Central Administrative Tribunal - Ahmedabad
Utsav Babulal Makwana vs Kendriya Vidyalaya Sanghthan on 21 August, 2023
::1 :: OA No 15/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BECH
Original Application No. 15 of 2018
With
M.A. No.14 of 2018
Dated the 21st day of August, 2023
Reserved on: 17.07.2023
Pronounced on: 21. 08.2023
CORAM:
HON'BLE SHRI JUSTICE RAMESHWAR VYAS, MEMBER (J)
HON'BLE DR. A. K. DUBEY, MEMBER (A)
Utsav Babulal Makwana,
Aged:31 years (DoB being 17.11.1986)
Son of Shri Babulal Makwana,
Presently residing at No.7, Bijal Park society,
Opp: Mahavir School,
Dani Limda,
Ahmedabad 380 028.
Gujarat. ... Applicant
(By Advocate Shri M S Rao)
V/s.
1. Kendriya Vidyalaya Sangathan,
(To be represented through its Commissioner, KVS,
18, Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi 110 016.
2. The Special Secretary Cum Vice Chairman (KVS),
(The Designated Appellate Authority),
Kendriya Vidyalaya Sangathan,
18, Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi 110 016.
3. Mrs. Narayani Singh,
Headmistress,
Kendriya Vidyalaya,
Bhilai Marshalling Yard (B.M.Y.),
Charoda Bhilai,
Bhilai 490 025
Dist: Durg,
Chattisgarh.
4. Mr.M.Kerkketta,
::2 :: OA No 15/2018
Incharge Principal,
Kendriya Vidyalaya,
Bacheli,
BIOP, Deposit 5,
Dist: Dantewada
Chattisgarh 493 553.
5. The Deputy Commissioner,
Kendriya Vidyalaya Sangathan (KVS),
Raipur Regional Office,
(Kendriya Vidyalaya No.2, Raipur Campus)
Sec-IV, Dindayal Upadhyay Nagar,
Raipur 492 010,
Chattisgarh. Respondents
(By Advocate Mr.Shashikant Gade)
ORDER
Per:Hon'ble Shri Justice Rameshwar Vyas, Member(J)
1. Aggrieved with the order dated 30.10.2015/02.11.2015 (Annexure- A/3) whereby applicant's services were terminated under the provisions of Article 81(B) of Education Code of Kendriya Vidyalaya Sangathan, the applicant has filed the present OA.
2. Brief facts of the case are as under:-
2.1. The applicant joined the services of Kendriya Vidyalaya Sangathan (hereinafter referred to as "KVS") as Primary Teacher in the year 2009. He is a permanent servant of KVS as his services were confirmed w.e.f. 22.01.2011. In the year 2013, the applicant came to be transferred and posted as PRT at KVS Bacheli, District Dantewada, in the State of Chattisgarh and in consequences thereof, he had joined at Bacheli KVS on 01.08.2013. The respondent No.3 Mrs.Narayani Singh was then serving as Head Mistress for primary section and accordingly, the applicant was serving under her control and supervision.
2.2 On 13.02.2014, a written complaint was filed before the Principal, KVS wherein allegations were made against the applicant for molestation of a girl student studying in class V A of KVS Bacheli during 7th to 9th period in the activity room. On 15.02.2014 the Principal in-charge KV Bacheli vide ::3 :: OA No 15/2018 letter (Annexure-A/9), requested the Chairman Vidyalaya Management Committee (VMC) to constitute the Enquiry Committee with a view to prepare a Fact Finding Report on the complaint and the same was constituted comprising administrator Mrs.Narayani Singh and two lady teachers of the School as also one lady from the VMC as members to conduct the inquiry. During the inquiry, statements of the victim girl and her parents were recorded on the same date whereas the statement of the classmates of the victim and primary teachers of the school as also the statement of the applicant against whom the allegation was made were recorded on 17.02.14 in the question and answer form .
2.3 On 15.02.2014 a Memorandum (Annexure-A/10) was issued against the applicant calling upon him to submit his explanation before 3.30 pm on 17.02.2014. After completing the inquiry the committee submitted its report to Principal on 17.02.2014 (Annexure-A/12). The applicant was suspended vide order dated 17.02.2014 (Annexure-A/11) keeping his Head Quarter at Koraput.
