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Ayesha Khatun v/s The State Of West Bengal & Others


    W. P. No. 905 of 2011

    Decided On, 17 February 2012

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE JYOTIRMAY BHATTACHARYA

    For the Petitioner: Pratik Dhar, Sarwar Jahan, Advocates. For the Respondents: Abhijit Gangopadhyay S.S.C, A.K. Ganguly, Pankaj Haldar, Advocates.



Judgment Text

In a compelling circumstances the petitioner herein, who is an approved Assistant Teacher of Sadi Khans Dearh Girls’ Junior High School in the District of Murshidabad, submitted a representation before the Director of School Education (Secondary Education), West Bengal, praying for her transfer from the said school to any other school away from the place of work of the petitioner. Since petitioner’s such prayer has not been considered by the Director of School Education (SE) since August, 2011, the petitioner has come before this Court with this writ petition seeking issuance of direction upon the concerned authority for early consideration of the petitioner’s said representation appearing at page 32 of the writ petition.

As such, there is no provision for transfer of posting from one Government Aided Institution to another Government Aided Institution under the Management Rules. The school, where the petitioner was appointed as an Assistant Teacher, after being selected through the selection process conducted by the concerned School Service Commission, is the employer of the petitioner. The said school has no other branch. As such, transfer, as known in service jurisprudence, is impossible in the instant case as there is no other school and/or branch of that school elsewhere under the said employer of the petitioner. That apart, transfer to any other school under the management of a different Managing Committee is not possible as such transfer will amount to a new employment creating a new relationship of employer and employee between the school authority where she will be transferred and the employee who will be transferred there. That apart, no school authority can give any employment to any teaching and non-teaching staff in a Government Aided Institution unless he/she is recommended for such appointment by the School Service Commission after being selected through the process of the selection conducted by the School Service Commission as per law. So without further recommendation by the School Service Commission she cannot be transferred to any other school. Again such recommendation cannot be given by the School Service Commission as it is settled law that School Service Commission becomes functus officio after a candidate is recommended by it for appointment in any Government aided Institution and the offer of appointment given by the school authority in pursuance of such recommendation, is accepted by the recommended candidate.

Thus, when the petitioner was recommended by the School Service Commission for her appointment in the present place of her posting, even the change of recommendation of her posting to a different school is now not possible as the School Service Commission has now become functus officio as has been held by this Hon’ble Court in the following cases:-

i) In the case of Rama Bandapadhyay vs. State of West Bengal & Ors. reported in 2006 (1) WBLR (Cal) 849;

ii) In the case of Chairman, West Bengal Central School Service Commission and Ors. vs. Saswati Pramanik & Ors. reported in 2007 (2) CLJ (Cal) 301;

Looking at the provisions of the West Bengal School Service Commission Act and the decisions of this Hon’ble Court as mentioned above, this Court, at a first glance of this writ petition, had an impression that the petitioner’s claim deserved no merit for consideration. But after giving anxious consideration to the circumstances under which the petitioner was compelled to file such a representation before the Director of School Education (SE), this Court felt the necessity not only to entertain this writ petition but also to enter deep in the matter in view of various pronouncement of the Hon’ble Supreme Court wherein the Hon’ble Supreme Court held that even in the absence of any legislation on a particular subject, the High Court is not powerless to issue appropriate writ under Article 226 of the Constitution to do justice wherever injustice is found and to mould the reliefs to meet the peculiar and complicated requirements of the country. The decision of the Hon’ble Supreme Court in the case of Controller and Auditor General of India, Gain Prokash, New Delhi and Anr. Vs. S. Jagannathan and Anr. Reported in (1986) 2 SCC 679, may be referred to. The other decision of the Hon’ble Supreme Court in the case of M.V. Elisabeth & ors. vs. Harwan Investment & Trading Pvt. Ltd. Hanoekar House, Swatontapeth, Vasco, De Gama, Goa reported in (1993) Suppl (2) SCC 433 is very much significant in the present case as it was also held therein that where statute is silent and judicial intervention is required, Court’s strive to redress grievances according to what is perceived principles of justice, equity and good conscience. The relevant part of the said judgment is set out hereunder:-

'Paragraph 86; the judicial power of this country, which is an aspect of national sovereignty, is vested in the people and is articulated in the provisions of the Constitution and the laws and is exercised by courts empowered to exercise it. It is absurd to confine that power to the provisions of imperial statutes of a bygone age. Access to court which is an important right vested in every citizen implies the existence of the power of the Court to render justice according to law. Where statue is silent and judicial intervention is required, courts strive to redress grievances according to what is perceived to be principles of justice, equity and good conscience.'

