Central Administrative Tribunal - Delhi
Udai Singh Yadav vs Kendriya Vidyalaya Sangathan on 5 May, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No.1907/2010 New Delhi, this the 5th day of May, 2011 HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE DR. A.K. MISHRA, MEMBER (A) Udai Singh Yadav S/o Late Shri Rampat Singh Yadav Aged about 56 years R/o H.No.152, Ganga Sagar (B), Vaishali Nagar, Jaipur, Rajasthan-302021. Applicant By Advocate: Shri A.K. Behera with Shri Yogesh Sharma and Mrs. Jasmine Ahmed. Versus Kendriya Vidyalaya Sangathan Through: 1. The Commissioner Kendriya Vidyalaya Sangathan, 18, Institutional Area, Saheed Jeet Singh Marg, New Delhi. 2. The Vice Chairman (Appellate Authority) Kendriya Vidyalaya Sangathan, 18, Institutional Area, Saheed Jeet Singh Marg, New Delhi. ..Respondents By Advocate: Shri S. Rajappa. ORDER
By Honble Mrs. Meera Chhibber, Member (J) Applicant, who was working as PGT (Physics) with respondents has challenged order dated 24.10.2008 (page 22) whereby he has been terminated and order dated 4.2.2009 (page 36) whereby his appeal has been rejected.
2. It is submitted by the applicant that he had been working with the respondents as a teacher for the last 27 years. He had joined in Gurgaon School after he was transferred from Jaipur in July, 20007. He was made the Class teacher of XII-C and was given all the sections of Class XII for taking Physics subject which was not liked by Shri S.P.S. Yadav, who was earlier teaching Physics to Class XII as he was asked to teach lower classes e.g. 8th and 9th so he held a grudge against the applicant.
3. Applicant always had 100% result of his class and took extra pains to coach the weak students so that they may catch up. 3 students of Class XII were identified as poor learners in Chemistry, Physics, Biology and Maths. One student viz. Kumari Rekha of Class XII-C was issued the Yellow Card also, therefore he was giving coaching to her as well. Everything was going on normal but to his utter surprise, he was suspended vide order dated 6.2.2008 in contemplation of an enquiry. Being aggrieved, he gave representation dated 25.2.2008 stating therein clearly that the complaint has been given by Ms. Rekha as a result of conspiracy by those teachers whom he had displaced or against whom he had reported to the Principal. No reply was given to him. Ultimately he has been terminated by dispensing with the regular enquiry thus he has been denied the right to defend.
4. It is submitted by the applicant that on 24.3.2008 applicant was called telephonically and asked to give the statement before the so called summary enquiry but neither copy of the complaint was given to him nor any witness was examined in his presence nor he was allowed to cross examine any of the witnesses. Thus the summary enquiry was a mere sham which is not sustainable in law because even in summary enquiry the basic principles of natural justice to defend cannot be denied to an individual. On the basis of summary enquiry report show cause notice dated 4.8.2008 was issued to the applicant along with copy of complaint, statement of witnesses and the report calling upon him to explain why he should not be terminated. Applicant gave a detailed reply but without considering his contentions, order dated 24.10.2008 was passed terminating his services in terms of Article 81 (b) of the Education Code.
5. Being aggrieved, he filed an appeal that too was rejected on 4.2.2009 (page 36). He has thus filed the present OA.
6. Respondents have opposed the OA. They have stated one Kum. Rekha, a student of Class XII-C, KV, AFS, Gurgaon, lodged complaints dated 22.01.2008 and 04.02.2008 with the Principal of the Vidyalaya against Shri U.S. Yadav, PGT (Phy) alleging that Shri Yadav wanted to have physical relations with her. Shri Ram Singh, the father of Kum. Rekha also lodged a complaint on 04.02.2008 with the Principal on the misbehaviour of Shri U.S. Yadav against his daughter. The said complaints were forwarded to the Asstt. Commissioner, Delhi Region by the Principal, KV, AFS, Gurgaon vide letter dated 05.02.2008. The Asstt. Commissioner, taking a serious view on the allegations of sexual harassment of a girl student, placed Shri U.S. Yadav under suspension vide order dated 06.02.2008 and ordered for a summary inquiry through Complaint Redressal Committee vide order dated 14.03.2008. The Complaint Redressal Committee conducted the summary inquiry on 24.03.2008 and it submitted its report to the Asstt. Commissioner, Delhi on 13.05.2008 with the following findings:-
After hearing various versions of concerned teachers and staff, the Committee unanimously came to the conclusion that Shri U.S. Yadav, PGT (Phy.) sexually harassed Kum. Rekha during the academic term in KV, AFS, Gurgaon continuously. Keeping in view of the above behaviour of Shri U.S. Yadav, PGT (Phy.), the conduct was found entirely unbecoming of a teacher who has been entrusted with the task of moulding young psyche. When Kum. Rekhas predicament had come to the notice of the Principal, Vidyalaya level inquiry was conducted verbally and KVS, RO, Delhi was apprised of the matter for further action. It has been noticed that the student Kum. Rekha continued to remain scared and in mental trauma which resulted in deterioration of her academic performance which is visible in her pre-board examination due to unholy/unbecoming conduct of Shri U.S. Yadav.