2.4 Against the memorandum dated 15.02.2014 (Annexure-A/10) the applicant made his representation to the Principal KVS on 19.01.2014 (Annexure-A/13). Thereafter, Deputy Commissioner, KVS Regional Office ordered for Summary Inquiry through Complaint Redressal Committee (CRC) constituted at the regional office level to look into the conduct of the applicant. The committee submitted its report (Annexure-A/18) with the conclusion that allegations made against the applicant are established beyond doubt.
2.5 The Commissioner, KVS after going through the Inquiry Report was of the opinion that it is not expedient to hold a regular inquiry under CCS (CCA) Rules, 1965. Accordingly, after dispensing with the regular inquiry, it was decided to issue show cause notice to the charged official along with the statements recorded during the inquiry with a view to give him opportunity to submit his explanation without having the right to cross examine the witnesses. Accordingly, 15 days' time was granted to the applicant to submit his representation against the inquiry report. In this ::4 :: OA No 15/2018 regard, Memorandum dated 25.09.2014 (Annexure-A/2) was issued to the applicant. Receiving the above Memorandum on 01.10.2014, the applicant requested for grant of one month time for submission of his reply vide communication dated 18.10.2014 (Annexure-A/20). Thereafter, he made representation dated 05.11.2014 (Annexure-A/21). After that vide order dated 30.10.2015/02.11.2015 (Annexure-A/3) the commissioner KVS in exercise of the powers conferred under article 81(B) of the Education Code for KVS terminated the service of the applicant with immediate effect. He was also informed of his right to prefer an appeal against the order before Vice Chairman, KVS within 45 days of the receipt of the order. The applicant preferred an appeal on 18.12.2015 under provisions of Article 81(C) of Education Code for KV and the same was rejected vide order dated 24.07.2017 (Annexure-A/4). Aggrieved with the order of Commissioner terminating his service and the order of the Appellate Authority rejecting the appeal, the present OA has been filed, with prayer to quash and set aside the above orders and issue directions against the respondent to reinstate the applicant in service with all consequential benefits.
2.6 The grounds raised by the applicant in the OA may be summarized as under:
(i) The allegations levelled against the applicant by the girl student as also her father are totally false, baseless and contrary to the truth. The same has been levelled with a view to facilitate the respondent No.3 Smt.Narayani Singh to fix the applicant for his refusal to oblige her. She expected certain immoral and unethical acts from the applicant herein. Smt. Narayani Singh is the wife of Shri N.B.Singh, the then General Manager, National Mineral Development Corporation (NMDC) Bacheli and Ex-officio Chairman of VMC, K.V.Bacheli.
(ii) The entire exercise resorted to by the respondent authorities is actuated by mala fide motive and intention on the part of respondent Nos.3 & 4 and that the subsequent action and decision on the part of the respondent No.1, 2 & 5 suffers from the vice of total non-application of mind on their part.::5 :: OA No 15/2018
The fact finding committee has taken answers from the girl and her parents on 15.02.2014 prior to receipt of the approval from the Chairman of Vidyalaya Samithy for constitution of the committee
(iii) Article 81(B) of Education Code confers the power only on the Commissioner, KVS and none else. In the present case, the Deputy Commissioner without any authority of law ordered for the conduct of summary inquiry under Article 81B of KVS Education Code which is not proper. It is not open either to the Commissioner, KVS to delegate the said power to order a summary inquiry or to the Deputy Commissioner of a region to usurp the said power of the Commissioner to order the summary inquiry. The act of the Deputy Commissioner in ordering summary inquiry is ex facie without any authority of law and thus deserves to be quashed and set aside. The applicant was not provided the copies of documents which were then in the possession of the Inquiry Committee with the result that the applicant was not at all having any clue whatsoever to the nature and contents of the so called complaints which the KVS claims to have received from the girl student and her father.
(iv) Merely reproducing verbatim what is contained in the provisions of Articles 81(B) of Education Code cannot be stated to be a reason for forming an opinion on the part of the Commissioner KVS that it is not expedient to hold a regular inquiry under CCS (CCA) Rules, 1965. The Commissioner has not assigned any other reason whatsoever to dispense with holding of regular inquiry except reproducing the provisions contained in Article 81(B) of the Education Code.
(v) The reliance placed on the ruling by the Commissioner KVS cannot be pressed into service to the present case of the applicant.
