@JUDGMENTTAG-ORDER
Honourable Mr. Justice K. Chandru
1. Heard. These three miscellaneous applications came to be filed under peculiar circumstances of the case. The main writ petition being W.P.No.
2116 of 2011 came to be posted before this court on being specially ordered by the Hon''ble Chief Justice vide order dated 7.3.2011 and the
matter was heard and disposed of on 7.4.2011 after hearing all parties.
2. In the operative portion of the said judgment (since reported in Srinivas Rajan Vs. The Director of Matriculation Schools and Others, , in
paragraph 56, it was ordered as follows:
56. In view of the above, this writ petition is disposed of with the following direction:
a) The third respondent is hereby directed to appoint a retired Judicial Officer not below the rank of District Judge to conduct an enquiry against
the fifth respondent in respect of the complaints received from the students, parents as well as Parents Teachers'' Association within a period of
three months from the date of receipt of the copy of the order and take further action on the fifth respondent on the basis of the report.
b) The third respondent is hereby directed to constitute a special committee as directed in Vishaka''s case (cited supra) and enquire into the
complaints of sexual harassment of women staff by the fifth respondent. That report should be obtained within three months from the date of
receipt of the copy of the order and further action is to be taken on the said report against the fifth respondent.
c) Till the two enquiries against the fifth respondent are completed, the fourth respondent shall not be shifted out of third respondent school.
d) Pending enquiry into the allegations and further decision to be taken by the management, the fifth respondent shall be kept under suspension. But
however, he will be paid subsistence allowance as per law.
There will be no order as to costs. Consequently, connected miscellaneous petition stands closed.
3. Aggrieved by the order, the matter was taken on appeal at the instance of the fifth respondent being W.A.No. 699 of 2011. The writ appeal
was dismissed vide order dated 14.6.2011. In paragraph 3, the division bench had observed as follows:
3. In that view of the matter, we are not at all inclined to interfere with the impugned order. This writ appeal is, therefore, dismissed. Needless to
say that the enquiry so directed by the learned Single Judge shall be done by the retired District Judge without being prejudiced by any of the
findings arrived at earlier. It goes without saying that the enquiry shall be expedited. Consequently, the connected miscellaneous petitions are also
dismissed. However, there will be no order as to costs.
4. After orders were passed, it transpires that the third respondent school ordered for an enquiry to be conducted by a retired District Judge by
name Akbar in respect of the disciplinary action to be taken against the fifth respondent. On the complaint regarding sexual harassment, the third
respondent had appointed three persons as a Special Enquiry Committee presided by one Dr. Cynthia Alexander as its Chair Person and Ms.
Eugenie Pinto and Mr. S. Anthony Raj as its Member and Member Secretary respectively.
5. The appointment of the retired judge was objected on the ground that he was the parent of a former student of the school and that a request for
change of the enquiry officer was made. On the said request, the school management had changed the enquiry officer and appointed one K.
Jeyaraman, a retired judge of the subordinate judiciary. The said enquiry officer commenced his preliminary enquiry on 18.6.2011.
6. The writ petitioner gave a representation requesting for the issuance of copies of documents as per the order passed by this court in the main
writ petition on 7.4.2011 in paragraph 39 of the said order. A reference was made to the documents collected by the Advocate Commissioner
appointed by this Court earlier. It was stated that the enquiry has to be conducted in terms of the complaints received against the fifth respondent.
The enquiry officer informed the petitioner that relevant documents will be produced at the time of the enquiry and that the enquiry was postponed
to 18.6.2011. On 25.6.2011, the Enquiry Officer sent a letter stating that all the petitioners need not come for the enquiry and any one or two can
represent the petitioner on their behalf. For the explanation to be given by the fifth respondent, the time was extended.
7. Thereafter, the enquiry officer on 30.6.2011 had fixed the date on 2.7.2011 for examination of witnesses. The petitioner was also directed to
given evidence on the same day. On 2.7.2011, on behalf of the original writ petitioner, a memo was filed stating that the minutes of the enquiry
proceedings was received only at 05.15 p.m. on 30.6.2011. They wanted time to file an application for clarification regarding the examination of
the child witness and also to grant time to file counter. But the enquiry officer held that since a time limit had already been fixed by this court, the
matters were finally adjourned to 09.07.2011. Before the adjourned date, these three applications were filed by the original petitioner, i.e.,
M.P.Nos.2,3 and 4 of 2011.
