Orissa High Court
Afr Md. Equbal vs Commissioner on 3 May, 2024
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P(C) NO. 5842 OF 2009
In the matter of an application under Articles 226 and
227 of the Constitution of India.
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AFR Md. Equbal ..... Petitioner
-Versus-
Commissioner, Kendriya Vidyalaya ..... Opp. Parties
Sangathan, New Delhi and others
For petitioner : Mr. S.K. Mishra, Sr. Advocate
along with M/s B. Jena,
E. Agarwal and S. Sahu,
Advocates
For opp. parties : Mr. H. Tripathy, Advocate P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR. JUSTICE G. SATAPATHY DECIDED ON : 03.05.2024 DR. B.R. SARANGI,J. The petitioner, who was working as T.G.T. (SST) in Command Hospital, Kendirya Vidyalaya Sangathan (KVS), Alipore, Kolkata in the State of West Bengal, has filed this writ petition seeking to quash the order of punishment dated 07.02.2007 passed by the Commissioner, KVS under Annexure-9, by which the Page 1 of 41 // 2 service of the petitioner has been terminated in exercise of power conferred under Article 81 (b) of the Education Code of KVS and directed to be paid the consolidated pay and allowances, as admissible under Article 81 (b) of the Education Code of KVS and that the period of suspension be treated as non-duty, which has been confirmed in appeal, vide order dated 18/20.12.2007, by the Vice Chairman, KVS and Appellate Authority under Annexure-10, and affirmed by the Central Administrative Tribunal, Cuttack Bench, Cuttack vide judgment dated 09.03.2009 passed in O.A. No.363 of 2007 under Annexure-3.
2. The factual matrix of the case, in brief, is that the petitioner, while functioning as TGT (SST) in Command Hospital, Kendirya Vidyalaya Sangathan (KVS), Alipore, Kolkata in the State of West Bengal, on 17.01.2006, committed an act of moral turpitude having been indulged in immoral sexual behaviour by molesting a girl student of class-II, while she was returning from morning assembly. Mother of the victim girl, in the above regard, submitted a written complaint to the Page 2 of 41 // 3 Principal, KVS and requested to take strict action against the petitioner. As a result thereof, summary inquiry was ordered in the matter, vide order dated 19.01.2006, by constituting a committee comprising of Education Officer, KVS, Regional Office, Kolkata, Principal, KVS No.2, Kancharpara and TGT (SST), KVS, Command Hospital. The committee, vide report dated 03.03.2006, concluded to the following effect:-
Description of allegation Findings Md. Iqubal, TGT (SSt) pressed Established the left breast of Torsha Choudhury of Class-II on 17.01.2006 Exhibits immoral sexual Established behavious towards girls.
2.1. The report of the summary inquiry committee along with the statements recorded during summary inquiry, charges and facts in support of the charges were forwarded to the petitioner, who was under suspension, through Principal, KVS, Command Hospital, vide memorandum dated 20.09.2006, which was further forwarded by the Principal, KVS No.1, Ishapore to the petitioner through speed post at the residential address Page 3 of 41 // 4 of the petitioner, i.e., Plot No. 9/1 (37), Naren Sarkar Road, Guddi Apartment, Post-Barlsa, Kolkata. In response to the same, the petitioner submitted representation on 25.10.2006 and informed the Commissioner, KVS through Principal, KVS, Command Hospital that the memorandum dated 20.09.2006 dispatched by the Principal, KVS No.1, Ishapore received without the enclosures. Consequentially, the Principal, KVS, Ishapore again forwarded another sets of photocopies of charges, facts in support of the charges, copies of statement recorded during inquiry and copy of summary inquiry report, vide letter dated 26.10.2006.
On receipt of the same, the petitioner, who was under
suspension, submitted another representation on 26.10.2006 and requested the Commissioner to provide certain documents to enable him to submit his representation against the show cause notice dated 20.09.2006. As per the documents asked, the petitioner was supplied with the documents mentioned at sl.no.(i) to (vi) and he was given another opportunity to submit his representation to the show cause notice as to why Page 4 of 41 // 5 his services should not be terminated under Article 81(b) of the Education Code of KVS, vide memorandum dated 22.12.2006, which was also received by the petitioner on 28.12.2006. The petitioner was also advised to take the pencil note of the relevant portion of the Education Code of KVS by visiting KVS No.1, Ishapore. He was also informed that in case he failed to submit his representation within 15 days of the receipt of the memorandum, it will be presumed that he had nothing to say and orders will be passed against him ex-parte under the provisions of Article 81(b) of the Education Code of KVS. Instead of submitting his reply to the notice of show cause, the petitioner again filed representation dated 09.01.2007 to the following effect:-
"a) Through his representation dated 26.10.2006, he had sought copies of charges, facts in support of charges, copies of statements recorded during enquiry, copy of report of summary enquiry as the same was not served with the listed documents along with show cause notice.
b) After perusal of documents sent to him through letter dated 26.10.2006 of Principal, Kendriya Vidyalaya, No.1 Ishapore it was found that his statements recorded Page 5 of 41 // 6 during summary enquiry have not been found, hence he had requested to provide another set of documents through a letter dated 02.11.2006.
c) He had received the listed documents along with memo dated 2.12.2006 but other documents have not been supplied and in fact his aforesaid representation dated 02.11.2006 has not been dealt with at all in the memorandum dated 22.12.2006."
