12 of the POCSO Act and the fact that the victim girl is a student of this petitioner is not in dispute. However, having taken note of the punishment provided for the said offence is for a period of maximum five years and the petitioner is in custody from last two months and investigation has already been completed and charge-sheet is also filed, hence there is no need of custodial trial and the matter requires to be decided in trial.

The Court held “it is appropriate to exercise the powers under Section 439 of Cr.P.C. with conditions.” [N R Sugandaraju v. State of Karnataka, Criminal Petition No. 2917 of 2022, decided on 17-05-2022]


Appearances

For Petitioners- Mr. IS Pramod Chandra

For respondents- Mr. KS Abhijith and M Somashekhara


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Calcutta High Court: Abhijit Gangopadhyay, J. took up a writ application which was filed praying for publishing fair and transparent merit list of Assistant Teachers in 1st State Level Selection Test 2016 (classes IX and X) in terms of 2016 Rules of recruitment including the waitlist disclosing the breakup and segregation of marks; for uploading the online application forms of the candidates in respect of 1st State Level Selection Test 2016 (Class IX and X); disclosure of the letters of appointments and to consider the candidature of the petitioner.

In the petition itself the petitioner has come up with material particulars taking responsibility of 27 instances showing how illegal appointments have been made in the post of Assistant Teachers for classes IX and X. In his matter, the Court also acknowledged one supplementary affidavit  which revealed a notice of a second meeting of the committee constituted by the School Education Department, Government of West Bengal and the Court was extremely surprised that there were at least two or more than two meetings of the said committee whereas Dr. Santi Prasad Sinha, the advisor of the Commission and convenor of the five member committee in other matters having similar allegations of corruption in appointment in the posts of assistant teachers by the School Service Commission said time and again that there was no meeting of the said 5 member committee.

Mr Kishore Datta, senior advocate appearing for the Commission, has made elaborate submission and stated that as the application has been filed much late, if some time – say one month – was given to the State to undone all the mistakes or errors, the petitioners would not suffer. He also said that a committee may be formed by keeping the Principal Secretary of the Education Department or by keeping the Chairman of the School Service Commission for enquiring into this allegation.

Advocate for the State, Mr Bhaskar Prasad Vaisya, adopted the submission of Mr Datta and had submitted further that though it was found from the said notice of Dr. Sinha that he called a meeting and that the meeting was to be held in the chamber of the Personal Secretary to the Hon’ble MIC of the Department it cannot be said that the MIC was inverted in it.

The Court was of the view that whether the then MIC knew about such meeting or not or any other thing as to the corrupt practice in such appointment is a matter to be investigated by the Central Bureau of Investigation and they are given a freehand to interrogate any person they think fit to unearth the corruption in the appointment in government aided schools scam whatever be his social or political status.

The Court was not ready to accept such submission that government wanted some time to cure illegalities in the matter as time was running out. The Court was utterly shocked by the deliberate false statement made by Dr. S. P. Sinha which had been exposed from the annexure of the supplementary affidavit which showed that he was trying to cover up some facts unfavourable to him and his aides.

From the particulars in the writ application the Court was satisfied that illegalities have been made in appointment of Assistant Teachers and accordingly directed the Reginal head of CBI to investigate the matter and to interrogate Dr. Santi Prasad Sinha specially and other members of the committee again. Matter has been listed for further hearing on 08-04-2022.[Anindita Bera v. State of Bengal, 2022 SCC OnLine Cal 717, order dated 07-04-2022]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Manipur High Court: Lanusungkum Jamir, J. allowed a petition pertaining to appointment/promotion of High School teachers.

Petitioners along with respondent  3, 4, 5, 6 and 9 were elected as members of the Management Committee of the Sakhi Devi Girls High School in the General Body Meeting held on 24-10-2013. The Zonal Education Officer/Zone-1, Government of Manipur vide order dated 26-12-2013 approved the formation of the School Management Committee. Petitioner 1 submitted an objection to the ZEO, Zone-1 on 26-12-2013 against the inclusion of respondent 5 and 6 as members of the School Management Committee on the ground that respondent 5 is involved in a criminal case and respondent 6 cannot be a local educationist in as much as he was not a local resident of Uripok Constituency wherein the Sakhi Devi Girls’ High School was located.

During the pendency of objection filed by petitioner 1, the first meeting of the members of the School Management Committee of Sakhi Devi Girls’ High School, for conducting election of the President and Secretary of the School Management Committee was held on 26-02-2014 comprising of only 5 (five) members and in the absence of the petitioner and another four members. Respondent 5 and 6 were elected as Secretary and President of the School Management Committee and one Smt R.K. Sanajaobi Devi, an Unapproved Teacher of the School was recommended as teacher representative in the School Management Committee (SMC).

