“Disciplinary action must be based on preponderance of probability supported by evidence”

Anil Kumar Mridha v. Union of India & Others

WP 50/2023 Before High Court of Calcutta, Circuit Bench at Port Blair

The Bench of Hon’ble Madam Justice Suvra Ghosh J & Hon’ble Mr. Justice Subhendu Samanta J allowed the Writ Petition on 16.10.2023.

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Fact

1.???? Petitioner-Anil Kumar Mridha (Petitioner a primary school teacher at Government Middle School) filed Writ Petition against the order passed in review by the Central Administrative Tribunal on August 8, 2018 affirming the order passed by the Appellate Authority.

2.???? Allegation against the petitioner is that the teacher outraged the modesty of a student of Standard VIII on 21.11.2009.

3.???? Charges were framed against the petitioner in the departmental proceeding to the effect that the petitioner committed gross misconduct and was proved to the extent that the petitioner touched the back of the girl student.

4.???? The Disciplinary Authority held the petitioner guilty vide its order passed on 28.02.2012 and imposed major penalty of dismissal from service.

5.???? Several witnesses were examined by the authority including teachers and students of the school but none of the witnesses had implicated the petitioner.

6.???? The victim in the disciplinary proceedings and in her examination-in-chief submitted that the petitioner put his hand on her back.

7.???? Later before the trial court she submitted that she was not interested in contesting the case further and the case may be dropped/dismissed.

8.???? In her cross examination, she admitted that she was copying during the science test held on the date of incident and she had given false statement before the police in 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.

9.???? Petitioner made an appeal before the Appellate Authority against the order of Disciplinary Authority. Appellate Authority affirmed the order of Disciplinary Authority as well as the penalty.

10.? A criminal case u/s 354 was also instituted against the petitioner which ended in acquittal of the petitioner on the basis of the compromise petition filed jointly by the petitioner and the victim.

Submission of the counsel oof the Respondents

1.???? The decision taken by the authorities are well considered decisions and the writ court, in exercising jurisdiction under Article 226 of the Constitution of India, cannot interdict the findings of fact-finding authorities.

2.???? 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.

?Observation of the Court

1.???? Since the victim has changed her stance from time to time, her statement that the petitioner touched her shoulders can not be safely relied upon.

2.???? 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.

3.???? The Disciplinary Authority held that since a minor is not competent to enter into a contract, the compromise petition filed by the minor victim and the petitioner jointly cannot be of any aid to the petitioner.

4.???? The compromise petition clearly demonstrated that the petitioner is innocent and the complaint was falsely lodged against him by the victim.

5.???? 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.

6.???? In the order passed on 22nd August, 2023, the Tribunal has reiterated the observation made by the Disciplinary Authority as well as the Appellate Authority. No independent consideration was made by the Tribunal in adjudicating the legality and correctness of the orders.

7.???? The standard of proof required in a departmental proceeding is based on preponderance of probability which should be based on some evidence/material on record.

8.???? The order imposing major penalty of dismissal from service upon the petitioner was concurred by the Appellate Authority and the Tribunal, for molestation which has been termed as misconduct on the part of the petitioner.

9.???? 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.

10.? 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.

11.? Restraining the victim from copying in the examination by touching her shoulders from behind can by 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.

12.? The decision taken by the Disciplinary Authority & subsequent decisions of the Appellate Authority as well as the Tribunal and also the inquiry report on the basis of which the orders were passed cannot be sustained.

Order

Inquiry report, orders passed by the Disciplinary Authority, the Appellate Authority and the Tribunal were set aside & respondent authorities were directed to reinstate the petitioner in service with full back wages as well as other consequential benefits to which the petitioner is entitled.

Seema Bhatnagar

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