2.2. On perusal of records referred to in the representation dated 02.11.2006, it was found that the documents relevant to the case sought for have already been provided thrice to the petitioner. The disciplinary authority perused the report of preliminary inquiry committee and summary inquiry committee and considered all the materials on record and also took into consideration the complaint of the parents and also the statements recorded during the summary enquiry and other statements of individuals recorded in the summary enquiry. The disciplinary authority also perused the statements of the petitioner made before the enquiry committee on 13.02.2006 and representation dated 09.01.2007 submitted by the petitioner in reply to the Page 6 of 41 // 7 memorandum dated 22.12.2006. The disciplinary authority found that the summary inquiry committee has found the petitioner guilty of moral turpitude. The disciplinary authority prima facie having satisfied that the petitioner was found guilty of moral turpitude, as he was found indulging in immoral sexual misbehaviour with a girl student of class-II of KVS, formed an opinion that it is not expedient to hold a regular inquiry under the CCS (CC&A) Rules, 1965, as it would cause serious embarrassment to the victim girl and her parents. The disciplinary authority was also of the view that holding of regular inquiry is not expedient because of the tender age of the girl student, as her safety and security have to be ensured by preventing her exposure to the tardy process of cross-examination in the inquiry in relation to the conduct of a Sangathan employee, resulting in sexual harassment of the girl student. Thereby, the disciplinary authority dispensed with holding of regular inquiry in accordance with the CCS (CC&A) Rules, 1965 and that in exercise of power conferred under Article 81
(b) of the Education Code of KVS found that the charged Page 7 of 41 // 8 employee was guilty of moral turpitude and prima facie he was guilty of the same. Accordingly, the disciplinary authority imposed penalty by terminating the services of the petitioner with immediate effect and directed to pay consolidated pay and allowances, as admissible under Article 81 (b) of the Education Code of KVS and that the period of suspension be treated as non-duty. Against the order dated 07.02.2007 passed by the disciplinary authority under Annexure-9, the petitioner preferred appeal before the appellate authority and by order dated 18/20.12.2007 the appellate authority, after giving due opportunity of hearing to the petitioner, confirmed the order of punishment imposed by the disciplinary authority under Annexure-10. Against that order, the petitioner preferred O.A. No. 363 of 2007 before the Central Administrative Tribunal, Cuttack Bench, Cuttack and by order dated 09.03.2009, the Tribunal re- affirmed the order of punishment imposed by the disciplinary authority, as well as the appellate authority and dismissed the Original Application. Hence, this writ petition.
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3. Mr. B. Jena, learned counsel appearing for the petitioner argued with vehemence and made emphatic submission on the allegations made by the mother of the victim and contended that the preliminary fact finding committee, after completion of the enquiry, submitted its report on 30.01.2006 before the Principal with an observation that "the facts have been found by the committee unanimously" and, as such, the Principal, after receiving the report, without framing any charges against the petitioner, simply forwarded the same to the Asst. Commissioner, KVS, Kolkata region. On receipt of the same, the Asst. Commissioner, without going through the same and without framing any charges, directed the petitioner to show cause and constituted a team to conduct summary enquiry, vide its letter dated 01.02.2006. It is contended that on 13.02.2006, the summary enquiry committee, after conducting an ex parte enquiry and on the basis of the report of the fact finding committee, without giving any weightage to the evidences adduced in favour of the petitioner, as well as his long service career and without affording reasonable Page 9 of 41 // 10 opportunity to defend, submitted its report on 03.03.2006 before the Commissioner finding the petitioner guilty of the alleged occurrence. Thereby, there was non-compliance of principles of natural justice by the committee and on that basis the order dated 07.02.2007 was passed by the disciplinary authority, in exercise of power conferred under Article 81 (b) of the Education Code of KVS, by terminating the service of the petitioner, which was confirmed by the Vice-Chairman vide order dated 18/20.12.2007 under Annexure-10 in appeal preferred by the petitioner on 20.03.2007, and re-affirmed by the Tribunal by judgment dated 09.03.2009 in dismissing the Original Application filed by the petitioner. Thereby, it is contended that the Tribunal has failed to exercise its jurisdiction vested on it and, without applying any judicial mind, confirmed the order of punishment imposed by the disciplinary authority, as well as the appellate authority. It is further contended that initially five members were appointed to conduct the enquiry, but all the enquiry processes have been done at the behest of the Principal as well as Asst. Page 10 of 41
// 11 Commissioner and, as such, the statement of the petitioner was disbelieved by the committee on the ground that he does not teach class-II students and, therefore, he has no connection with the parents of the students of class-II, though such fact has been admitted by the victim student. But the same was not taken into consideration by the authority and the order of punishment was passed. Therefore, it is contended that the statement given by the mother of the victim girl cannot be relied upon to impose punishment of dismissal from service of the petitioner. Thus, it is contended that the order of punishment so imposed by the disciplinary authority, which has been confirmed by the appellate authority and re-affirmed by the Tribunal, cannot be sustained and the same should be quashed.