Against the said election of the President and Secretary of the SMC, the petitioner submitted representations to the concerned authority. However, the said representations were not considered. In the meantime an emergency meeting of the SMC of Sakhi Devi Girls’ High School was held on 21-02-2015 at the residence of the President of the SMC. Another meeting of the members of the SMC and Staff Members of the Sakhi Devi Girls’ High School was held on 23-7-2016.

On the basis of the resolution passed in the meeting of the SMC held on 21-02-2015and 23-7-2016, the Secretary, SMC issued order dated 10-10-2016 appointing/promoting the respondent 7, 8, 9 and 10 as temporary teachers at Sakhi Devi Girls’ High School.

The petitioner submitted several representations to the concerned authority and the State Government including representation dated 5-12-2016 addressed to the Director of Education, Government of Manipur, the Additional Director, Education (S)/V, Government of Manipur and the ZEO, Zone-I, Government of Manipur, requesting to cancel the promotion/appointment order of the respondent 7 to 10. However, no action was taken by the respondents. Petitioners challenged the order dated 10-10-2016 issued by the Secretary, School Management Committee, Sakhi Devi Girls’ High School, Uripok Imphal.

Rule 14 (b) of the Rules of 1975 provides that all resolutions passed at the emergency meeting will be subject to confirmation or revision at the next ordinary meeting, none of the respondents, either the State or the respondent 3 to 10 has brought on record that the resolution passed in the emergency meeting held on 21-02-2015 was confirmed or revised in the next ordinary meeting. Resolution passed in the Emergency Meeting held on 21-02-2015 being without quorum and not confirmed in the ordinary meeting, cannot be held to be valid. No action was passed in the emergency meeting held on 21-2-2015. In absence of quorum, any resolution passed in the SMC meeting held on 23-07-2014, cannot be accepted by this Court.

Court considered the letter dated 19-11-2018 produced by the Government Advocate. Admission by the official respondents that the Secretary, SMC was not empowered to convene an emergency meeting. It was stated that the Secretary had convened meeting under the instruction of the President of the SMC and was also chaired by the President. The issue was to convene the meeting under Rules of 1975 and not under whose instruction the meeting was convened and who chaired it.

Impugned order dated 10-10-2016 passed by the Secretary, SMC, Sakhi Devi Girls’ High School, Uripok, Imphal, appointing/promoting the respondent7, 8, 9 and 10 as temporary teachers of Sakhi Devi Girls’ High School (Aided) and also the order dated 10-10-2016 issued by the ZEO, Zone-I approving the order dated 10-10-2016 issued by the SMC, Sakhi Devi Girls’ High School (Aided) were set aside and quashed. The writ petition was allowed.[Nameirakpam Nodiachand Singh v. State of Manipur, 2022 SCC OnLine Mani 102, decided on 08-02-2022]


Mr A.Bimol and Mr A.Golly, Advocates for petitioners

Ms Sundari, GA & Mr Kh.Binoy, Advocates for respondents


Suchita Shukla, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: While explaining that inflicting corporal punishment on a Child by a parent or teacher is forbidden, Dr Kauser Edappagath, J., observed that,

“Hurt of a less serious crime is not forbidden when inflicted in the reasonable chastisement of a child by a parent or by a school teacher.”

A criminal revision petition had been filed by the sole accused on the file of Lower Court under Sections 397 read with 401 of the Code of Criminal Procedure challenging the charge framed against her.

Background

Accused/Revision Petitioner was the class teacher of Standard VI and de facto complainant was a student in the same class. The 4th respondent was his father.

It was stated that due to enmity towards 3rd respondent for the delay in taking out a textbook, the revision petitioner attempted to beat him with the intention to cause hurt, with a cane, but 3rd respondent suddenly turned his face up, the butt of the same touched his right eye corneal and thus the revision petitioner committed the offences punishable under Section 324 of the Penal Code, 1860 and Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000.

Lower Court opined that there was ground for presuming that the revision petitioner had committed the offence and framed charge against her under Section 324 of the Penal Code, 1860 and Section 23 of the JJ Act.

The instant revision petition was preferred challenging the above.

Analysis, Law and Decision

Expressing that, A prima facie case against the accused is said to be made out when the probative value of the evidence on all the essential elements in the charge taken as a whole is such that it is sufficient to induce the Court to believe in the existence of the facts pertaining to such essential elements or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts existed or did happen, High Court stated that at the stage of consideration of an application for discharge, the Court is required to consider whether there are sufficient grounds to proceed against the accused.