Thereafter, a show-cause notice under Article 81(B) of the Education Code was issued to Shri U.S. Yadav by the Competent Authority viz. the Commissioner vide Memorandum dated 4.8.2008 informing him of the action being taken against him on the alleged immoral act exhibited by him against a girl student and he was called upon to make representation in his defense. Shri U.S. Yadav submitted his representation in response to the show cause notice on 18.8.2008. The competent authority, after perusal of all the facts and circumstances of the case and after affording sufficient opportunity to the applicant, found him guilty of moral turpitude as he was found misbehaving with a girl student in order to derive sexual satisfaction. The competent authority while so holding the applicant guilty, was also of the view that it was not expedient to hold a regular enquiry under the CCS (CCA) Rules, 1965 as it would cause embarrassment to the girl student and her parents/guardians. That apart, holding of a regular enquiry was not expedient because of the tender age of the girl student as her safety and security had to be ensured by preventing her from the exposure to the tardy process of cross examination in the enquiry in relation to the conduct of the teacher involving moral turpitude and in this view of matter, the Commissioner passed an order dispensing with holding of a regular inquiry in accordance with the CCS (CCA) Rules, 1965 and he passed the impugned order of terminating the applicant in terms of the provisions of Article 81 (B) of the Education Code for KVs. It is further submitted that the competent authority had also followed the judgement of Honble Supreme Court of India dated 2-5-2003 in the case of the Director, Navodaya Vidyalaya Samiti & Ors. Vs. Babban Prasad Yadav reported in 2004 (2) SCALE 400 wherein the following preconditions are laid down which are required to be satisfied before a delinquent official is terminated by the competent authority in exercise of such powers under the relevant rules:-
(i) Holding of summary inquiry.
(ii) Finding in such summary inquiry that the charged employee was guilty of moral turpitude.
(iii) The satisfaction of the Disciplinary Authority on the basis of such summary inquiry that the Charged Officer was prima facie guilty.
(iv) Satisfaction of the Disciplinary Authority that it was not expedient to hold an inquiry on account of serious embarrassment to be caused to the student or his guardians or such other practical difficulties.
(v) The recording of the reasons in writing in support of the aforesaid. As Shri U.S.Yadav, PGT (Phy), KV, Gurgaon was found guilty of moral turpitude, the Competent Authority terminated him from the service of KVS under the provisions of Article 81(B) of the Education Code for KVs vide order dated 24-10-2008. Thereafter, Shri U.S.Yadav preferred an appeal dated 12-11-2008 before the Appellate Authority against the order of the Disciplinary Authority dated 24-10-2008 which was duly considered by the Appellate Authority with due application of mind and rejected the same vide order dated 4-2-2009.
7. They have stated that the applicant was provided with copies of complaint, summary enquiry report and statements along with the show cause notice giving him full opportunity to denend himself, therefore, it cannot be stated that principles of natural justice have been violated.
8. As far as allegation of bias against Ms. Neelam Katara is concerned, they have stated the summary enquiry committee consisted of 4 members. In any case no instances have been quoted by the applicant to show why she should be biased against the whole Yadav community simply because her son was killed by one Mr. D.P. Yadav. The allegations are baseless and need to be ignored. Since it was a serious matter involving immoral sexual behavior of the applicant towards the girl student which were proved in the enquiry, therefore, he has rightly been terminated from service. The OA may be dismissed.
9. We have heard both the counsel, perused the pleadings and also gone through the departmental record.
10. Counsel for the applicant strenuously argued that the result of applicant was always 100% which is evident from the certificates annexed with the OA. However, the charge against the applicant was not that he was not producing good results but of causing sexual harassment to a girl student, therefore, his result has nothing to do with this charge. This argument is totally misconceived and irrelevant.