4. Mr. H. Tripathy, learned counsel appearing for the opposite party-KVS vehemently contended that the conduct of the petitioner is absolutely deprivable, in view of his immoral character, which constitute moral turpitude by misbehaving a student of class-II, who sustained injury and, as such, the mother of the victim Page 11 of 41 // 12 has lodged a complaint. Therefore, on the basis of preliminary enquiry report, a summary enquiry was conducted by a committee consisting of three members. The team conducted the summary inquiry on 13.02.2006. During course of enquiry, the committee interacted with the victim girl, a student of class-II, her mother, class teacher of class-II and randomly selected girl/boys students of different classes, some teachers, the petitioner and the Principal, KVS, Command Hospital and submitted its report establishing the allegation of molestation against the petitioner. The petitioner had also exhibited immoral sexual behaviour towards other girl students, which was also established. The summary inquiry committee witnessed an outpouring of emotions and outburst of allegations regarding the highly deplorable atrocious and immoral sexual behaviour of the petitioner. The students suo- motu condemned the sexual advantage and abuses of the petitioner. It is further contended that it is definite that no girl or an innocent adolescent could stake her modesty to tarnish the image of her teacher unless he Page 12 of 41 // 13 behaves in a manner that affect her sensibilities. It is further contended that the petitioner has allegedly molested girls irrespective of age, made vulgar display, used dirty and un-parliamentary parlance, visited parents and exerted influence not to testify and tutor students and also exhibited behaviour unbecoming of a teacher. Therefore, the matter was referred to the Commissioner, KVS, who issued notice of show cause on 20.09.2006 and given opportunity of hearing to the petitioner along with documents to submit a representation as to why his services should not be terminated under Article 81 (b) of the Education Code. Instead of several opportunities given, the petitioner did not give any reply, but submitted representation after representation seeking some documents and some statements and ultimately the petitioner was called upon to take the pencil note of the relevant portion of the Education Code of KVS by visiting Kendriya Vidyalaya and was also allowed 15 days time. Even though such opportunity was given to the petitioner, he did not submit his reply and, on the other hand, filed another Page 13 of 41 // 14 representation seeking certain documents, which were also complied with. Thereafter, the disciplinary authority, taking into consideration the materials available on record, imposed punishment and, thereby, no illegality or irregularity can be said to be committed by the disciplinary authority in imposing such punishment, which can be called in question before the Tribunal in filing the Original Application. It is further contended that preliminary enquiry committee was constituted by the Principal comprising six members, who gave finding that the petitioner has admitted his guilt and tendered apology before the members of the preliminary enquiry committee on 23.01.2006 for his misconduct by saying "however in response to my written statement and act of touching hand of the child to make her proper in the line in case hurt the child and sentiments of her mother, I beg apology for that". Further, the petitioner appeared before the committee and when he was asked to give his written statement in response to the allegation, the petitioner reacted and said "whatsoever allegations are against me, I accept and I am Page 14 of 41 // 15 ready for punishment, I apologize for my action. Mafi Chahta hun" and also stated "whatsoever complaint are made by the parent, I apologized". It is further contended that a few randomly selected girl students of class-VIII (B) were asked about the behaviour of the petitioner and incidentally the petitioner is the class teacher as well as the subject teacher of that class, and the girls, on request of anonymity said that the petitioner had often tried to come very close to them and had passed complements on their physical beauty such as "you are cute, you are beautiful, your hand are beautiful, soft and pink etc. He stroked the back of their necks and kissed them on the hand and fondled their cheeks". Thereby, the very conduct of the petitioner is objectionable and that too being a teacher in a noble institution leads to moral turpitude. Therefore, the action taken against the petitioner is well justified, which does not require any interference of this Court. Consequentially, dismissal of the writ petition is sought for.
To substantiate his contention, learned counsel appearing for the opposite party-KVS has relied Page 15 of 41 // 16 upon the judgments of the apex Court as well as this Court in the cases of Avinash Nagra v. Navodaya Vidyalaya Samiti and others, (1997) 2 SCC 534; Director, Navodaya Vidyalaya Samiti v. Babban Prasad Yadav, (2004) 13 SCC 568; Commissioner, K.V. Sangathan v. Rathin Pal, SLP (C) No. 4627 of 2008 disposed of on 16.08.2010; Secretary, Lucy Sequeira Trust v. Kailash Ramesh Tandel, 2019 (I) OLR (SC) 866; and judgment of this Court in the case of Kendriya Vidyalaya Sangathan v. Ananta Chandra Das, W.P.(C) No. 20352 of 2016 disposed of on 17.02.2017.
5. This Court heard Mr. B. Jena, learned counsel appearing for the petitioner and Mr. H. Tripathy, learned counsel appearing for opposite party-KVS in hybrid mode. Pleadings have been exchanged between the parties and with the consent of learned counsel for the parties the writ petition is being disposed of finally at the stage of admission.
6. On the basis of the factual matrix, as discussed above, the admitted fact is that the petitioner Page 16 of 41 // 17 molested a class-II girl student, who sustained injury on her private parts and consequentially the mother of the victim lodged complaint and on that basis two enquiries were conducted and cumulatively both the enquiry committees reported against the petitioner and, as such, while conducting such enquiry the petitioner was also given adequate opportunity of being heard. Furthermore, before taking action, the disciplinary authority had also given opportunity of hearing to the petitioner. But, instead of filing his reply, the petitioner tried to buy some time to vigil out the allegations made against him. But the disciplinary authority, by recording the reasons in the order itself for not conducting the regular enquiry under the provisions of CCS (CC&A) Rules, 1965, on the basis of two inquiry reports imposed penalty under Article 81 (b) of the Education Code of KVS, which was confirmed by the appellate authority in appeal as well as by the Tribunal.