The broad test to be applied in the present matter is whether the materials on record, if unrebutted, makes a conviction reasonably possible. [State of Bihar v. Ramesh Singh, (1977) 4 SCC 39; Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4; Dilawar Babu v. State of Maharashtra, (2002) SCC 135; Sajjan Kumar v. CBI, (2010) 9 SCC 368; State v. A. Arun Kumar, (2015) 2 SCC 417; Mauvin Godinho v. State of Goa, (2018) 3 SCC 358; and State v. S. Selvi, (2018) 3 SCC 455].

From the catena of decisions, the principle that can be culled out is that, “if evidence, which the prosecution proposed to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by defence evidence, if any, cannot show that the accused has omitted the offence, then there will be no sufficient ground for proceeding with the trial.”

What led to the present case?

In the case at hand, the revision petitioner being the class teacher tried to bring the noisy class into silence and discipline by making a cane sound, beating it on the table.

Further, she stated that, when all the students sat silently and properly, the 3rd respondent alone was sitting under the bench looking for something. Seeing this, she with bonafide intention to call the attention of the 3rd respondent to the class, without the intention to beat him or cause hurt to him, tried to touch his right-hand elbow portion with the cane. Simultaneously the cane butt touched his right eye corneal portion gently. 

“Parents at home and teachers at school are most important influences in one’s life.”

High Court expressed that, “Paddling children or inflicting disproportionate corporal punishment on them either by a parent or a teacher is, no doubt, forbidden.” 

As per Section 17 of the Right of Children to Free and Compulsory Education Act, 2009 no child shall be subjected to physical punishment or mental harassment.

“Hurt of a less serious crime is not forbidden when inflicted in the reasonable chastisement of a child by a parent or by a school teacher to whom the parent has delegated or is deemed to have delegated his authority.”

In Court’s opinion, a teacher who without malicious intention administers a moderate and reasonable force to a pupil to enforce discipline in classroom/school cannot be exposed to criminal prosecution or fastened with penal liability.

The cane used by the teacher was used in the ordinary course to control noisy class so as to maintain discipline. Hence the same cannot be considered a dangerous weapon. In order to attract Section 234 of OPC, hurt by means of dangerous weapons should be caused voluntarily.

The case record revealed that the teacher had no intention at all to cause hurt to the 3rd respondent.

With regard to ‘assault’ under Section 351 IPC, it was nothing more than a threat of violence exhibiting an intention to use criminal force and the ability and intention to carry out the threat into execution. The prosecution records did not disclose that the revision petitioner did make or express any words or gesture to threaten the 3rd respondent. 

Nothing on record depicted that the teacher caused any mental strain to the 3rd respondent.

High Court held that, revision petitioner’s act could not be said to be with malicious intention to cause hurt to the 3rd respondent. The facts revealed that she exercised her authority reasonably and in good faith and the prosecution allegations, even if admitted as true in their entirety, would not make out offence either under Section 324 of IPC or under Section 23 of the JJ Act.

Therefore, the revision petitioner was discharged, and the criminal revision petition stood allowed. [Jaya v. State of Kerala, 2022 SCC OnLine Ker 544, decided on 24-1-2022]


Advocates before the Court:

For the Petitioner:

BY ADVS.

          SRI.T.K. SASINDRAN

          SRI.T.S. SHYAM PRASANTH

For the Respondent:

BY ADV SRI.K.I.SAGEER

Case BriefsSupreme Court

Supreme Court: The Division Bench of M.R. Shah and B.V. Nagarathna*, JJ., held that the action of the selectively applying the proviso to Rule 25(a) in relation  to one person, while not applying the said proviso in relation to similarly situated persons, is arbitrary and therefore illegal. The Bench stated,

“We accept the settled position of law that the rule applicable in matters of determination of pension is that which exists at the time of retirement, we are unable to find any legal basis in the action of the respondent University of selectively allowing the benefit of Rule 25 (a).”

Factual Matrix

The appellant joined as a Lecturer in the School of Legal Studies in Cochin University of Science and Technology on 07-09-1984. Prior to such appointment, the appellant was a lawyer practising in the District Court and Subordinate Courts and High Court of Kerala. The appellant made a representation before the Registrar of the University, requesting to reckon his practice of eight years at the Bar for the purpose of determining his pensionary benefits payable to him on his superannuation as provided under Rule 25 (a), Part III of Kerala Service Rules.

The respondent rejected the request of the appellant on the ground that the proviso to Rule 25 (a), Part III, KSR provides that the benefit under Rule 25 (a) would be available only to such employees who are recruited when practising at the Bar, to those posts requiring a qualification in law and experience at the Bar. Therefore, the respondent opined that since experience at the Bar was not essential for appointment to teaching posts at the University, the question of reckoning previous experience at the Bar would not arise in relation to the appellant.