11. The main contention of learned counsel for the applicant was that even summary enquiry must fulfill the basic requirement of complying with the principles of natural justice. In the instant case when applicant was called to give his statement before the Complaints Committee, he was not even aware as to what the complaint against him was and who were the witnesses and what had they stated because they were neither examined in his presence nor he was given chance to cross examine them, thus right to defend was denied to him.
12. We had called the original record and perusal of same shows before Complaints Committee was constituted, a verbal enquiry was conducted by the Principal of the School where the complainant, her father and the applicant were all questioned. It, therefore, cannot be accepted that the applicant was not aware about the facts of the complaint. In any case even if it is accepted for the sake of argument that he was not aware about the complaint, he could always have asked the Committee to give him copy of the complaint, statements of the witnesses and requested them to allow him to cross examine the witnesses.
13. Admittedly, no such request was made by him which itself shows that he was fully aware of all the facts and the allegations. Even otherwise whether violation of principles of natural justice would vitiate the order or not was extensively dealt with by the Honble Supreme Court in the case of State Bank of Patiala & Ors Vs S.K. Sharma reported in 1996 (3) SCC 364 at 366 wherein it was held as follows:-
violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under no notice, no opportunity and no hearing categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. It was further held whenever there is contention of violation of procedural rule, the complainant should be examined on the touch stone of prejudice. The test is: all things taken together whether the delinquent officer/employee had or did not have a fair hearing. It was further held justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counter-productive exercise, therefore, these principles cannot be put in a straight-jacket and their applicability would depend on the facts and circumstances of each case.
14. In the above judgment, the theory of prejudice was propounded, therefore, now the Courts have to see whether any prejudice has been caused to the applicant on account of violation of principles of natural justice. In the instant case we have already noted above that applicant was aware about the allegations and was also aware about the stand taken by other witnesses which is evident from his own representation given against his suspension on 25/2/2008 and 2.6.2008. His representation dated 25/2/2008 for ready reference reads as under:-
(vi) Shri Vijay Kumar misguided Km. Rekha and sent her to library madam Mrs. Asha Saxena where Mrs. Snehlata Yadav, TGT (English) also misguided Rekha and escorted her to the principal room. On the misguiding of these teachers, Rekha told regarding my behaviour to principal. On 22.1.2008 Rekha gave in writing a compliant and principal called me and told about practical complaint. I also wrote to Principal when he insisted me to write.
(vii) After 10 days when these teachers came to know that no action was taken by Principal then they approached Mrs. Prem Kumar Dahiya and Shri S.P.S. Jayas PGT (Chemistry) and told him that one girl misbehaved by Shri U.S. Yadav then Mrs. Dahiya misguided Rekha and compelled her to write again against Mr. U.S. Yadav and while Shri U.S. Yadav again misbehaved with me and also detained some out side children.
(viii) Mrs. Prem Dahiya took Km. Rekha to principal office and called Rekhas father Shri Ram Singh. All things discussed in principal chamber and her father left.
Now Dahiya madam collected some ladies teachers and compelled them to take action against Shri U.S. Yadav and also called Rekhas father again and then compelled him to write against Shri U.S. Yadav. In this way these five teachers made a conspiracy against me and you suspended me.
15. Similarly in representation dated 2.6.2008 he has stated as follows:-
16. From above it is clear that applicant was fully aware of the allegations made against him by Ms. Rekha and the witnesses, therefore, no prejudice can be said to have been caused to him. In any case after the Complaint Committee gave its report, copy of report along with complaint and statements of witnesses were given to him giving him an opportunity to defend himself, therefore, opportunity to defend was given to him.
17. It is relevant to note that applicant did not produce any defence witness. On the contrary he gave in writing to the Principal on 22.1.2008 as follows:-
It shows that the applicant had promised he would not misbehave with Rekha of Class XIIth-C or any other student in future meaning thereby he indirectly admitted the incident otherwise he would not have given such assurance. It is further relevant to note that another letter was given by the student on the same day, which reads as under:-
18. Perusal of above letter shows that even on 22.1.2008 though the student had pardoned the teacher but she reiterated that her complaint was correct. Even while pardoning the teacher, the student was worried that her marks should not be deducted which itself shows the student was under pressure and the incident had indeed taken place.
19. The question in these circumstances for our consideration is, whether the teacher can be absolve of his immoral behaviour with a young girl student in the school and let off simply because he has been pardoned by the student and her father.