8. M.P.No. 2 of 2011n was for extension of time for conducting the enquiry. M.P.No. 4 of 2011 was to grant an interim stay of the proceedings
pending clarification and M.P.No. 3 of 2011 was for seeking clarification of the main order passed by this court, dated 7.4.2011.
9. This court gave notices on the applications and granted an interim stay pending the clarification application. On notice from this court, the third
respondent School has filed a counter affidavit, dated 18.7.2011. The fifth respondent has filed a counter affidavit dated 6.7.2011. The original
petitioner has filed a rejoinder affidavit dated 28.09.2011. Additional typed set of papers were also filed containing the minutes of the enquiry
proceedings.
10. Though this matter was heard and reserved on 6.9.2011, orders could not be pronounced because of Madurai roster for this Court from
October to December, 2011. During that period despite efforts, the bundle could not be sent as it has got mixed with some other bundles. In the
meantime, the counsel appearing for the third respondent had circulated a letter reminding about the pendency of the proceedings. Hence this
matter was taken up on a priority basis.
11. In the application for clarification, the original writ petitioner wanted this Court to clarify the following matters :
(1) whether the enquiry officer can rely upon the documents referred to in paragraph 39 of the original order and the petitioner can have copies of
those documents?
(2) whether the child witnesses examined can be cross examined by the delinquent teacher (fifth respondent)?
(3) whether the enquiry officer was correct in stating that only parents and students alone can be examined and not the representative of the Parent
Teachers Association?
(4) Whether the author of the complaint can be summoned to depose in the enquiry?
(5) Whether the Special Committee had properly conducted proceedings in respect of the sexual harassment complaint on the basis of the
guidelines issued by the Supreme Court in Vishaka v. State of Rajasthan''s case referred to in the original order?
(6) Whether the original writ petitioner''s wife, Ms. Sneha Rajan, who gave a complaint, can be enquired by the Special enquiry Committee? and
(7) Whether the time fixed by this court for the enquiry should be extended for complying with the directions?
12. In the counter affidavit filed by the fifth respondent, it was contended that there was no scope for clarifying the earlier order as already this
court has said that the enquiry officer should enquire into the complaints received from the parents, students as well as Parent Teachers
Association. The question of examining the original petitioner''s wife did not arise. The original writ petitioner is a tool in the hands of the Principal
of the school, who is the fourth respondent. Insofar as the statements recorded, the Special Committee in terms of the Vishaka''s guidelines have
only said that there is no sexual harassment. With reference to not examining the wife of the petitioner, Mrs. Sneha Rajan, the fifth respondent in
paragraph 21 averred as follows:
21....So far as he is concerned, he never made any such allegations concerning the sexual harassment. Now that the enquiry is almost nearing
completion, he makes an allegation that his wife is being sexually harassed. He never made any averment to this effect during the entire course of
six months proceedings and that will amply prove that he has interested in protracting the matter unnecessarily by bringing down extraneous things
to suit his convenience and his intention to help the principal to remain there for ever.
Therefore, his main grievance was that the petitioner was a tool in the hands of the Principal and he is fighting to retain the Principal in the same
school. But no such stand was taken in the counter affidavit filed by the third respondent school management.
13. With reference to the child witness, the school management has stated in their counter affidavit in paragraph 5 as follows:
5....If child witness is permitted, then even according to the Supreme Court decision, an opportunity to cross examine must be given otherwise, the
enquiry may be vitiated for violation of principles of natural justice and we may have to redo the entire process again. If cross examination would
amount to harassment, then forcing the child to let in evidence would also amount to same. Hence it would be appropriate for the enquiry officer to
decide on admitting child evidence and if so by permitting cross examination without harassing the child witness. The enquiry officer is the fact
finding authority on whose report, appropriate action is to be taken.