The appellant stated in his appeal petition before the Chancellor that the proviso to Rule 25 (a), Part III, KSR was inserted in said Rule with effect from 12th February 1985. The appellant contended that the proviso could not be made applicable to him as the same was not in force as on the date on which he joined service at the respondent University. On the other hand, the respondent maintained that the Government or any other statutory body has the right to modify the service conditions, even retrospectively. The respondent further stated that since the proviso was introduced in Rule 25 (a) while the appellant was still in service, the proviso would apply to him.

Findings of the Court

Noticeably, in the case of one Dr. P. Leela Krishnan, a Professor of Law who was similarly situated as the appellant, the respondent University had duly considered the period of practice at the Bar as a part of qualifying service for the purpose of determining pension payable on superannuation, as perusal of extracts from the pension book of Dr. P. Leela Krishnan, revealed that his experience of practice at the Bar of 7 years, 2 months and 26 days was added to the period of his service at the  University, being 26 years, 9 months and 2 days. Accordingly, the respondent University had in determining his superannuation pension, considered 33 years, 7 months and 4 days as the qualifying period of service.

“Considering that no argument had been advanced on behalf of the respondents as to the manner in which the case of the appellant is different from that of Dr. P. Leela Krishnan and on what basis the benefit of Rule 25 (a) was granted to Dr. P. Leela Krishnan but was withheld in relation to the appellant.”

Pointing out the similarities between the two, the Bench stated, both these individuals were appointed as teaching faculty at the respondent University after practicing as advocates in various Courts of Kerala. They were both appointed before the proviso to Rule 25 (a) came into effect, i.e. before 12-02-1985 and retired after the said proviso came into force.

“In the circumstances, we find no valid ground to sustain the application of the proviso in relation to the appellant, thereby denying the benefit of Rule 21 25(a), when the same was not applied in the case of Dr. P. Leela Krishnan, thereby allowing the benefit of Rule 25(a).”

The law, as recognized in Deoki Nandan Prasad v. State of Bihar, (1971) 2 SCC 330, and Government of Andhra Pradesh v. Syed Yousuddin Ahmed, (1997) 7 SCC 24, states that the pension payable to an employee on retirement shall be determined on the rules existing at the time of retirement. However, the Bench stated, law does not allow the employer to apply the rules differently in relation to persons who are similarly situated. Therefore, the Bench opined that if the respondent University sought to deny the benefit of Rule 25 (a), in light of the proviso which was subsequently inserted thereby limiting the benefit of the Rule, it ought to have done so uniformly; as the proviso could have been made applicable in relation to all employees who retired from service of the respondent University following the introduction of the proviso, i.e. after 12-02-1985.

Conclusion

In the light of above, the Bench held that the denial of the benefit under Rule 25 (a), KSR, to the appellant was arbitrary and not in accordance with law. Consequently, the appellant was held entitled to receive pension having regard to his total qualifying service, inclusive of the period of his service at the respondent University and the period of his practice as an Advocate in various Courts of Kerala.

Accordingly, the impugned judgment of the High Court, whereby it was approved the action of respondent university was set aside. The respondent University was directed to calculate the amount of pension short paid to the appellant from the date of his superannuation and disburse such amount together with interest at the rate 5% p.a. till date of payment in favour of the appellant.

[G. Sadasivan Nair v. Cochin University of Science and Technology, 2021 SCC OnLine SC 1155, decided on 01-12-2021]


Kamini Sharma, Editorial Assistance has put this report together 


Appearance by:

For the Appellant: K.P. Kylasanatha Pillay, Senior Counsel along with Sajith P. Warrier, Counsel

For the Respondents: Malini Poduval, Counsel

For the State: G. Prakash Counsel


*Judgment by: Justice B.V. Nagarathna

 

Tags: Service Law, Government Servant, University, Teacher, Bar Council, Experience, Retirement, Superannuation, Pension

Case BriefsHigh Courts

Madhya Pradesh High Court: Sanjay Dwivedi, J., decided in the matter of a petition which was filed challenging an order whereby the petitioner had been transferred from Government Middle School Sewara-Sewari to Government Middle School, Batyawada.

Counsel for the petitioner submitted that in the school where the petitioner was posted, the strength of enrolled students was 72 and the petitioner was the only teacher in that school and if he is transferred then there will be no teacher in the school as nobody has been brought in place of the petitioner.

The Court was surprised about the fact that on the one hand the Government is transferring its sole employee from a school having 72 enrolled students and on the other hand, neither anybody has been brought nor any alternative arrangement has been made and in this situation it is arduous to gather as to how the School would run in the absence of sole teacher and who would take care of the students of that school.