20. We cannot lose sight of the fact that applicant was teaching in a school where girl students are taught. If a male teacher has this kind of tendency, it is not in the larger interest of the Institution to keep such a teacher in the school, as it not only vitiates the atmosphere of the school but girl students would live in fear with the idea that he can repeat the same thing with other girl students also. School is a temple of education where relationship of students and teachers should be such that students have full faith in the teacher and take him or her as their mentor. When the faith itself gets shattered, a breach comes in this pious relationship, which is definitely not in the interest of the girl students. Their young mind would also be polluted and chances are they may get misdiverted into sex, therefore, such cases have to be dealt with sternly.
21. In these circumstances, even if the entire class had requested the Principal that the said teacher should be retained, the competent authority has to take the decision in the larger interest of the institution. The prime concern being whether such a teacher should be retained at all in the school or his services should be dispensed with.
22. At this juncture it would be relevant to note the findings recorded by the Complaints Committee which reads as follows:-
After the conclusion of the investigation, the Committee has come to the following conclusion:-
After hearing various versions of concerned teachers and staff the committee unanimously came to the conclusion that Mr. U.S. Yadav, PGT (Phy.) sexually harassed Kum. Rekha during the academic term in Kendriya Vidyalaya AFS Gurgaon continuously. Keeping in view the above behaviour of Sh. U.S. Yadav, PGT (Phy), the conduct was found entirely unbecoming of a teacher who has been entrusted with the task of moulding young psyche.
When Km. Rekhas predicament had come to the notice of the Principal vidyalaya level enquiry have been conducted verbally and KVS RO Delhi have been apprised of the matter for further action.
It has been noticed that the student Km. Rekha continued to remain scared and in mental trauma which resulted in deteriation of her academic performance which is visible in her pre-board exam due to unholy/unbecoming conduct of Sh. U.S. Yadav.
The facts which are stated above are based on the statements of the student (Complainant) her father and due investigation with staff and concerned people involved in the issue.
23. The Complaint Committee consisted of 4 persons Smt. Neelam Katara, Education Officer, Shri Dheer Singh, Principal, Smt. Alka Zadoo also Principal of another school and Dr. A. Padmavati (NGO), therefore, this finding was recorded by outsiders who were independent.
24. Learned counsel for the applicant next submitted that Smt. Neelam Katara was biased against the Yadavs because her son was killed by a Yadav. This contention has been recorded only to be rejected because we find no merit in it. There is no justification to say that Smt. Neelam Katara would be biased against the whole Yadav community. There is no foundation laid for making such bald allegation against Smt. Neelam Katara. It is also relevant to note that she has not even been impleaded as a party respondent by name. The basic principle of bias is, if allegations are made against any person, he or she should be impleaded as a party by name so that she/he may respond to it. In the absence of impleadment, the contention cannot even be looked into. Even otherwise, it has been held by Honble Supreme Court it is very easy to allege mala fides but difficult to prove the same. In E.P. Royappa vs. State of Tamil Nadu reported in AIR 1974 SC 555, Honble Supreme Court has held as under:-
The burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility.
25. Even otherwise apart from Smt. Neelam Katara, there were three other independent members in the Complaints Committee. Principals of 2 other schools and one person from NGO. No malice has been alleged against others. We, therefore, hold that applicant has not been able to satisfy the onus of proving the allegation of bias, the contention of bias is, therefore, rejected.
26. Learned counsel for the applicant next contended that competent authority could have taken the decision to dispense with the enquiry only after holding a meaningful summary enquiry. We have already dealt with this aspect in the beginning and find that after the Complaints Committee had given its report, show cause notice was issued to the applicant by the Commissioner which reads as follows:-
After going through the said report I am of the considered opinion that Shri U.S. Yadav, PGT (Phy.), has indulged in immoral behaviour towards the female student of class XII-C of the Vidyalaya and is prima facie guilty of moral turpitude. Therefore, I have decided to proceed against Shri U.S. Yadav, PGT (Physics), under the provision of Article 81(B) of the Education Code. I am of the opinion that it is not expedient to hold a regular inquiry under the CCS (CCA) Rules, 1965 as it would cause serious embarrassment to the girl student and could also cause a trauma for her due to her tender age. Accordingly, holding a regular inquiry for imposing penalty in accordance with the CCS (CCA) Rules, 1965 as applicable to employees of KVS, is dispensed with.
