Teacher restraining student from copying by touching her shoulder from behind not molestation: Calcutta High Court

The Calcutta High Court recently held that a teacher merely touching the shoulder of a student to restrain her from copying in exams would not amount to molestation warranting disciplinary action against him [Anil Kumar Mridha vs Union of India]..A division bench of Justices Suvra Ghosh and Subhendu Samanta quashed an April 8, 2018 order of the Central Administrative Tribunal (CAT), which had upheld the decision of the disciplinary authority to dismiss a government school teacher from service. The Court noted that it was the alleged molestation which was termed as misconduct on the part of the petitioner leading to his dismissal from service."Restraining the victim from copying in the examination by touching her shoulders from behind can under no stretch of imagination be termed as misconduct, more so, 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," the Court said.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, the bench underscored.The Court, therefore, ordered the reinstatement of the petitioner with full back wages as well as other consequential benefits.The Court also imposed costs of ₹10,000 on the authorities.The petitioner, Anil Kumar Mridha was removed from service by the disciplinary authority on the ground that he had molested a class 8 girl by touching her shoulders from behind in November 2009.The bench noted that despite the petitioner being acquitted from the criminal case on grounds of a 'compromise petition' filed by the victim, who was stated to have filed a false case against him, the disciplinary authority held that since a minor is not competent to enter into a contract, the compromise petition filed by the victim and the petitioner jointly cannot be of any aid to him."It appears that the petitioner was acquitted from the criminal case on the anvil of a joint compromise petition. The compromise petition cannot be termed as a contract. It clearly demonstrates that the petitioner is innocent and the complaint was falsely lodged against him by the victim," the High Court noted.It further observed that though the victim herself had initially stated in her evidence that she was molested by the petitioner, she had subsequently retracted the statement and said that the petitioner had only touched her shoulder from the back while she was copying in the examination. "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," the bench said..Though the authorities tried to impress upon the Court that the petitioner has been penalized for misconduct and not molestation, the article of charge framed against him revealed that the charge of misconduct was based on the alleged molestation for which the criminal court had already exonerated him."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," the bench observed.Therefore, it is ultimately the alleged molestation that has been termed as misconduct on the part of the petitioner, the bench noted. Since the petitioner was already acquitted in the molestation case, the Court made it clear that disciplinary action based on that cannot stand. "There is not an iota of evidence on record that suggests misconduct on the part of the petitioner. The statement of the victim is exonerative in nature and gives a clean chit to the petitioner. The decision of the authorities is based on no evidence at all and no misconduct resulting in violation of the service rules has been substantiated against the petitioner," the bench held.With these observations, the bench quashed the order of the CAT and ordered the authorities to reinstate the petitioner. It also imposed a cost of ₹10,000 on the authorities..Advocate Anjili Nag appeared for the Petitioners.Advocates Shatadru Chakraborty and Dibesh Dwivedi represented the Authorities..[Read Judgment]