The court was of the opinion that the impugned order was issued by the authorities without applying its mind, which draws a presumption that the government authorities have no compassion with the future of the students and no concern with the educational system, however, it is manifestly required duty of the government to act in the interest of public.

The Court stayed the order and held that it would be improper to allow implementation of the impugned order in respect of the petitioner because if he is relieved then school where the petitioner is posted would become teacher-less. The counsel for the respondents-State was directed to seek instructions and apprise this Court as to whether any alternative arrangement had been made by the government authorities by posting a teacher in the school where petitioner was presently posted, or not.[Sarawati Kumar Bharti v. State of M.P., WP-18006 of 2021, decided on 09-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Advocates before the Court:

For the petitioner: Mr Rajesh Prasad Dubey

For the respondent/State: Mr Sachin Jain

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: V.G. Arun, J., dismissed the instant petition filed for seeking direction to the Police to conduct an investigation into the role of respondents 2 to 7 in the suspicious death of one Bhargavi, paternal aunt of the petitioner. The Bench stated,

“…motive behind filing the writ petition is the petitioner’s ouster from his house and vesting of the properties of his deceased aunt with respondents 2 to 5.”

The petitioner’s paternal aunt Bhargavi died on 15-11-2019. Suspecting foul play behind Bhargavi’s death, the petitioner requested the police to conduct investigation which yielded no positive result. Therefore the petitioner had approached this Court praying for a direction to the police officials to conduct investigation into the role of respondents 2 to 7 in the suspicious death of Bhargavi.

Noticeably, Bhargavi was a spinster and had assets in the form of immovable properties and cash deposits.  She had executed a Will bequeathing all her properties in the petitioner’s name. However, by a subsequent will the properties were bequeathed in the name of respondents 2 to 5. By this time, there was rivalry in the family and the petitioner was driven out of the house and a partition deed was executed on 22-10-2003 between the petitioner’s father and Bhargavi.

Aggrieved by his ouster from the parental house, the petitioner filed a partition suit arraying his parents, aunt Bhargavi and siblings as defendants. Later, another will was executed by Bhargavi on 01-12-2011, bequeathing all the amounts in her bank accounts to the petitioner’s sisters. According to the petitioner, Bhargavi had executed the last two wills succumbing to the pressures exerted by his sisters and was actually contemplating the execution of a new and final Will, making the petitioner the sole legatee. While so, Bhargavi died on 15-11-2011 at 7.30 am, which according to the petitioner, was under mysterious circumstances. The petitioner alleged that the body of Bhargavi was cremated hurriedly at 12.55 pm on the same day at the Shanthikavadam Gas Crematorium so as to defeat investigation into the death.

Considering the above mentioned, the Bench was of the view that the motive behind filing the writ petition was the petitioner’s ouster from his house and vesting of the properties of his deceased aunt with respondents 2 to 5. As Bhargavi was aged 81 years, as on the date of execution of Will, she would have been 90 by the time she died. Hence, in the absence of clear and cogent evidence to the contrary, the Bench relied on the presumption that Bhargavi had died of natural causes. Since,

“Other than the allegation of Bhargavi having been cremated at the Santhikavadam Gas Crematorium which is 30 Kms from the place of demise, no other suspicious circumstances have been stated in the writ petition.”

Lastly, that petitioner claimed to be a teacher, the Bench vehemently remarked, observing that the conduct of the petitioner was, to say the least, reprehensible and a teacher is not expected to file frivolous writ petition of this nature, motivated by personal animosity.[Vivekanandan K. S. v. Circle Inspector of Police, 2021 SCC OnLine Ker 1614, decided on 30-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the petitioner: Adv. C. Manoj Kumar (Kakkanad) and Adv. P.T. Sebastian Tomy

For the Respondent: Adv. C. A. Anoop

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Sisira J. De Abrew, Murdu N.B. Fernando and S. Thurairaja, JJ., allowed an application which was filed in the matter of violation of Fundamental Right guaranteed under Article 11, 17 and 126 of the Constitution.

Petitioner 3 (minor) was a student at Puhulwella Central College and petitioner 1 and 2 were the father and mother of the child petitioner. Respondent was the Art Teacher, Teacher in Charge of Discipline and Sectional head of Puhulwella College.