7. In Avinash Nagra (supra), the apex Court in paragraphs-6, 10, 11 and 12 held as under:-
"6. The first question that arises for consideration is: whether the dismissal of Page 17 of 41 // 18 the appellant in terms of his letter of appointment is vitiated by any error of law and whether he is entitled to a full-fledged enquiry and opportunity to cross-examine the girl students who gave the statements against the appellant? The second question is: whether the High Court was right in dismissing the writ petition under the impugned order dated January 9, 1996? Indisputably, the provisions of C.C.S (C.C.O) Rules, 1965 of the Government of India would be applicable to the employees of Navodaya Vidyalaya. The respondent is running nation-wide co- educational specialised and prestigious schools in which 1/3rd of the students are girls. With a view to ensure safety and security to the girl students, to protect their modesty and prevent their unnecessary expose at an enquiry in relation to the conduct of a teacher resulting in sexual harassment of the girl student etc. involving misconduct or moral turpitude, resolution prescribing special summary procedure was proposed and published by notification dated December 23, 1993, after due approval of the Executives of the respondent-Samiti. The Minister of Human Resources and Development, Government of India is its Chairman. The notification postulates to dispense with regular enquiry under the Rules. In the case of a temporary employee whose integrity and conduct is doubtful but difficult to prove with sufficient documentary evidence to establish the charge and whose retention in service would be prejudicial to the interest of the institution or whose grave misconduct and the enquiry under the Rules would be likely to result in embarrassment to the class of employees or is likely to endanger the reputation of the institution, the appointing authority, for the reasons to be recorded in the file, may terminate his services in terms of the letter Page 18 of 41 // 19 of appointment. The order of termination need not contain any reasons but the appointing authority has to obtain prior approval of the Deputy Director. Similarly, when the Director is satisfied, after summary inquiry, that there was a prima facie guilt of moral turpitude involving sexual harassment or exhibition of immoral behavior towards any girl student, under Clause (b) of the above notification, the Director "can terminate the services of that employee by giving him one month's or three months' pay and allowances in lieu thereof, depending upon whether the guilty employee is temporary or permanent in the services of the Samiti. In such cases, procedure prescribed for holding enquiry for imposing major penalty in accordance with the Rules as applicable to the employees of the Respondent, shall be dispensed with provided that the Director is of the opinion that it is not expedient to hold regular enquiry on account of serious embarrassment to the student or his guardians or such other practical difficulties. The Director shall record in writing the reasons under which it is not reasonably practicable to hold such enquiry and he shall keep the Chairman of the Samiti informed of the circumstances leading to such termination of services. It would thus be seen that in a given situation, instead of adopting the regular procedure under the Rules to terminate the services of an employee, the notification prescribes the procedure to dispense with such enquiry, subject to the conditions mentioned above. The question is: whether the order terminating the services of the appellant in terms of his appointment letter is in violation of the Rules or the principles of natural justice? Before answering the question, it is necessary to consider the need for the education and the place of the teacher in that behalf. Article 45 of the Page 19 of 41 // 20 Constitution enjoins the State to endeavour to provide free and compulsory education to all children, till they complete the age of 14 years. This Court has held that right to education is a Fundamental Right and the State is required to organise education through its agencies or private institutions in accordance with the law and the regulations or the scheme. As laid down by this Court, it is the duty of the State to provide compulsory primary education free; secondary education and the university education according to the appropriate statutes and the schemes. The Union of India had adopted the Navodaya Vidyalaya Scheme to impart discipline and higher learning upto the stage of secondary education. Article 51A in Chapter IVA of the Fundamental Duties envisages that it shall be the duty of every citizen of India to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem. The citizen should cherish and follow the noble ideals which inspired our national struggle for freedom; to uphold and protect the sovereignty, unity and integrity of India. The citizens should , as a duty, defend the country and render national service when called upon to do so; to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities. The citizen, as a duty, should renounce practices derogatory to the dignity of women; value and preserve the rich heritage of our composite culture; protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. Every citizen should develop scientific temper, humanism and the spirit of inquiry and reform; safeguard public property and abjure violence; strive Page 20 of 41 // 21 towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. These ideals should be nurtured and imbibed by imparting to the receptive minds of the children from their childhood. In Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi and Ors MANU/SC/0583/1991 :
[1991]1SCR773 , this Court, while holding that right to education is a fundamental right, had held the native endowments of men are by no means equal. Education means a process which provides for intellectual, moral and physical development of a child for good character formation; mobility to social status; an opportunity to scale equality and a powerful instrument to bring about social change including necessary awakening among the people. Education promotes intellectual, moral and social democracy. Education lays foundation of good citizenship and is a principal instrument to awaken the child to intellectual and cultural pursuits and values in preparing the child for later professional training and helps him to adjust to the new environment. Education, therefore, should be co-related to the social, political or economic needs of our developing nation fostering secular values, breaking the barriers of casteism, linguism, religious bigotry and should act as an instrument of social change. Education kindles its flames for pursuit of excellence, enables and enables the young mind to sharpen his or her intellect more with reasoning than blind faith to reach intellectual heights and inculcate in him or her to strive for social equality and dignity of person.
xxx xxx xxx
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10. Mahatma Gandhiji, the Father of the Nation has stated that "a teacher cannot be without character. If he lacks it, he will like salt without its savour. A teacher must touch the hearts of his students. Boys imbibe more from the teacher's own life than they do from books. If teachers impart all the knowledge in the world to their students but do not inculcate truth and purity amongst them, they will have betrayed them." Shri Aurobindo has stated that "it is the teacher's province to hold aloft the torch, to insist at all times and at all places that this nation of ours was founded on idealism and that whatever may be the prevailing tendencies of the times, our children shall learn to live among the sun-lit peaks." Dr. S. Radhakrishnan has stated that "we in our country look upon teacher as gurus or, as acharyas. An Acharya is one whose achar or conduct is exemplary. He must be an example of Sadachar or good conduct. He must inspire the pupils who are entrusted to his care with love of virtue and goodness. The ideal of a true teacher is andhakaraniridhata gurur itya bhidhiyate.