The Division Bench of this High Court, exactly by following the said principle of law, disposed of an appeal even in the absence of any provision in the statute recognizing mutual transfer of the teachers, by directing the State Government to come to the aid of the teachers who applied for mutual transfer to minimize their sufferings. It was held therein, that in the absence of any expressed provision of law, the State being the supreme authority, can issue appropriate direction in an appropriate case, by exercising its inherent power. The decision in the case of Ramapapada Das vs. State of West Bengal & Ors. reported in 2008(2) CHN 994 may be referred to in this regard.

Here is the case where statute does not provide for transfer of a teaching staff from one Government Aided Institution to another Government Aided Institution. At the same time, it is necessary to mention here that the statute also does not prescribe any restriction on transfer of a teaching and/or non-teaching staff from one institute to another institute. As a matter of fact, the statute is silent in this regard.

In this backdrop of the legal position, this Court is required to consider the agony of the petitioner as reflected in this writ petition and find out ways and means as to how to mitigate justice to the petitioner as in the event the allegations made out in the writ petition are found to be true and correct, then no doubt the situation is very alarming and it is practically impossible for a lady teacher to work with dignity in her present place of posting.

Let me now put on record the pleadings of the petitioner on which her claim for transfer is founded. It is stated by the petitioner that she was entrusted with the duty of Madhyamik Pariksha 2010 at Sadi Khans Dearh Vidyaniketan where she met teachers of that institution along with one assistant teacher namely, Bakbul Haque of that institution. Somehow the said Bakbul Haque managed to obtain her cell-phone number and started making phone calls causing irritation to her and he continued to do so repeatedly by ignoring her repeated objections. On or about 25 July, 2010 when she went to the office of the S.I. concerned of Jor Tala, she found the said Bakbul Haque was present there. On that date she was shown her nude (undressed) photograph by the said Bakbul Haque. The petitioner was shocked to see her said photograph in the cell-phone of the said Bakbul Haque. She requested him to give the said photograph and the memory card of the cell-phone where her photograph was loaded. Bakbul informed her that her several other nude photographs are in his custody. Bakbul demanded money from time to time which the petitioner paid to keep her prestige in tack but Bakbul never returned those nude photographs and the memory card to her. On the contrary, as per the dictate of the said Bakbul she had to visit the house of one Ajbar Seikh on 7th February, 2011 where she felt unconscious for two hours after taking a glass of water provided by them but neither the photographs nor the memory cards were returned to her. Ultimately on a promise being made by the said Bakbul for return of those nude photographs and memory card to the petitioner, the petitioner had to go with him to the hotel Monjusha at Lalbagh, Murshidabad on 6th March, 2011, where against her will and consent she was forcibly raped by the said Bakbul Haque who ultimately denied to hand over any of those things. It was under such a situation an F.I.R. was lodged against the said Bakbul Haque and Ajbar Seikh in Jalangi Police Station on 11th June, 2011. A criminal case being Jalangi Police Station Case No. 464 of 2011 dated 11th June, 2011 under Section 376/379/384 of the Indian Penal Code was started on the basis of the petitioner’s said complaint. The said criminal case is still pending.

Since the said criminal case is still pending and the correctness of such allegations is yet to be tested in the said criminal proceeding, this Court cannot now proceed on the basis that the allegations made by the petitioner in this writ petition are proved and as such the relief which she has claimed in this writ petition should be granted immediately.