14. With reference to permitting third party to led evidence, in paragraph 6 of the counter, it was stated as follows:
6.....Permitting third parties to let in evidence and permit cross examination of those parties would only delay the enquiry process....
15. With reference to formation of the special committee''s role in paragraph 7 it was stated as follows:
7....The Special committee was formed to enquire into the allegations made by women staff and the said committee has acted as per the directions
this Hon''ble Court.
16. With reference to the litigant evidence of the mother of a student, in paragraph 8, it was stated as follows:
8....I submit that as with regard to admission of evidence of Mrs. Sneha Rajan, no complaint was ever lodged by her or the petitioner either before
the School authorities or even before this Hon''ble Court earlier.....
17. It was curious to note that the fourth respondent, i.e., the Principal of the School who was served with notice on these applications, did not file
any counter affidavit, whereas the third respondent himself had averred that he was filing the affidavit for and on behalf of the Principal. If that is so,
then he should have taken exception to the allegation made by the fifth respondent teacher in his counter affidavit, wherein in more than one place
he had made insinuating remarks against the Principal of the School.
18. The petitioner has filed a rejoinder statement dated 28.09.2011 questioning the bonafides of the Special Committee constituted to enquire into
the complaint of the sexual harassment. With reference to the Committee not permitting Mrs. Sneha Rajan, in paragraph 10 it was averred as
follows:
10....It is further stated that the evidence of Mrs. Sneha has to be admitted as she is a party necessary who had lodged complaint with the
authority. Infact Mrs. Sneha who is none other than the wife of the petitioner had requested the school authorities to treat her as a deponent and
allow her to let in evidence, the same was ignored by the school authorities.
19. This Court also directed the management to produce the minutes of the Special Enquiry Committee so as to satisfy itself as to whether the
guidelines of the Supreme Court was scrupulously followed. On the other hand, the Special Committee''s minutes is perfunctory and it does not
even show that they had ever read the judgment of the Supreme Court which defined what was meant by the term sexual harassment in a work
place. The minutes of the Committee dated 6.7.2011 which was made available, showed the following recordings :
The Complainants were called individually by the Committee to obtain their reply to the counter statement of the Respondent, if any.
The Complainants individually declared that there was no personal harassment / abuse by the Respondent.
20. But the records and the complaint provided show otherwise. It is necessary to cull out the statements and the complaints made before the
Special committee. The statement of teacher Mrs.Geetha reads as follows :
I reiterate and stand by the statements I made in the earlier Enquiry meeting. The Respondent has referred to me as a Bitch to my colleagues.
The statement given by Mrs. Jaqueline reads as follows:
The Respondent refers to each of the lady teachers and even some parents as a ''Bitch''''
21. Each one of the teacher, who had deposed have stated that they stood by the earlier complaints given by them. In their complaints, they have
stated as follows :
Rosalind : ''I would like to share with you. He often uses the word bersecher.''
A. Shymala : ''I have personally experienced his harassment through his lusty look. He keeps staring at me from his class, whenever I am in my
class as well as in the corridor. I fell very bad and awkward. He has addressed me as ''Bitch'' to my colleague. He also passes comments about
me to other gents (his friend) colleague.''
Flavia : I was very much disappointed when once Mr.Tormon took photograph when ladies staff were inside Principal''s office for syllabus framing
meeting.
Susai Mary : the respondent took photographs of me and the other teachers when we were inside the Principal''s office, without our consent.
Geetha : I have never personally spoken to him nor do I know him. I have not had any conversation or dialogue with him, though I have been
working in this prestigious institution for the past four years. I have no personal conflicts but the way he addresses the ladies is degrading us in front
of the students and other senior staff members.
Shakilag : I have heard that he refers to many of the teachers as Bitch.
Sathya Priya : He would also inform that another parent was a bad person stating that she had relations with her driver and she is worse than a
prostitute. The Respondent often uses the word ''Bitch'' even in the presence of students and often to us. The Respondent has not directly sexually
harassed us physically or verbally. But he normally uses and refers to various persons as Bitch. This had a bad influence on the boys and especially
with the students in the classes of 8th standard.