Andhakar is not merely intellectual ignorance, but is also spiritual blindness. He who is able to remove that kind of spiritual blindness is called a guru. Are we deserving the noble appellation of an acharya or a guru?" Swami Vivekananda had stated that "the student should live from his very boyhood with one whose character is a blazing fire and should have before him a living example of the highest teaching. In our country, the imparting of knowledge has always been through men of renunciation. The charge of imparting knowledge should again fall upon the shoulder of Tyagis."
11. It is in this backdrop, therefore, that the Indian society has elevated the teacher as 'Guru Brahma, Gurur Vishnu Guru Devo Page 22 of 41 // 23 Maheshwaraha'. As Brahma, the teacher creates knowledge, learning, wisdom and also creates out of his students, men and women, equipped with ability and knowledge, discipline and intellectualism to enable them to face the challenges of their lives. As Vishnu, the teacher is preserver of learning. As Maheswara, he destroys ignorance. Obviously, therefore, the teacher was placed on the pedestal below the parents. The State has taken care of service conditions of the teacher and he owes dual fundamental duties to himself and to the society. As a member of the noble teaching profession and a citizen of India he should always be willing, self-disciplined, dedicated with integrity to remain ever a learner of knowledge, intelligently to articulate and communicate and imbibe in his students, as social duty, to impart education, to bring them up with discipline, inculcate to abjure violence and to develop scientific temper with a spirit of enquiry and reform constantly to rise to higher levels in any walk of life nurturing Constitution ideals enshrined in Article 51A so as to make the students responsible citizens of the country. Thus the teacher either individually or collectively as a community of teachers, should regenerate this dedication with a bent of spiritualism in broader perspective of the Constitutionalism with secular ideologies enshrined in the Constitution as an arm of the State to establish egalitarian social order under the rule of law. Therefore, when the society has given such a pedestal, the conduct, character, ability and disposition of a teacher should be to transform the student into a disciplined citizen, inquisitive to learn, intellectual to pursue in any walk of life with dedication, discipline and devotion with an inquiring mind but not with blind customary beliefs. The education that is imparted by the teacher determines the evel Page 23 of 41 // 24 of the student for the development, prosperity and welfare of the society. The quality, competence and character of the teacher are, therefore, most significant to mould the calibre, character and capacity of the students for successful working of democratic institutions and to sustain them in their later years of life as a responsible citizen in different responsibilities. Without a dedicated and disciplined teacher, even the best education system is bound to fail. It is, therefore, the duty of the teacher to take such care of the pupils as a careful parent would take of its children and the ordinary principle of vicarious liability would apply where negligence is that of a teacher. The age of the pupil and the nature of the activity in which he takes part, are material factors determining the degree and supervision demanded by a teacher.
12. It is axiomatic that percentage of education among girls, even after independence, is fathom deep due to indifference on the part of all in rural India except some educated people. Education to the girl children is nation's asset and foundation for fertile human resources and disciplined family management, apart from their equal participation in socio-economic and political democracy. Only of late, some middle class people are sending the girl children to co-educational institutions under the care of proper management and to look after the welfare and safety of the girls. Therefore, greater responsibility is thrust on the management of the schools and colleges to protect the young children, in particular, the growing up girls, to bring them up in disciplined and dedicated pursuit of excellence. The teacher who has been kept in charge, bears more added higher responsibility and should be more exemplary. His/her character and conduct should be more like Rishi and as loco parentis and such is the duty, responsibility Page 24 of 41 // 25 and charge expected of a teacher. The question arises: whether the conduct of the appellant is befitting with such higher responsibilities and as he by his conduct betrayed the trust and forfeited the faith whether he would be entitled to the full- fledged enquiry as demanded by him? The fallen standard of the appellant is a tip of the ice berg in the discipline of teaching, a noble and learned profession; it is for each teacher and collectively their body to stem the root to sustain the faith of the society reposed in them. Enquiry is not a panacea but a nail on the coffin. It is self inspection and correction that is supreme. It is seen that the rules wisely devised have given the power to the Director, a highest authority in the management of the institution to take decision, based on the fact situation, whether a summary enquiry was necessary or he can dispense with the services of the appellant by giving pay in lieu of notice. Two safeguards have been provided, namely, he should record reasons for his decision not to conduct an enquiry under the rules and also post with facts the information with Minister, Human Resources Department, Government of India in that behalf. It is seen from the record that the appellant was given a warning of his sexual advances towards a girl student but he did not correct himself and mend his conduct. He went to the girl hostel at 10 p.m. in the night and asked the Hostel helper, Bharat Singh to misguide the girl by telling her that Bio-Chemistry Madam was calling her; believing the statement, she came out of the hostel. It is the admitted position that she was an active participant in cultural activities. Taking advantage thereof, he misused his position and made sexual advances towards her. When she ran away from his presence, he perused her to the room where she locked herself inside; he banged the door. When he was informed Page 25 of 41 // 26 by her room mates that she was asleep, he rebuked them and took the torch from the room and went away. He admitted his going there and admitted his meeting with the girl but he had given a false explanation which was not found acceptable to an Inquiry Officer, namely, Asstt. Director. After conducting the enquiry, he submitted the report to the Director and the Director examined the report and found him to be not worthy to be a teacher in the institution. Under those circumstances, the question arises: whether the girl and her room-mates should be exposed to the cross examination and harassment and further publicity? In our considered view, the Director has correctly taken the decision not to conduct any enquiry exposing the students and modesty of the girl and to terminate the services of the appellant by giving one month's salary and allowances in lieu of notice as he is a temporary employee under probation. In the circumstances, it is very hazardous to expose the young girls for tardy process of cross- examination. Their statements were supplied to the appellant and he was given an opportunity to controvert the correctness thereof. In view of his admission that he went to the room in the night, though he shifted that timings from 10 p.m. to 8 p.m. which was found not acceptable to the respondents and that he took the torch from the room, do indicate that he went to the room. The misguiding statement sent through Bharat Singh, the hostel peon, was corroborated by the statements of the students; but for the misstatement, obviously the girl would not have gone out from the room. Under those circumstances, the conduct of the appellant is unbecoming of a teacher much less a loco parentis and, therefore, dispensing with regular enquiry under the rules and denial of cross-examination are legal and not Page 26 of 41 // 27 vitiated by violation of the principles of natural justice."