(vi) The procedure resorted to by the authority was a summary procedure. Absence of any opportunity to cross examine the father of the girl student and also the aforesaid Smt. Narayani Singh have caused serious prejudice to the applicant to prove his case. While placing reliance on the statement of other girl students for the purpose of imposing the impugned penalty, the Commissioner, KVS did not deal with any of the contentions ::6 :: OA No 15/2018 and submissions which the applicant had submitted in his representation in the show cause notice. The observation recorded in para 10 of the order of penalty are totally perverse, arbitrary, whimsical, discriminatory and without any application of mind on the part of the said authority. The Appellate Authority has not dealt with any of the contentions, pleadings, submissions and allegations levelled by the applicant in his appeal. The appellate authority is under an obligation to record the reasons in support of its decision. The Appellate Authority did not care to take decision on the applicant's appeal for 10 months.
3. The applicant also challenged the quantum of punishment. In the prayer, the applicant sought quashing and setting aside the impugned memorandum dated 14.01.2009 (Annexure-A/5) and impugned order dated 02.11.2015 imposing punishment (Annexure-A/3) as also the impugned order of the Appellate Authority dated 25.07.2017 (Annexure-A/4). He sought direction against the competent authority to reinstate the applicant in the service of KVS.
4. The applicant has also filed MA for seeking condonation of delay in filing this OA.
5. In the reply filed by the respondent it is averred that KVS, being a co educational school system, a special provision under Article 81(B) of the Education Code for KV is provided for termination of services of an employee who is found guilty of moral turpitude involving sexual offence or exhibition of immoral sexual behavior towards any student. Since it was a case of immoral sexual behavior of a teacher towards a girl student, it was not expedient to hold a regular inquiry as per CCS (CCA) Rules, 1965, as it caused serious embarrassment to the girl students or their guardians or parents. Referring to the judgment dated 02.05.2003 passed by Hon'ble Supreme Court in SLP (C) No.9808/2002 titled Director, Navodaya Vidyalaya Samiti & Ors. vs Shri Babban Prasad Yadav, it was averred that being a girl student of tender age, their safety and security was to be protected by preventing their exposure to the tardy process of cross examination etc. during inquiry. It is averred by the respondent that ::7 :: OA No 15/2018 allegations of immoral turpitude levelled against the applicant has been fully established during the inquiry. The girl's statement was confirmed by her classmates. There is no reason to level false allegation of moral attitude against the applicant. No parent or girl student would come forward to lodge complaint against their teacher. Justifying the decision of the Commissioner in dispensing with the regular inquiry under CCS(CCA) Rules, it is the reply of the respondent that applicant was provided with an opportunity to present his defense statements. The averments made by the charged official that the Head Mistress had any personal scores to settle with the applicant is unsubstantiated. The applicant was given show cause notice so as to enable him to submit his representation. Respondent prayed to dismiss the OA.
6. Heard learned counsel for the parties and perused the material available on record.
7. It is argued by the learned counsel for the applicant that complaint dated 14.02.2014 (Annexure-A/7) alleged to be in the writing of the victim seems to have been written by other person framing false complaint against him. In the report, there is no cutting and it is written in good handwriting which makes it prima facie unreliable. The complaint lodged by the father of the victim on the same date is also not reliable. The father of the victim is working as Assistant Manager in the NMDC at Bacheli and the husband of the Head Mistress Ms.Narayani Singh, Mr.L.B.Singh was also working in the NMDC, Bacheli as General Manager. He was also the Chairman of Vidyalaya Management Committee (VMC) of KVS Bacheli. Therefore, Mrs. Narayani Singh had overwhelming influence over K.V. Bacheli including the in-charge of Principal of said KV, respondent no.4 herein. It is argued that Mrs.Narayani Singh took undue advantage of position of her husband as Chairman of VMC in K V Bachel. She used to behave very odd with the applicant even since the first day of his joining at KV Bacheli on 01.08.2013. The respondent No. 3 was waiting for a chance to avenge against the applicant for his unwillingness to co-operate with her in her advancement towards the applicant. The applicant was beaten by a mob on 17.02.2014 and the alleged incident was not reported to the police by the ::8 :: OA No 15/2018 school authority. The Principal was under the obligation to report the matter to the police. The applicant while relying upon the judgment passed by Hon'ble Apex Court in the matter of State of Maharashtra vs Maruti [2022 (O) AIJEL-SC 70040] submitted that not reporting the matter to police is an offence on the part of the management of the school.
8. It is also argued by the learned counsel for the applicant that he was not provided proper opportunity to defend himself. He was not even allowed to cross examine the father of the victim and the Head Mistress of the school which is inimical to the applicant.