Even the persons against whom such allegations have been made, have also not been impleded as parties to this writ petition. It is impossible for the Court even to come to a definite conclusion as to the correctness of the allegations made by the petitioner against those accused persons, in their absence and without giving them an opportunity of hearing in this proceeding instantly. As such, this Court feels that at least a preliminary investigation should be made through the police administration of the concerned District to find out the correctness of such allegations of the petitioner even on prima facie basis and if after considering the report of such investigation, the concerned authority feels that it is impossible for the petitioner to continue her work with honour and dignity in the present place of her posting, suitable steps should be taken by the departmental head to place her in a different school away from her present place of posting so that she can continue her work in a congenial working environment which is safe and protected for her and where she can discharge her duties in an atmosphere where sexual harassment or abuse thereof, at the instance of accused persons can be avoided by her. Such transfer is needed as one of the accused persons namely Bakbul Haque happens to be an assistant teacher of a different school in the same locality, where the petitioner is presently working.

While taking such steps, the concerned authority must take note of the decision of the Hon’ble Supreme Court in the Case of Vishaka and Ors. Vs. State of Rajasthan and Ors. reported in (1997) 6 SCC 241 wherein the Hon’ble Supreme Court laid down certain guidelines and norms to ensure prevention of sexual harassment of women in the workplaces by taking note of the fact that present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in workplaces and that enactment of such legislation will take considerable time. The guidelines which were prescribed by the Hon’ble Supreme Court in the said decision were directed to be implemented as binding and enforceable in law until suitable legislation is enacted to occupy the field. Direction for its strict observance in all workplaces was given for preservation and enforcement of the right to gender equality of the working women. The guidelines which were so framed by the Hon’ble Supreme Court in the said decision are set out hereunder for the sake of convenience for implementation of this order:-

'1. Duty of the employer or other responsible persons in workplaces and other institutions:

It shall be the duty of the employer or other responsible persons in workplaces or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or persecution of acts of sexual harassment by taking all steps required.

2. Definition:

For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:

(a) physical contact and advances;

(b) a demand or request for sexual favours;

(c) sexually-coloured remarks;

(d) showing pornography;

(e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature. Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.

3. Preventive steps:

All employers or persons in charge of workplace whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:

(a) Express prohibition of sexual harassment as defined above at the workplace should be notified, published and circulated in appropriate ways.

(b) The rules/regulations of government and public sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.

(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.

(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at workplaces and no woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

4. Criminal proceedings:

Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a compliant with the appropriate authority.

In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

5. Disciplinary action:

Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

6. Complaint mechanism:

Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate compliant mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time-bound treatment of complaints.

7. Complaints Committee:

The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.

The Complaints Committee should be headed by the woman and not less than half of its members should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.

The Complaints Committee must make an annual report to the Government Department concerned of the complaints and action taken by them.

The employers and person-in-charge will also export on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government Department.

8. Workers’ initiative:

Employees should be allowed to raise issues of sexual harassment at workers’ meeting and in other appropriate forum and it should be affirmatively discussed in employer-employee meetings.

9. Awareness:

Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.

10. Third-party harassment:

Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person-in-charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.

11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in private sector.

12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.'

Those guidelines were framed by the Hon’ble Supreme Court to protect the fundamental rights of gender equality and the right to life and liberty of the working women in the country so that their right to practice any profession or to carry out any occupation, trade or business as guaranteed under Article 19(1)(g) of the Constitution is protected.

This Court cannot accept the submission of the learned Advocate of the State respondent to the effect that the said decision has no application in the facts of the instant case as the incidents complained of did not admittedly occur in the school premises. He thus, wanted to restrict the application of the said decision within the campus of the school premises for preservation and enforcement of the right to gender equality of the working women in the school premises. Of course, workplace has not been defined either in the said guidelines or in the said judgment. As such, a logical meaning should be given to the expression 'workplace' so that the purpose for which those guidelines have been framed, is not made unworkable. Workplace, in my view, cannot be given a restricted meaning so as to restrict the application of the said guidelines within the short and narrow campus of the school compound. Workplace should be given a broader and wider meaning so that the said guidelines can be applied where its application is needed even beyond the compound of the workplace for removal of the obstacle of like nature which prevents a working woman from attending her place of work and also for providing a suitable and congenial atmosphere to her in her place of work where she can continue her service with honour and dignity. Thus, this Court holds that the guidelines framed in the said decision is applicable in the instant case, as in the event the allegations are proved, then it is impossible for the petitioner to teach the students in any school in the locality as such a teacher who is the victim of such circumstances, cannot command respect from the students and/or their guardians and/or other co-staff in any school in the said locality. Thus, her transfer from the school to any other school in a different locality preferably beyond the District of Murshidabad, in my view, will be the only solution in such circumstances.