8. A bare reading of the above judgment would go to show that the apex Court has explained the true characteristics and importance of a teacher, by referring to the noble sayings of the Father of the Nation Mahatma Gandhi; Dr. Sarbapalli Radha Krishnan, the Former President of India; Swami Vivekananda and other great personalities. The apex Court has also explained in paragraph-11 of the aforesaid judgment as to how in our mythology a teacher is bestowed with the position of "Guru". But, in this case, the petitioner, being a teacher, has bypassed the above principles and has shown prejudicial behaviour towards the students, who are future of the nation. Therefore, such a teacher should not have been shown any mercy and should have been imposed with harshest punishment so that no other teacher could dare to do such activities which will affect the image of the teacher as a class. Further, the conduct of the petitioner towards a class-II girl student, who has hardly seen the world and society, sustained injuries due to molestation by a teacher, to whom the Page 27 of 41 // 28 students like her kept in high esteem and her strong belief and utmost faith on him must have lost and she must have collapsed mentally, psychologically and physically and must have lost her confidence on the system itself and this will remain as a black spot in her entire life and she will not recoup from such trauma. Such ghastly and barbaric action of the petitioner should be deprecated and he should be dealt with in strong hands to save the future of the nation. Therefore, taking a serious note of the nature of allegation and keeping in mind the enquiry report, which has been furnished by a responsible committee constituted by the competent authority, and also the fact that the students of different age groups have come forward to depose against the petitioner about his behavior and conduct, this Court is of the considered view that the Commissioner-disciplinary authority, without conducting any regular enquiry under CCS (CC&A) Rules, has rightly imposed the penalty of termination from service, which has been confirmed by the appellate authority in appeal as well as by the Tribunal, which Page 28 of 41 // 29 does not call for any interference of this Court at this stage.
9. In Director, Navodaya Vidyalaya Samiti (supra), the apex Court held that the reason given by the Director for dispensing with the enquiry was not unconstitutional or illegal. Since the Director used the language of the Rules itself relying upon the judgment passed by the apex Court in the case of Avinash Nagra (supra), the view taken by the apex Court for dispensing with regular enquiry is well justified. The apex Court has taken into consideration and dealt with the same in paragraphs-7, 8 and 9 of the judgment, which read thus:-
"7. We are of the view that the High Court erred in reversing the decision of the Tribunal. The rule quoted earlier, explicitly deals with such a situation as obtains in the present case. The rule is not under challenge. All that is required for the court is to be satisfied that the preconditions to the exercise of power under the said rule are fulfilled. These preconditions are : (1) holding of a summary enquiry, (2) a finding in such summary enquiry that the charged employee was guilty of moral turpitude; (3) the satisfaction of the Director on the basis of such summary enquiry that charged officer was prima facie guilty; (4) the satisfaction of the Director that it was not expedient to hold an enquiry on account of Page 29 of 41 // 30 serious embarrassment to be caused to the student or his guardians or such other practical difficulties and finally; (5) the recoding of the reasons in writing in support of the aforesaid.
8. In this case, all the preconditions have been fulfilled. An enquiry Committee was duly constituted. It held an enquiry and came to the conclusion that the respondent was guilty of the offence with which he was charged, namely, writing love letters to the student in question. The Director has recorded the reasons for dispensing with regular enquiry, reasons which have been upheld as being valid in the decision in Avinash Nagra, wherein this Court has held: (SCC pp.537 & 542, paras 6 &12) "With a view to ensure safety and security to the girl students, to protect their modesty and prevent their unnecessary exposure at an enquiry in relation to the conduct of a teacher resulting in sexual harassment of the girl student, etc. involing misconduct or moral turpitude, resolution prescribing special summary procedure was proposed and published by notification dated 23.12.1993, after due approval of the Executives of the respondent Samiti. The Minister of Human Resources and Development, Government of India is its Chairman."
It is seen that the rules wisely devised have given the power to the Director, the highest authority in the management of the institution to take decision, based on the fact situation, whether a summary enquiry was necessary or he can dispense with the services of the appellant by giving pay in lieu of notice. Two safeguards have been provided, namely, he should record reasons for his decision not to Page 30 of 41 // 31 conduct an enquiry under the rules and also post with facts the information to Minister, Human Resources Department , Government of India in that behalf."