9. He argued that reply filed by him had not been considered in a just and fair manner. The Summary Inquiry Report dated 29.04.2014 is not in accordance with law and has been prepared in gross violation of the principles of natural justice. The applicant has been terminated based upon the proceedings under Article 81(B) of the Education Code which provides that the Commissioner shall record in writing the reasons under which it is not reasonably practical to hold such inquiry. However, in the present matter, the inquiry under CCS Rules have been dispensed with, without recording sufficient reasons.
10. It was also contended that the as per the provisions made under Article 81(B) of KVS Education Code, Deputy Commissioner of KVS was not authorized to constitute the Inquiry committee against the applicant. Before constituting the Complaint Redressal Committee vide order dated 21.04.2014 (Annexure-A/1) no reasons were assigned for proceeding under provisions of Article 81(B) of KVS Education Code dispensing with the proceeding under CCS(CCA) Rules 1965. The Commissioner, KVS was not authorized to delegate his power to the Deputy Commissioner for proceeding under the provisions of Article 81(B) of the KVS Code. Therefore, proceedings initiated by the applicant have been vitiated.
11. Learned counsel for the applicant further submitted that the applicant has been held guilty based upon the evidence against which he has not been given opportunity to rebut it. The proceeding of the committee has been initiated in contravention of the rules as also without the authority of the ::9 :: OA No 15/2018 competent authority. Therefore, the whole report has been vitiated. The committee has also not acted in accordance with the principles of natural justice. Therefore, learned counsel for the applicant prayed to allow this OA.
12. On the contrary, learned counsel for the respondents submitted that the Complaint Redressal Committee was constituted in accordance with the provisions of the KVS Education Code. Looking at the alleged sexual harassment by the applicant of the girl of tender age, the provisions of Article 81 (B) of the Education Code were invoked. While relying upon the judgment passed by the Hon'ble Apex Court in SLP(C) No.9808/2002 titled Director Navodaya Vidyalaya Samiti & Ors. vs Shri Babban Prasad Yadav as also judgment passed in the case of Avinash Nagra vs KVS in SLP(C) No.4511/1996 learned counsel for the respondent submitted that the respondent was absolutely within its right to dispense with the procedure under CCS Rules .
13. Having regard to the submissions made by the learned counsel for the parties and material available on record, the crucial question for consideration before this Bench is whether action of the commissioner dispensing with the regular inquiry as also deciding to terminate the service of the applicant in terms of Article 81(B) of Education Code for KV suffers from any illegality.
14. As per the provisions of Article 81(B) of Education Code, Commissioner has been empowered to terminate the services of the employees by giving him notice dispensing with procedure prescribed for holding inquiry for imposing major penalty in accordance with CCS(CCA) Rules, 1965 as applicable to the employees of KVS. However, the commissioner is required to record in writing the reasons under which it is not reasonable or practical to hold such an inquiry. This provision is invoked only in cases where commissioner is satisfied upon perusal of the inquiry report that any member of KV is prima facie guilty of moral turpitude involving sexual offence or exhibition of immoral sexual behavior towards any student. In this case, the respondent's stand was that it was a ::10 :: OA No 15/2018 case of immoral sexual behavior of a teacher towards a girl student, and hence it was not expedient to hold a regular inquiry as per CCS (CCA) Rules, 1965 as it would have caused serious embarrassment to the girl student or her guardian or parents.
15. In the facts of the present case, it emerges that the commissioner proceeded to invoke the provisions of Article 81(B) of the Education Code after going through the summary inquiry report submitted by the committee which found it established that the applicant indulged in the act involving sexual offence towards girl student of V class. In the impugned order, the commissioner of the KVS before dispensing with the process of regular inquiry for imposing the major penalty, was of the opinion that regular inquiry under CCS (CCA) Rules would cause serious embarrassment to the victim girl and could also cause trauma for the parents because of her tender age.
16. The learned counsel for the applicant while relying upon the judgment passed by the Hon'ble Guwahati High Court in WP(C) No.9972/2014 in the matter of KVS vs Jerome Reman Kerketta and the judgment of the Delhi High Court in WP(C) No.8226/2007 in the matter of Bidyut Chakraborty vs Delhi University & Ors. contended that the reasons recorded by commissioner for dispensing with the procedures for regular inquiry against the applicant is nothing but repetition of the provisions of Article 81(B) of the Education Code. The reasons given by the commissioner are in mechanical exercise of the discretion without application of mind. He further argued that the requirement of recording the reasons for dispensing with the procedure of regular inquiry should be complied with strictly since once inquiry is dispensed with, the commissioner exercises extra ordinary powers to terminate the service of an employee of the KVS after giving notice without holding an inquiry.