Thus, this Court feels that the petitioner’s representation should be considered as expeditiously as possible. But who is the authority who can effectively redress the grievances of the petitioner in the facts of the instant case?

The Director of School Education (SE) with whom the petitioner’s said representation is pending for consideration, in my view, may find it difficult to take the ultimate decision in this regard, in the absence of any statutory provision on this subject. In the absence of any statutory provision, the law making authority viz. State can only take the ultimate decision, in exercise of its inherent power for placing her in a suitable place where she can discharge her duties with honour and dignity and without any fear of sexual harassment and for regularizing her appointment in the transferred post by issuing necessary instruction to different authorities including the School Service Commission.

Under such circumstances, this Court directs the Director of School Education (SE) to remit the petitioner’s said representation appearing at page 32 of the writ petition to the Principal Secretary of the Higher Education Department, State of West Bengal positively within a period of two weeks from the date of communication of this order and the said Principal Secretary, on receipt of the said representation of the petitioner, will cause an investigation to be made through the Superintendent of Police of Murshidabad District to find out the correctness of the allegations made by the petitioner in her said representation and after obtaining the report from the investigating authority as mentioned above if the Principal Secretary is, prima facie, satisfied about the correctness of such allegations of the petitioner, then he will consider the petitioner’s prayer for her transfer from the present place of her posting to a different school away from her present place of posting so that she can continue her work with honour and dignity in a safe and protected environment and pass suitable orders immediately to do the needful.

While considering the petitioner’s said representation, the Principal Secretary should remember that he is not required to hold full-fledged trial and/or inquiry which a criminal court is required to hold to enquire into

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allegations of such nature in a criminal proceeding. What the Principal Secretary is required to do, is simply to ascertain prima facie the correctness of the allegations of the petitioner and further to ascertain as to whether the said incidents had wide publicity in the locality causing it impossible for her to continue her work in the present place of posting and if he is prima facie satisfied that the allegations are not absolutely without any substance and the said incident had wide publicity in the locality, then he will take the ultimate decision on the petitioner’s prayer for her transfer in the light of the guidelines framed by the Hon’ble Supreme Court in the aforesaid decision and will issue necessary directions to the concerned authority including the School Service Commission, to regularize her service in the school where she will be transferred by giving benefit of her past service. It is made clear that since a criminal case is pending on the basis of the identical allegation before the criminal court, the criminal court will not be influenced either by any observation to be made by the Principal Secretary in connection with the petitioner’s said representation or by the police report to be submitted in this proceeding as the standard of proof and the nature of trial in the criminal proceeding is completely different from that of the scope of enquiry in the present proceeding to be conducted by the Principal Secretary in terms of the order passed by this Court. The entire exercise in this regard should be completed within twelve weeks from the date of receipt of the petitioner’s representation from the Director of School Education (SE). The decision which will be taken by the concerned authority should be communicated to the petitioner and the school concerned for immediate implementation of the ultimate order to be passed by him in connection with the said proceeding. This court is informed that the accused persons are absconding and as such their presence in connection with the said proceeding may not be easily obtained and as such if the Principal Secretary is of the view that their presence cannot easily obtained, he may complete the said proceeding even in their absence, in the manner as aforesaid by maintaining the time limit which is framed above for the aforesaid purpose. The writ petition is, thus, disposed of. Urgent Xerox certified copy of this judgment, if applied for, be given to the parties as expeditiously as possible.
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