9. It is true that the Court in Avinash Nagra has made the following observations:
(SCC p. 543, para 12) "In our considered view, the Director has correctly taken the decision not to conduct any enquiry exposing the students and modesty of the girl and to terminate the services of the appellant by giving one month's salary and allowances in lieu of notice as he is a temporary employee under probation.
However, the Court goes on to say (SCC p.543, para 12) "In the circumstances, it is very hazardous to expose the young girls to tardy process of cross-examination."
10. In Rathin Pal (supra), the apex Court held as under:-
"It is unbelievable that the students of Class-V, aged about 11-12 years, would be involved in any conspiracy against the applicant. Respondent make an attempt to project himself as victim of some conspiracy but he could not produce any tangible evidence either before the Inquiry Committee or the Appellate Authority. Even before the Tribunal, he could not substantiate the charge that he was being framed up for extraneous reasons. The reasons assigned ny appellant no.1 cannot, by any stretch of imagination, be treated as Page 31 of 41 // 32 extraneous or irrelevant to the exercise of power under Article-81(B) of the Education Code."
11. In Kendirya Vidyalaya Sangathan v. Ananta Chandra Das (W.P.(C) No. 20352 of 2016 disposed of on 17.02.2017), this Court taking into consideration Article 311 (2) (b) of the Constitution of India, held as under:-
"The provision to Article 311(2)(b) is attracted when the authority is satisfied from the materials placed before him that it is not reasonably practicable to hold a departmental inquiry. The authority empowered to dismiss etc. must record his reason in writing for denying the opportunity under Clause 2 before making the order of dismissal etc. and the reasons recorded must ex facie show that it was not reasonably practicable to hold a disciplinary enquiry. To emphasize, the provision of Rule 14 of Rules, 1965 is parameteria to Article 311 of the Constitution of India while the provision of Article 80 and 81(b) of the Kendriya Vidyalaya Sangathana Education Code the parameteria to Art.311(2)(b) of the Constitution of India.
On the subject, we thought it proper to have a discussion regarding the propositions laid down by the Hon‟ble Apex Court and the relevant is the judgment pronounced by Hon‟ble Apex Court in the case of Union of India v. Tulsiram Patel, AIR 1985 SC 1416, wherein at paragraphs 130 and 133, their Lordships have been pleased to hold as follows :Page 32 of 41
// 33 "130. The condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that "it is not reasonably practicable to hold" the inquiry contemplated by clause (2) of Article 311. What is pertinent to note is that the words used are "not reasonably practicable" and not "impracticable". According to the Oxford English Dictionary "practicable" means "Capable of being put into practice, carried out in action, effected, accomplished, or done; feasible".
Webster's Third New International Dictionary defines the word "practicable" inter alia as meaning "possible to practice or perform: capable of being put into practice, done or accomplished: feasible". Further, the words used are not "not practicable" but "not reasonably practicable". Webster's Third New International Dictionary defines the word "reasonably" as "in a reasonable manner: to a fairly sufficient extent". Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry. x x x"
"133. The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a Constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty Page 33 of 41 // 34 following thereupon would both be void and unconstitutional."
The judgment rendered in the case of Jaswant Singh v. State of Punjab, (1991) 1 SCC 362 wherein their Lordships at paragraph 5 have been pleased to hold as follows:-
"The decision to dispense with the departmental enquiry cannot be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a court of law. it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer."
In the case of Avinash Nagra Vrs.
Navodaya Vidyalaya Samiti and Others, reported in (1997) 2 SCC 534 in the similar nature of allegation, the Hon‟ble Apex Court while dealing with the subject, has been pleased to hold that the decision taken by the Director not to conduct any enquiry exposing the student and modesty of the girls and to terminate the services of the appellant by giving one month‟s salary and allowance in lieu of notice as he is a temporary employee under probation, their Lordships have taken view that the conduct of the appellant is unbecoming of a teacher much less a loco parentis, and therefore, dispensing with regular enquiry under the rules and denial of cross-examination are legal and not vitiated by violation of principle of natural justice.
Hon‟ble Apex court in the case of Director, Navodaya Vidyalaya Samiti and Others Vrs. Babban Prasad Yadav and Another, reported in (2004) 13 SCC 568, after putting reliance upon the judgment rendered in the case of Avinash Nagra‟s case (supra) has been pleased to observe that in deviating from holding regular enquiry in a case of Page 34 of 41 // 35 sexual harassment against the girl student, no illegality can be said to be committed. In the case of Commissioner, Kendriya Vidyalaya Sangathan and Others Vrs. Rathin Pal (S.L.P.(C) No.4627 of 2008, decided on 16th August, 2010) their Lordships of the Hon‟ble Apex Court after taking into consideration the judgment rendered in the case of Avinash Nagra (supra) has been pleased to approve the decision taken by the competent authority by invoking the provision of Article 81(b) of the Kendriya Vidyalaya Sangathan Education Code dispensing with holding regular departmental enquiry before passing order of punishment in a case of sexual harassment towards the girl student.
We, in the light of these judgments of Hon‟ble Apex Court, have examined the factual aspects and on its perusal it is evident that a written complaint has been submitted by the father of the victim girl student of class-VII regarding sexual harassment by opposite party no.1, explanation was called for by the authority, i.e. Principal, Kendriya Vidyalaya, Charbatia, opposite party no.1 has given its explanation, the Principal has constituted a school-level preliminary enquiry committee, statement of victim girl student with others before preliminary committee have been recorded and the preliminary enquiry report has been submitted holding that the complaint made by the father of the victim girl is genuine.