C. Jaqueline : He spoke to me about one of the student''s mother that she called him to bed. He should not have spoken such words to me, being a
lady colleague. This happened more than once.......... He would also address other teachers as Bitch when talking to the students. He used the
names of one particular lady (parent) and some students in the question paper repeatedly.
22. A reading of the complaints given by various teachers and statements given by them before the Committee clearly showed that the allegations
comes within the definition of the term ''sexual harassment'' made in Vishaka''s case. Further this court had already in its final order dated 7.4.2011
in paragraph 42 referred to the complaint made by the Principal dated 28.01.2011 to the Correspondent. Since the complaint was sent by a
religious priest and he happened to be the head of the institution, the said complaint must necessarily be enquired into. The complaint clearly
referred to the fifth respondent misbehaving and sexually harassing not only the teachers but also referred the complaints of the parents. It is
needless to state that one such parent is Mrs. Sneha Rajan, the wife of the petitioner and the mother of a student.
23. The stand taken by the management and obviously accepted by the Special Committee clearly showed that their understanding was a third
party cannot lead evidence and it will delay the process. The Special Committee which enquired into the allegations made by the women staff
recorded that Mrs. Sneha Rajan has never made a complaint. It had clearly forgotten the real import of the Vishaka''s case. Hence it is necessary
to recapitulate the judgment in Vishaka and others Vs. State of Rajasthan and Others, , relating to its guidelines, the duty cast upon the employer,
definitions of various terms, the composition of the complaints committee as well as the scope for third party complaints of harassment. In
paragraphs 17 and 18 of the judgment, it was observed as follows:
17.The GUIDELINES and NORMS prescribed herein are as under: HAVING REGARD to the definition of ''human rights'' in Section 2(d) of the
Protection of Human Rights Act, 1993,
TAKING NOTE of the fact that the 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,
It is necessary and expedient for employers in workplaces as well as other responsible persons or institutions to observe certain guidelines to
ensure the prevention of sexual harassment of women:
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 prosecution 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.
.............
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.
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 a 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 report on the compliance with the aforesaid guidelines including on the reports of the Complaints
Committee to the Government Department.
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.
18. Accordingly, we direct that the above guidelines and norms would be strictly observed in all workplaces for the preservation and enforcement
of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted
to occupy the field.
(Emphasis added)
24. Therefore, Vishaka''s guidelines not only dealt with the women employees, but also the sexual harassment faced by third parties or outsiders
and the employer''s obligation to take action. Hence the minutes recorded by the Special Enquiry Committee is not in conformity with the
guidelines issued by Vishaka''s case. On the other hand, the Committee itself had thoroughly misunderstood the Vishaka guidelines. Therefore, the
third respondent school should change the Committee and must appoint a Special committee which will have its persons who are conscious of the
decision in Vishaka''s case. It must also enquire into the complaints given by the parents in this case, especially when the petitioner has come to this
court and had asserted that his wife was sexually harassed by the fifth respondent and most of the teachers in their written complaints have
mentioned about the fifth respondent''s misbehaviour or making references with sexual overtones of even parents.
25. The Supreme Court in Apparel Export Promotion Council Vs. A.K. Chopra, has also held as to how the statement of witnesses should be
appreciated by the employer and by courts and in paragraph 28, it was observed as follows:
28.... the courts are required to examine the broader probabilities of a case and not get swayed by insignificant discrepancies or narrow
technicalities or the dictionary meaning of the expression ''molestation''. They must examine the entire material to determine the genuineness of the
complaint. The statement of the victim must be appreciated in the background of the entire case. Where the evidence of the victim inspires
confidence, as is the position in the instant case, the courts are obliged to rely on it. Such cases are required to be dealt with great sensitivity.
Sympathy in such cases in favour of the superior officer is wholly misplaced and mercy has no relevance........
(Emphasis added)
26. The Supreme Court took exception to the management of a school in not constituting Vishaka committee and directed it to pay cost vide its
judgment in D.S. Grewal Vs. Vimmi Joshi and Others, as the management of the school is guilty of violation of guidelines and in paragraph 28 it
was observed as follows:
28..... As the management of the School is guilty of violating the guidelines issued by this Court in Vishaka1, we direct the management to pay and
bear all the costs of the first respondent. Counsel''s fee is assessed at Rs 50,000.