The Honble Supreme Court in its order dated 30.9.96 in Civil Appeal No. 14525 of 1996 - Avinash Nagra Vs Navodaya Vidyalaya Samiti & Others (1997 - Vol.II - Supreme Court Cases - P.534-543) has laid down that the procedure to be adopted in such cases would require that a show cause notice containing the charge and the facts in support of the charge together with the statements recorded in the summary inquiry along with a copy of the report of the summary inquiry would be given to the charged person and such charged person would be given an opportunity to submit his explanation, without having the right to cross-examine witnesses. His explanation will, as per the courts ruling, be considered along with all other records before a final order under Article 81(B) of the Education Code is passed.
Now, accordingly, Shri U.S. Yadav, PGT (Phy) is hereby given the following documents along with this show cause notice:-
Charges.
Facts in support of the charges Complaints of the girl and her father.
Copies of statements recorded in the summary inquiry.
Copy of report of the summary inquiry.
Shri U.S. Yadav, PGT (Phy) (under suspension) is hereby given an opportunity to submit a representation to the show cause as to why, his services should not be terminated under the provision of Article 81 (B) of the Education Code for Kendriya Vidyalayas. Such representation, if any, shall be submitted to the undersigned not later than 15 (fifteen) days from the date of receipt of this notice. If Shri U.S. Yadav fails to submit his representation within 15 days of the receipt of the notice, it will be preseumed that he has nothing to say and orders will be passed against him ex-parte under the provisions of Article 81 (B) of the Education Code for Kendriya Vidyalayas.
27. It was after considering the representation that the competent authority passed the order dated 24.10.2008 terminating the services of the applicant. Perusal of the order shows it is a detailed order wherein all the contentions of the applicant have been dealt with by observing as follows:
i) It is a case of moral turpitude and to deal with such case special provision of Article 81(B) of the Education Code has been laid down with the approval of Board of Governor. As per provision, the competent authority can dispense with the regular inquiry.
The Complaint Redressal Committee has conducted the summary inquiry, recorded the statement of victim girl, her father, statement of teachers and his own statement. He was aware of the facts of the case. The girl and other witnesses have confirmed his behaviour.
He has exhibited serious immoral behaviour to a girl of class XI seeking physical relation with her and during inquiry, the allegation stands substantiated. Therefore, his service achievement in the background of this misconduct has no bearing at all.
The Inquiry Committee has conducted a summary inquiry objectively and after taking statement of victim girl who had confirmed the allegations, her father and members of staff to which Km. Rekha has narrated his immoral acts. He himself in his statement made before the Principal stated that he would never misbehave to her and any other girl students in future. The fact that she used to come for coaching in group has no bearing with the fact that after his persistent and repeated proposal of having physical relation with her she was compelled to confide his heinous acts to the teacher who is discipline incharge and some other teachers who helped her dare to lodge the complaint with Principal. The Inquiry Committee based on consistent statement of victim girl, her father and other teachers substantiated and held him prima facie guilty of the charge. Hence the averment of Shri Yadav is not correct in the back ground of the case.
The Inquiry Committee has conducted the inquiry in a fair manner, and recorded the statements of concerned parties. As per finding in the report, the Inquiry Committee substantiated the charge against him.
(vi) Based on the complaint lodged by Km. Rekha of Class XI, alleging that he has been persistently proposing physical relation with her, summary inquiry was conducted by the Complaint Redressal Committee as ordered by the Assistant Commissioner, Delhi Region. As observed from the report, the Inquiry Committee has weighed all evidence and taken on record and found that his conduct was entirely unbecoming of a teacher who has been entrusted with the task of moulding young psyche. When Km. Rekhas predicament had come to the notice of the Principal Vidyalaya level enquiry was conducted verbally and KVS. R.O. Delhi, was apprised of the matter for further action. It is further observed that the student Km. Rekha continued to remain scared and in mental trauma which resulted in deterioration of her academic performance which is visible in her pre-board exam due to unholy/unbecoming conduct of Sh. U.S. Yadav. From the finding of Inquiry, it is safely concluded that he has committed misconduct and his averment which is extraneous in nature has no bearing with the case.
vii) Shri Vijay Kuma Sharma in his statement, has described his behaviour with the girls and particularly to the victim girl. The fact remains that Shri Yadav, himself in his statement dated 22.1.2008 made an apologetic statement that he would not commit any wrong behaviour with Km. Rekha and would not put any pressure and also would not misbehave with any girl. The Inquiry Committee has taken all evidence of the witnesses on record and substantiated the charge. His past service has no bearing with the case in the background of the case where his misconduct has been substantiated in the summary inquiry.