We have gone through the preliminary enquiry report, perused the statements of the girl students including the victim girl and the lady teachers and found that the girl of such a minor age cannot tell lie regarding the fact which has been stated in Page 35 of 41 // 36 her statement recorded by the preliminary inquiry committee.
We have also gone through the memorandum of appeal filed by the opposite party no.1 and from its perusal it is evident that the fault has been admitted by opposite party no.1 where he has said that the occurrence might have committed by him once or twice, but it is only by chance and not intentional, but thing is that a teacher who is imparting study in a co- educational institution cannot be expected to deal with the girl student in such a manner and as such we are also of the view that even the delinquent employee, the opposite party no.1 has admitted his guilt. The statutory provision provides that the Commissioner is to act upon on the basis of the preliminary enquiry report, if he has to invoke the jurisdiction conferred to him under Article 81(b) of the Kendriya Vidyalaya Sangathana Education Code, we have found from the record that the preliminary enquiry report has been submitted before it, the statement of various girl students have been recorded including the lady teachers and it is not to be disbelieved that the girl student will tell lie for false implication of the teacher who is imparting teaching to the students without any rhyme and reason, that too, a girl aged about 11 to 12 years.
In the aforesaid judgment, as would be evident, this Court quashed the order passed by the Central Administrative Tribunal and allowed the writ petition filed by the Kendriya Vidyalaya Sangathan. Against the said judgment, Ananta Chandra Das preferred SLP (C) Page 36 of 41 // 37 No. 16882 of 2017, which was dismissed by the apex Court, vide order dated 24.07.2017.
12. In Secretary, Lucy Sequeira Trust (supra), the apex Court held that standard of proof and approach is different from criminal proceeding. Allegations are of such level and dimension that immediate action on the departmental front was required to be undertaken. Pendency of criminal trial has no bearing with issue before the inquiry committee. Two out of three members of the committee did not give final opinion under a wrong perception that it would amount to contempt of court. Management relying upon the conclusions drawn by the convenor of the committee passed an order of termination. Committee was duly constituted without any haste and passed a resolution for conducting an enquiry. Before the committee, 12 persons including five girl students were examined in connection with specific charges on objectionable behavior of the Asst. Teacher with adolescent girl students of the school. The approach adopted by the management was not only fair and transparent but also was in keeping with what was Page 37 of 41 // 38 expected of the management where allegations of sexual harassment of adolescent girls are in issue. By holding so, the apex Court upheld the order of termination and set aside the decision of the Tribunal as well as the High Court.
13. In view of such position, there is no iota of doubt that, on the basis of the allegations made against the petitioner, the action taken by the disciplinary authority, appellate authority as well as the Tribunal does not require interference of this Court. Apart from the same, if it is considered from other angle, the term moral turpitude is not defined anywhere. The same will have to be understood in the light of the circumstances of the case, the conditions of the society and the actual manner in which the alleged offence took place. Understood in that manner, a milk vendor delivering milk to the public in short measures, thereby cheating and deceiving them, certainly involves "moral turpitude".
14. Now question comes the taste which should ordinary be applied for judging whether a certain offence does not involve moral turpitude appear to be (1) Page 38 of 41 // 39 whether the act leading to a conviction was such as could shock moral conscience of society in general, (2) whether the motive which led to the act was a base one and (3) whether on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society. Therefore, "moral turpitude"
means, in general, shameful wickedness- so extreme a departure from ordinary standards of honest, good morals, justice, or ethics as to be shocking to the moral sense of the community. It has also been defined as an act of baseness, vileness, or depravity in the private and social duties which one person owes to another, or to society in general, contrary to the accepted and customary rule of right and duty between people."
15. In American Encyclopaedia of Law, it is stated that anything done contrary to justice, honesty, principle or good morals, an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen or society in general, contrary to Page 39 of 41 // 40 the accepted and customary rule of right and duty between man and man.
16. In view of the aforesaid analysis, it is made clear that everything done contrary to justice, honesty, modesty, or good morals is done contrary to turpitude, so that embezzlement involves moral turpitude. In view of the clear elaboration and the meaning attached to the words "moral turpitude", applying the same to the present context, it is apparent that the conduct of the petitioner is contrary to justice, honesty, modesty, or good morals is done contrary to turpitude, which involves moral turpitude.
17. It is shocking to note that if a teacher, to whom the society respects for his high integrity, morality and service, conducts himself in a manner prejudicial to the interest of justice, honesty, modesty or good morals, as has been done in the present case, it will definitely come within the meaning of "moral turpitude". Once the conduct of the petitioner comes within the purview of "moral turpitude", he has no right to continue in the post, which he is holding and, as such, he has to be Page 40 of 41 // 41 terminated from service, which has been done by the disciplinary authority, confirmed by the appellate authority and re-affirmed by the Tribunal.
18. In view of the aforesaid facts and law, as discussed above, this Court does not find any error apparent on the face of the orders impugned passed by the disciplinary authority, appellate authority and the Tribunal, so as to warrant interference of this Court.
19. In the result, therefore, the writ petition merits no consideration and the same is liable to be dismissed and is hereby dismissed. But, however, in the facts and circumstances of the case, there shall be no order as to costs.
(DR. B.R. SARANGI) JUDGE G. SATAPATHY, J. I agree.
(G. SATAPATHY) Signature Not Verified JUDGE Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Orissa High Court, Cuttack Reason: Authentication Location: HIGH COURT OF ORISSAThe 3 May, 2024, Ashok rd Date: 09-May-2024 16:46:23 Page 41 of 41