On 13-02-2017 petitioner attended school, as usual, 1st and 2nd periods of the day allocated for Agriculture, the Petitioner was made part of one of three groups in the class and was directed to plough a designated area of the school grounds at the plant nursery in order to plant vegetables. During the execution of this exercise he had felt fatigued and had sat on a half wall near the plant nursery for a short amount of time prior to resuming this activity. He further stated that while he was washing his hands and tools, two students had approached him and told him that the Respondent asked him to come to his office, Respondent also admitted to this and added that on seeing the Child Petitioner seated on the culvert during the previous period, he had summoned him and reminded him that the Principal had previously warned them not to sit on that specific culvert as it was dangerous and questioned him as to why he had done so even after the warning. It was observed by the material submitted that the Respondent had slapped the child petitioner across the face and the blow landed on his face, upon his left ear after which he felt excruciating pain, severe discomfort, and been startled and disoriented. When Respondent was informed about the petitioner’s condition he did not take it seriously after which he informed the class teacher about the incident and that he wanted to go home because he was in pain to which the class teacher did not pay any attention and advised him not to exaggerate and tell the incident to his parent. It was further alleged that no staff member offered any form of medical assistance to the Child petitioner, he himself had bought 2 Panadol pills as painkillers from the school canteen.

After the Child Petitioner returned home from school at the end of the school day, he told his grandmother that the Art teacher had slapped him and that his ear was aching. Thereafter the Child Petitioner was taken to the Kirinda-Puhulwella Rural Hospital and his ear had been examined. The Doctor has commented that there is eardrum damage and recommended that he be admitted to the Matara General Hospital. The Child Petitioner was thereafter transferred to Karapitiya Teaching Hospital on 14-02-2017 for further investigation and had returned to Matara General Hospital on the same day. A statement was recorded by the Police while the Child Petitioner was at the Matara General Hospital and the Petitioner was thereafter discharged. However, as there had been no conclusive treatment, the Child Petitioner continued to be in excruciating pain after returning home. Being unsatisfied with the treatment at the previous hospitals, petitioner 2 after discussing with Petitioner 1 decided to admit the Child Petitioner to Colombo National Hospital on the 15-02-2017 for treatment and further investigation.

The medical investigations written by the Doctors of the Colombo National Hospital, demonstrated that the finding was that one of a perforated ear drum and that the Child Petitioner was suffering from “conductive hearing loss” on the left ear in hearing low frequencies. The Petitioners believed this to have been caused by the assault on the Child Petitioner by Respondent as the Child Petitioner did not have any history of hearing loss prior to this incident. The report from the Audiology Department made the comment that there was normal hearing in the right ear, but that there was Mild Conductive hearing loss only at low frequencies in the left ear.

The Court discussed Article 11 of the Constitution, Article 37 of Child Rights Convention, Article 5 of the Universal Declaration of Human Rights, Article 7 of the International Covenant on Civil and Political Rights and Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment all of which dealt with Violation of Fundamental Rights (Corporal Punishment and torture).

The Court further relied on the judgment of Bandara v. Wickremasinghe, (1995) 2 SLR 167 where it was held that,

            “I agree that discipline of students is a matter within the purview of schoolteachers. It would follow that whenever they purport to maintain discipline, they act under the colour of office. If in doing so, they exceed their power, they may become liable for infringement of fundamental rights by executive or administrative action.”

The Court further dealt with the contention of the respondent where he had stated that he did not know any details of the Child Petitioner, and bore no personal grudge against the Child Petitioner prior to this incident and thus that there was never any malicious intent on his part, the Court explained that there was a requirement of malice or intent required for the violation of Article 11 or Article 17 of the Constitution. Further, it is established through the circulars by the Education Ministry, in circular 12/2016 paragraph 2.4, that even with the best interest of the child and the discipline of the school in mind, a teacher may be in violation of all relevant provisions in reference to Corporal Punishment. Thus, the intention of the perpetrator is irrelevant to the illegality of Corporal Punishment, be it a teacher, parent, guardian or any other adult under who’s care or contact that the minor may be in, for the sole reason that it is the duty of the State to protect children from all forms of physical violence.

The Court held that, I must also recognise that the elimination of the practice of Corporal Punishment may not be achieved through isolated incidents, but a profound understanding by those entrusted with the care of children that violence is not a justifiable means to the end of discipline. Cruelty, violence, physical harm, particularly in the view of setting an example is condemned by all major faiths of our country, which forms the bedrock of our culture. The Dhammapada, profoundly states as follows:

As one instructs others, so should one act; if one would tame others, one should first be well tamed. Truly, it is very hard to tame oneself”

It is thus clear, that those guiding and instructing impressionable children, do not set a suitable example in impulsively engaging in violent acts that harm children in the name of disciplining them, as children are only likely to carry forward this behavior. If teachers aim to instill self-discipline and non-violence in children, they must set the example by instilling the same values in themselves. While this is difficult practice, if one is to expect this of children, they are to reflect it and expect it of themselves.

