Cases of sexual harassment of 67 girl students and the need to change the mind-set of Courts

The Central and State Governments must ensure that every Section of law is implemented and complied with !

H.H. (Advocate) Suresh Kulkarni

1. Jawahar Navodaya Vidyalaya teacher was suspended for sexually abusing 67 female students

Pawan Kumar Niroula was a teacher at Jawahar Navodaya Vidyalaya in North Sikkim since 1997. He was moved to Bihar for a few days in 2006 and then in 2007 to Jawahar Navodaya Vidyalaya in Ravangla area of South Sikkim. A girl student lodged a complaint of sexual exploitation against Pawan Kumar on 14.2.2020. Initially there was only one such complaint from the girl; however, an internal investigation of the school found that the teacher had abused 67 girls.

All the girls then lodged a written complaint against the teacher. Accordingly, after the school Principal also lodged a complaint; a criminal case was registered against the barbaric teacher on 15.2.2020. Strict provisions of the POCSO Act 2012 were applied against him. The accused was suspended as per law since he was a teacher in a Central School and was jailed for more than 24 hours.

He immediately appealed against this suspension as per the CCS rules about suspension under Section 23 of Rules 1965; but the appeal does not appear to have been decided as yet. The school had appointed an Inquiry Committee. Therefore, Pawan Kumar’s suspension was extended from time to time as per the provisions of the Act. The accused teacher then challenged the suspension and the Inquiry Committee in the Central Administrative Tribunal, which deals with cases relating to the employment of Central Government employees.

2. Pawan Kumar’s appeal was rejected by the Central Administrative Tribunal

Arguing in the Central Administrative Tribunal, Pawan Kumar said, “I was not remanded to Police custody for more than 48 hours. So how can I be suspended if I was not even arrested ? This is a violation of the law to suspend me in this manner”. Also, according to the judgement of ‘Vishakha Vs. State of Rajasthan’ and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, the Inquiry cannot proceed.

In the case of ‘Vishakha Vs. State of Rajasthan’, the Supreme Court has given some guidelines on different types of suspension formulae and other aspects. ‘The Inquiry Committee appointed as per Section 4 should consist of a person who is unbiased, independent or not affiliated with the school. He / she should be aware of the atrocities against women and be a social worker’. He / she should have fair knowledge about the concerned subject, verdict of ‘Vishakha Vs. State of Rajasthan’ case and how an Inquiry is conducted on the victim’s complaints ?

Arguing in the Central Administrative Tribunal, Pawan Kumar further said that all the 3 members of the Inquiry Committee appointed against him were employees of Jawahar Navodaya Vidyalaya. Therefore, this Inquiry Committee itself is invalid. Hence, his suspension should be revoked and he should be reinstated. In addition, the Inquiry Committee appointed against him should be dissolved. Pawan Kumar’s appeal was, of course, rejected by the Central Administrative Tribunal.

3. Calcutta High Court admitted Pawan Kumar’s appeal and ordered his re-instatement

Pawan Kumar challenged the appeal in the Calcutta High Court after the Central Administrative Tribunal rejected his appeal. The Central Government argued that the Government had passed an Ordinance in 1993.

The rules about the appointment of a Committee of Inquiry into allegations of violence against women working in Government offices or private establishments were stipulated. The validity of the ordinance was challenged in the Supreme Court. Finally, the Supreme Court in 1996, in its Avinash Nagra Vs. Navodaya Vidyalaya Samiti, ruled that the ordinance was valid. Therefore, such an Inquiry Committee should get legitimacy.

According to the Central Government, it is wrong to refer to Vishakha’s verdict in the case of sexual exploitation of female students. This verdict applies in a different context. If there are sexual offences or atrocities against women working mainly in Government or private establishments, an Inquiry Committee has to be appointed. The Committee should include 2 persons of that office and one person not related to the office. In this case, there is a complaint of minor students studying in the school.