28. Being aggrieved, applicant had filed an appeal that too has been rejected on 04.02.2008 by a reasoned order which shows full application of mind.
29. Since authorities have imposed the punishment on the ground that applicant had indulged in immoral behaviour which were duly proved before the Complaints Committee, therefore, no case is made out for interference.
30. At this juncture it would be relevant to quote Rule 14 of CCS (CCA) Rules, 1965 which reads as under:-
14. Procedure for imposing major penalties (1) XXX XXX XXX (2) XXX XXX XXX Provided that where there is a complaint of sexual harassment within the meaning of rule 3 C of the Central Civil Services (Conduct) Rules, 1964, the complaints Committee established in each ministry or Department or Office for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the complaints committee for holding the inquiry into the complaints of sexual harassments, the inquiry as far as practicable in accordance with the procedure laid down in these rules.
In the instant case there is specific rule dealing with these kind of situations viz. Article 81 (b) which for ready reference is quoted below.
"Article 81 (b) - Termination of services of an Employee Found Guilty of Immoral Behaviour towards Students -
Wherever the Commissioner is satisfied after such a summary enquiry as he deems proper and practicable in the circumstances of the case that any member of the Kendriya Vidyalaya is prima facie guilty of moral turpitude involving sexual offence or exhibition of immoral sexual behaviour towards any student, he can terminate the services of that employee by giving him one month's or 3 month's pay and allowances according as the guilty employee is temporary or permanent in the service of the Sangathan. In such cases procedure prescribed for holding enquiry for imposing major penalty in accordance with CCS (CCA) Rules, 1965 as applicable to the employees of the Kendriya Vidyalaya Sangathan, shall be dispensed with, provided that the Commissioner 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 Commissioner 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 Sangathan informed of the circumstances leading to such termination of service."
This provision has been subject matter of cases before the Honble Supreme Court and its validity has been upheld.
31. Similarly earlier in Avinash Nagra Vs. Navodaya Vidyalaya Samiti and Others reported in 1997 (2) SCC 534 it was held by the Honble Supreme Court that it is very hazardous to expose the young girl to tardy process of cross examination 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. involving 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 in 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 conduct an enquiry under the rules and also post with facts the information with Minister Human Resources department Government of India in that behalf. 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 months 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 to tardy process of cross-examination.
32. In Director, Navodaya Vidyalaya Samiti & Others Vs. Babban Prasad Yadav reported in 2002 (13) SCC 568 it has been held as under:-
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: (7) 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 the charged officer was prima facie guilty; (4) the satisfaction of the Director that it was not expedient to hold an enquiry on account of serious embarrassment to be caused to the student or his guardians or such other practical difficulties and finally; (5) the recording of the reasons in writing in support of the aforesaid.
33. In a recent judgment given by the Honble High Court of Delhi in the case of Jwala Singh vs. Union of India & Ors. reported in 120(2205) DLT 382, it was observed as follows:-
8. It is true that no regular enquiry was held, but it does not mean that the petitioner was not heard. He was given ample opportunity to present his defense. He was heard. What needs to be remembered and kept in view is that here was matter which involved the honour, self-respect and dignity of a young school girl. Her modesty had already been outraged. It must have been a traumatic experience. A regular enquiry would have further shattered her. We all know that in such cases, a victim is purposely, deliberately with design insinuated, insulted and humiliated. That is why, in matters like this, a regular enquiry is best avoided. The Supreme Court, with respect, rightly held in Avinash Nagra Vs. NVS reported JT 1996 (10) SC 461 that:-
Education to the girl children is nations 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 thus 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.
34. In view of above it is now settled law that in cases of sexual harassment it is not necessary to hold a regular enquiry. In the judicial review of such cases, we have only to see whether the preconditions as laid down in Babban Prasad Yadavs case have been complied with or not.
35. In the instant case we find all the conditions as laid down in Babban Prasads case were complied with inasmuch as summary trial was held. It was found in the summary trial that applicant was guilty of moral turpitude. Competent authority was satisfied that the applicant was guilty and it was not expedient to hold the enquiry. He has passed a well reasoned order. Since this is a case where applicant had indulged in immoral behaviour with a girl student, we find no good ground to interfere in the case. O.A. is accordingly dismissed. No costs.
(DR. A.K. MISHRA) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
Rakesh