The Court allowed the application finding that Fundamental Rights of the Child Petitioner enshrined in Article 11 of the Constitution had been violated by the Respondent and the State. The Court after careful examination of all facts and relevant matters, especially permanent lifelong damage to the Child Petitioner’s hearing ability ordered compensation of Rs. 1,50,000 from the Respondent to the Child Petitioner and a further sum of Rs 5,00,000 by the State to be paid to the Child Petitioner.[Hewa Maddumage Karunapala v. Jayantha Prema Kumara Siriwardhana, Case no. SC/FR/97 of 2017, decided on 12-02-2021]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao, Navin Sinha and Indu Malhotra* has set aside the impugned judgment of Uttaranchal High Court, whereby the High Court had set aside the award passed by the Labour Court on the ground that no disciplinary enquiry was held by the School regarding alleged abandonment of service by the respondent.

Background

 The Respondent was initially engaged as an Assistant Teacher in Jai Bharat Junior High School, Haridwar during the period July, 1993 to 21-05-1994, which was an unaided private institution. Subsequently, she worked as a Clerk from 01-07-1994. From 24-05-2005 the School started receiving grants-in-aid from the State, and came to be governed by the Uttaranchal School Education Act, 2006. The Respondent filed a complaint before the School contending that she had worked continuously up to 07-03-2006. It was that her services were illegally retrenched since 01-07-1997 without granting her any hearing, or payment of retrenchment compensation. The school, on the other hand, argued that on account of her continuous absence, the School had to engage another clerk in her place. The Respondent never made any grievance about her alleged termination till 2006, which was made after 9 years only when the School started receiving grants-in-aid from the State and became a Government School. It was further argued that the employment of the respondent was illegal, since the father of the respondent was a member of the Managing Committee, and her mother was the Chairman employed by the School. It was also stated that minimum qualification requirement for teachers was of B.Ed. and Teacher training while the respondent was only 12th passed.

Findings of the Courts Below

Labour Court vide Award dated 22-08-2016 held that the respondent was not entitled to get any relief as there was sufficient evidence adduced by the Management to prove her continued absence from the School since 01-07-1997. However, the said award of the Court was set aside by the High Court on the ground that the respondent had failed to discharge the onus to prove her employment till 08-03-2006. It was only after the School started receiving grants-in-aid, the respondent filed the present application after over 9 years. Hence, the High Court had set aside the Award dated on the sole ground that no disciplinary enquiry was held by the School regarding alleged abandonment of service by the respondent.

 Observation and Decision

The Bench cited Workmen of the Motipur Sugar Factory Private Ltd. v. Motipur Sugar Factory, (1965) 3 SCC 588, wherein, it had been held that, “A defective enquiry stands on the same footing as no enquiry and in either case the tribunal would have jurisdiction to go into the facts and the employer would have to satisfy the tribunal that on facts the order of dismissal or discharge was proper.”

Reliance was also placed on Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd. v. Management of Firestone Tyre & Rubber Co. of India (P) Ltd., (1973) 1 SCC 813, wherein the Court had made following observations:

  • Even if no enquiry had been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order; had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
  • The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. A case of defective enquiry stands on the same footing as no enquiry.
  • It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
  • It has to be remembered that a Tribunal may hold that the punishment is not justified because the misconduct alleged and found proved is such that it does not warrant dismissal or discharge. The Tribunal may also hold that the order of discharge or dismissal is not justified because the alleged misconduct itself is not established by the evidence. Section 11-A now gives full power to the Tribunal to go into the evidence and satisfy itself on both these points.

The Court observed that full opportunity was given to the parties to lead evidence to substantiate their respective case and the High Court had not even adverted to the said evidence, and had disposed of the case on the sole ground that the School had not conducted a disciplinary enquiry before discharging the respondent from service. The School had led sufficient evidence before the Labour Court to prove that the respondent had abandoned her service from 01-07-1997 when she got married, and moved to another District, which was not denied by her in her evidence. The record of the School also revealed that she was not in employment of the School since July 1997.  The Bench stated,

“Only because some documents had not been produced by the management, an adverse inference could not be drawn against it.”

 In the light of above, it was held that initial employment of the respondent as a teacher from July 1993 to 21-05-1994 was itself invalid, since she was only inter-mediate, and did not have B.Ed. degree, which was the minimum qualification to be appointed as a teacher. Therefore, the impugned judgment of the High Court was set aside and the award passed by the Labour Court was restored. [State of Uttarakhand v. Sureshwati, 2021 SCC OnLine SC 34, decided on 20-01-2021]


*Justice Indu Malhotra has penned this judgment.