27. It is high time that the School committee is conscious of the Vishaka guidelines and that the norms prescribed should be strictly observed. The
Supreme Court had framed such guidelines in terms of its power under Article 141. By virtue of Article 142, all authorities are bound to implement
the decision of the Supreme Court. This court had to take this extraordinary step of directing the third respondent to abide by such guidelines and
to strictly implement the same. Hence, it is clarified that the school management should appoint a new Special Committee which is aware of the
guidelines in Vishaka''s case and it must be directed to enquire into complaints of not only teachers, but also even third parties. The term ''sexual
harassment'' has a wider meaning as given by Vishaka''s judgment.
28. In the earlier order, dated 7.4.2011, in paragraph 56(a), this court has clearly held that the complaints received from the students, parents as
well as Parents Teachers'' Association must be enquired into. The report of the Principal (fourth respondent) sent to the school management should
be the basis for the enquiry. The fourth respondent has not filed any counter affidavit separately for reasons best known. Nevertheless being the
head of the school, he must be made available for being examined by the enquiry officer as well as by the special committee under Vishaka''s case.
The said report also shall be taken on file and marked in the proceedings by the special committee before any finding is rendered.
29. With reference to the students who are minor witnesses to be examined, the management though referred to Sakshi Vs. Union of India (UOI)
and Others, , but has not understood the real import of the said judgment. The enquiry officer has also not made his stand clearly. Therefore, for
the sake of repetition, this court is inclined to refer to the guidelines issued in the Sakshi''s case. Though it is in the context of sexual harassment, but
the apprehension raised therein will apply to a child witness in any forum. Hence it is necessary to refer to the following passage found in paragraph
34, which reads as follows:''34.The writ petition is accordingly disposed of with the following directions:
(1) The provisions of sub-section (2) of Section 327 CrPC shall, in addition to the offences mentioned in the sub-section, also apply in inquiry or
trial of offences under Sections 354 and 377 IPC.
(2) In holding trial of child sex abuse or rape:
(i) a screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the
body or face of the accused;
(ii) the questions put in cross-examination on behalf of the accused, insofar as they relate directly to the incident, should be given in writing to the
presiding officer of the court who may put them to the victim or witnesses in a language which is clear and is not embarrassing;
(iii) the victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required.
These directions are in addition to those given in State of Punjab v. Gurmit Singh.
(Emphasis added)
Though this case arose out of child abuse, it must be noted that the same sensitivity should be observed in all cases of child witnesses.
30. The fifth respondent in his counter affidavit in paragraphs 17 to 19 had stated as follows:
17....The clarification with reference to the child witness in para 6B, it is submitted that the allegations so far as I am concerned, by a child and that
is being enquired into. Therefore the question of sending me out of the enquiry is perse illegal and such a request cannot be entertained.
18....the basic principle of natural justice is that the enquiry should be conducted in my presence. It is also a fact that all the 4 or 5 students have
given evidence never objected to my presence. It is a matter of record that the enquiry was conducted in the presence of all the students along with
their parents and myself alone representing my side.
19. The allegation that the children were uncomfortable is also not correct. The further averments that all the parents stated that the child should not
be cross examined by me and the enquiry officer has to cross examine is to say the least a mockery of principles of natural justice.''
(Emphasis added)
31. If this is the understanding of the fifth respondent, then certainly the child witnesses will have to be protected in the enquiry. Therefore, the
enquiry officer is well directed to comply with the guidelines issued by the Supreme Court in Sakshi''s case in the matter of cross examination of the
children. Since the fifth respondent is their school teacher and students are likely to continue their studies in the same school, it is just and necessary
witnesses are not directly brought under eye contact with the charge sheeted teacher and they should be cross examined only in the manner
directed by the Supreme Court.
32. Since the time frame expired, this court directs the enquiry officer to decide the matter as directed by the division bench, wherein it was stated
that the enquiry shall be expedited. Therefore, this court is not fixing any outer time limit, but leaves it to the enquiry officer to fix his outer time limit
by which proper findings can be rendered in the enquiry.