It is not good for teachers in their profession to abuse students. Teachers should take care of the students as elders would. The criteria in the cases of ‘Visakha Vs. State of Rajasthan’ and ‘Medha Kotwal Lele Vs. Central Government’ should not be applied in this case.

Even after hearing the views of all parties and citing several incidents in the Supreme Court cases, the two-Judge Bench of the Calcutta High Court allowed the appeal of Pawan Kumar and ordered his reinstatement. The Court ordered that Pawan Kumar get 2 year’s suspension pay. The Inquiry Committee appointed against him was also dissolved.

4. Reasons for Calcutta High Court’s ruling against victim girls

4A. Inquiry against the accused not held despite the extension of period : When hearing this case, Calcutta High Court should have considered – What exactly happened in the case, What is happening in the society right now. Also, not one, not two, but as many as 67 girls had lodged a written complaint of sexual exploitation against the teacher who was seeking justice; if such a teacher is acquitted, how may more girls will he exploit ?

Ordering that such a narcissistic teacher be reinstated tantamounts to giving him a license to abuse students henceforth. Basically, women or girls do not usually speak out against abuse out of self-respect. However, 67 girls had lodged complaints against the teacher after being assured of their protection in the case. The Inquiry Committee was given two extensions and was allowed to work for one year. Why did they not inquire in time ? Would the girls give evidence now or after leaving school ?

4B. Inquiry remained incomplete due to restrictions imposed by corona pandemic : The reason why this Inquiry may not have been completed is obvious. Within just 15-20 days after this incident, restrictions were imposed all over India due to corona pandemic. The priority of the rulers and the administration was to control this disease. Therefore, the appointed Committee may not have been able to investigate the sexual exploitation of girls. This consideration was also required to be considered by the Court.

4C. Lack of consideration of logical criteria : The Act and the rules about the appointment of a Committee of Inquiry into allegations of violence against women working in Government offices or private establishments were passed in 2012. The judgements in ‘Visakha Vs. State of Rajasthan’ or ‘Medha Kotwal-Lele Vs. Central Government’ is used in a different context. How can this criteria be stretched to this case ? Those verdicts are in a different context and situation.

4D. Non-filing of chargesheet : In this case, the High Court should have observed that POCSO is an independent and special law. According to its provisions, the chargesheet was expected to be filed immediately after the Police complaint had been lodged and the statements of the victims were to be recorded. A criminal case was to be filed against the culprit. Instead of cooperating in the case, Pawan Kumar was busy in challenging the Inquiry and his suspension. The Government agencies also got involved. The ruling failed in its objective to protect under-age girls.

4E. Delay in working : In all these cases, the official delay is also reprehensible. The Police had to file a criminal case and show sensitivity in this case. The Inquiry Committee in this case also had to fulfil its responsibility and complete the Inquiry within 2 months.

If you have any commission or Inquiry Committee, it is quite normal that it will get extension. The proverb ‘Yatra naryastu pujyante, ramante tatra devata’ (Deities dwell where women are worshipped) has not been followed.

The motive in legislating the POCSO Act was also thwarted. Now this accused has been released to commit such heinous acts again with the students. Therefore, it is necessary to go to the Supreme Court immediately against this verdict.

5. The ‘Hindu Nation’ must be established for the protection of women and girls

The Central and State Governments need to enact stricter laws to protect the rights of minor girls. It is their responsibility to ensure that every Section of law is implemented and complied with.

Otherwise, there is no meaning in passing such Acts. Sometime ago, Chief Justice and other senior Judges had said that every citizen of India should have a degree in law. If all people had been taught law, they would have tried to protect the POCSO Act, that is, protect under-age girls.

The Calcutta High Court should also look into the reasons behind the case going against the Government. In future, the ‘Hindu Nation’ must be established so that victims are freed from sexual exploitation.

– H.H. (Advocate) Suresh Kulkarni (Founder Member, Hindu Vidhidnya Parishad and Advocate in Bombay High Court, 5.2.2022)

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