Kamini Sharma, Editorial Assistant has put this story together

Case BriefsHigh Courts

Sikkim High Court: A Division Bench of Meenakshi Madan Rai and Bhaskar Raj Pradhan, JJ., while addressing a case of offence under Section 354 A of Penal Code, 1860 for sexual harassment of a student by the teacher, held that,

If any person uses criminal force upon any woman with the intention or knowledge that woman’s modesty will be outraged he is to be punished.

Applicant filed the present application praying to be released on probation under Section 4 and 12 of the Probation of Offenders Act, 1958 read with Section 482 of the Code of Criminal Procedure, 1973.

Senior Counsel B. Sharma submitted on behalf of the applicant that he is of good character and good conduct.  He is also suffering from various ailments and considering that the penalty is imposed under Section 354A IPC, he be released on probation.

Further, Public Prosecutor submitted that the respondent had made no grounds to establish that he satisfied the ingredients of Section 4 of the probation of Offenders Act.

He also placed reliance on Ajahar Ali v. State of W.B.,(2013) 10 SCC 31 it was contended that the offence committed therein was one under Section 354 IPC, Supreme Court held that it was a heinous crime and the modesty of the woman had to be strongly guarded and refused to grant the relief under Section 4 of the Probation of Offenders Act.

Decision

Bench stated that from the submission of the respondent’s counsel it is clear that no grounds were made by him to establish the good character of the offender or that consideration ought to be taken of the nature of the offence.

Respondent used criminal force upon the victim which by no stretch of imagination can it be stated to be decent behaviour. Further, the Court added that, as Public Prosecutor pointed out in the decision of Ajay Tiwari v. University of Delhi, 2019 SCC OnLine Del 11360, it was held that the,

teacher should be more like a “loco parentis” and that is the duty, responsiblity and cahrge expected of a teacher.

In the present case, the student was subjected to unwelcome sexual advances of respondent her teacher.

Thus, it is clear that offences of sexual harassment to a woman cannot be taken lightly and should be dealt sternly, therefore, the prayer of the respondent stands rejected. [State of Sikkim v. Sashidhar Sharma, 2020 SCC OnLine Sikk 7, decided on 19-02-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench comprising of Surya Kant, CJ and Ajay Mohan Goel, J., disposed of a writ petition whereby absorption in government service was allowed irrespective of the source of salary paid.

Intra-Court appeals which arose out of a common and same set of judgments were filed before the High Court. It was contended by the respondent that the appellant issued a notification whereby it decided to take over a college where he was working as a lecturer on a regular basis and hence the services of teaching and non teaching staff were taken over of which he was denied the benefit which calls for discrimination under Articles 14 and 16 of the Constitution of India. In the second case, the claim was rejected as the respondent was not recruited through an open competitive selection process but covered a considerable time at her employment.

The appellant contended that since the salary the respondent receives was by Self-Financing Scheme and not Grant-in-Aid released by the Department of Education, therefore she fell out of the scope of benefit.

The Court came to the conclusion that acquisition of a college was required in a larger public interest and thus the source of payment was not a consideration with both kind of employees forming a homogeneous class and no artificial discrimination could be made amongst them and hence the respondent stood absorbed in the service. For the second case, the respondent was allowed service on account of sympathetic consideration. However, such absorption will be on notional basis and she will be entitled to salary from the date of actual appointment. The appeals were disposed of accordingly.[State of H.P v. Kamlesh Kumar,2018 SCC OnLine HP 1581, decided on 30-10-2018]

Case BriefsHigh Courts

Rajasthan High Court: A Single Judge Bench comprising of Arun Bhansali J., dismissed a writ petition on the basis of unreasonable and baseless grounds placed in regard to the grievance.

The brief facts of the case are that the petitioner was a widow and had been appointed in the said category of “widow” as a grade three teacher and eventually she had been transferred to a few other schools one after the other.

The primary contention of the petitioner is that she being an appointee in the category of “widow” is aware of the fact that in accordance to Rule 7B of the Rajasthan Educational Service Rules, 1970, she can only be replaced with a widow in place of her, whereas there was a violation of a rule in which as she was replaced by some person named Sanwat Singh Rathore. She also placed further contention saying that, due to certain ailments she was restricted from any kind of movement. For the stated reasons she had filed the petition asking for quashing of transfer order.

The Hon’ble High Court, concluded its order by stating that the contentions posed by the petitioner in regard to manning of her position has been declared to be illegal, the point which talks about violation of provision 7B of the Rules of 1970, the Court stated that the rule only talks about the reservation of vacancies for women and not the transfers/postings made. Though the Court by dismissing the petition has been considerate about the physical condition of the petitioner but subsequently observed that this cannot be the ground for invalidating the said transfer order. [Rani Lamba v. State of Rajasthan, 2018 SCC OnLine Raj 1301, dated 24-05-2018]