33. Another objection was raised by the third and fifth respondents with reference to the maintainability of the clarification application. In this
context, it is necessary to refer to a judgment of the Supreme Court in B.C. Chaturvedi Vs. Union of India and others, B.L. Hansaria, J. in his
concurring judgment in paragraphs 21 and 23 had observed as follows:
21. I am in respectful agreement with all the conclusions reached by learned brother Ramaswamy, J. This concurring note is to express my view on
two facets of the case. The first of these relates to the power of the High Court to do ''complete justice'', which power has been invoked in some
cases by this Court to alter the punishment/penalty where the one awarded has been regarded as disproportionate, but denied to the High Courts.
No doubt, Article 142 of the Constitution has specifically conferred the power of doing complete justice on this Court, to achieve which result it
may pass such decree or order as deemed necessary; it would be wrong to think that other courts are not to do complete justice between the
parties. If the power of modification of punishment/penalty were to be available to this Court only under Article 142, a very large percentage of
litigants would be denied this small relief merely because they are not in a position to approach this Court, which may, inter alia, be because of the
poverty of the person concerned. It may be remembered that the framers of the Constitution permitted the High Courts to even strike down a
parliamentary enactment, on such a case being made out, and we have hesitated to concede the power of even substituting a punishment/penalty,
on such a case being made out. What a difference! May it be pointed out that Service Tribunals too, set up with the aid of Article 323-A have the
power of striking down a legislative act.
23. It deserves to be pointed out that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground
to think that they have not to do complete justice, and if moulding of relief would do complete justice between the parties, the same cannot be
ordered. Absence of provision like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no
provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo
Singh case 13 that the High Courts too can exercise power of review, which inheres in every court of plenary jurisdiction. I would say that power
to do complete justice also inheres in every court, not to speak of a court of plenary jurisdiction like a High Court. Of course, this power is not as
wide as which this Court has under Article 142. That, however, is a different matter.
(Emphasis added)
34. With reference to power of clarification available to the Court, the Supreme Court in K.A. Ansari and Another Vs. Indian Airlines Ltd., had
observed as follows:
17.....At the same time, there is no prohibition on a party applying for clarification, if the order is not clear and the party against whom it has been
made is trying to take advantage because the order is couched in ambiguous or equivocal words.
35. Therefore, the objections raised by the respondents are overruled. Since this is a matter of first kind and this court was not inclined to send the
matter before the Commission for Child Rights, but nevertheless protection should be given to the children. Since the school management was
given the responsibility for taking appropriate action, this court is inclined to issue necessary clarification so that in future such defects will not be
crept-in in such proceedings which if on a later date found to be defective, it will cause prejudice to the parties.
36. In the result, these three miscellaneous petitions are disposed of with the following directions :
(i) The Special Enquiry committee constituted under Vishaka''s case must be disbanded and a fresh Committee should be appointed who are
familiar with the Vishaka''s guidelines;
(ii) The statement of Mrs. Sneha Rajan, a parent of the student must be examined even though she may be a third party;
(iii) The complaint of the Principal dated 28.01.2011 sent to the management should also be made available to the committee and the Principal
should also be examined before the committee;
(iv) The Special committee should give its report strictly in accordance with the guidelines issued by Vishaka''s case;
(v) The enquiry officer (Mr.Jeyaraman, retired District judge), who was appointed, will permit the child witnesses to be examined strictly in the light
of Sakshi''s case referred to above. He will also record the statement of the Principal including the complaint dated 28.01.2011 sent by him.
(vi) There cannot be any restriction in number of parents / students who are willing to depose before the enquiry officer including the
representatives of the Parents'' Teachers'' Association.
37. Before parting it must be recorded that the clarifications issued herein do not militate against the earlier order issued by this Court and it only
re-states the legal position with references to the issues over which clarification was sought. As the matter is at the threshold, no one can be said to
be prejudiced. It is heartening to note that the counter filed by the third respondent clearly shows that they are willing to abide any clarifications
issued by this Court.