17. Learned counsel for the applicant in this regard drew our attention towards the observations made by Hon'ble Guwahati High Court in its judgment referred to above.
::11 :: OA No 15/2018"23. From the above, what transpires is that Article 81(B) is an exception to the general rule of holding regular enquiry under the Central Services (Classification, Control and Appeal) Rules, 1965. In other words, ordinarily in case of any misconduct by an employee of Kendriya Vidyalaya Sangathan, he would be subjected to a disciplinary proceeding conducted under the provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 but in case the conditions precedent mentioned in Article 81(B) are present, the regular disciplinary proceeding as contemplated above may be discarded and instead provisions of Article 81(B) may be invoked. Being an exception to the general rule, the provisions contained in Article 81(B) would have to be construed strictly. Therefore, the conditions precedent or sine qua non for application of Article 81(B) would call for strict scrutiny and unless the pre-conditions are satisfied, recourse to Article 81(B) would not be justified.
24.Delhi High Court in R.S. Misra (supra) had observed that mere parrot-like repetitions of the words extracted from Article 81(B) would not be enough. There is no room for assumption in such a situation and there cannot be any mechanical exercise of power of exercise of discretion according to whims or caprice. The discretion must be exercised keeping in mind the true purport of the provision and in a bona fide manner. The decision to dispense with the departmental enquiry cannot be rested solely on the ipse dixit of the Commissioner nor is a disciplinary authority expected to dispense with disciplinary enquiry lightly."
25. In Ved Mitter Gill (supra), Supreme Court was considering clause (b) of the second proviso to Article 311(2) of the Constitution, which empowers the concerned authority to impose the penalty of dismissal or removal from service or reduction in rank on a person employed in civil capacity under the Union or State without holding an enquiry, if that authority is satisfied that for some reason to be recorded in writing, it is not reasonably practicable to hold such inquiry. While it may not be necessary to go into the details for the judgment, it would be useful to record the views of the Supreme Court. Referring to the decision in Tulsiram Patel (supra), it was held that a disciplinary authority is not expected to dispense with a disciplinary enquiry lightly or arbitrary or out of ulterior motives or merely in order to avoid holding of an enquiry or because the department's case against the employee is weak and must fail. Whether it is practicable to hold enquiry or not must be judged in the context of whether it was reasonably practicable to do so. The opinion must be that of a reasonable man taking a reasonable view of the prevailing situation. The reasons for dispensing with the enquiry must be in writing and must precedent the order imposing the penalty. Though detailed particulars need not be mentioned, yet the reason must not be vague or just a repetition of the language used in the provision. In Tarsem ::12 :: OA No 15/2018 Singh vs State of Punjab, (2006) 13 SCC 581, which was also referred to in Ved Mitter Gill (supra), it was observed that if a preliminary enquiry could be conducted, why a formal departmental enquiry could not have been initiated."
18. Keeping in mind the observation made by Hon'ble Guwahati High Court regarding the strict compliance of the provisions of Article 81(B) of Education Code, when we consider the fact of the present case, we are of the opinion that in the facts and circumstances of the case, the decision of the commissioner invoking the provisions of Article 81(B) of Education Code and dispensing with the procedure for regular enquiry seems to be justified in accordance with the provisions of law. The incident of sexual harassment was towards a girl student of class V. At the time of incident, the students including the victim were in the sole supervision of the applicant. In this, the first response made against preliminary enquiry report, the applicant admitted that on 13.02.2014 all students of class V A were taken to the activity class room for showing presentation on LCD projector for Listening and Speaking activity. While denying the allegations made against him as totally false and unacceptable, it was his defence that when such things occurs unexpectedly or suddenly, in normal course of life, the victim shouts either in shock or in surprise, but the victim girl neither shouted in fear or surprise nor in shock. He further replied that even if we assumed that girl was true or any such incident had occurred, then also, it must be some prank or mischief done by the innocent fellow students and the girl would have thought otherwise. So it has to be assumed that such type of incident has not occurred. In his first reply he also stated that there was some conspiracy against him on the part of his enemy and that was why the allegations were made. It is relevant to mention here that on the date of incident i.e. 13.02.2014 the applicant was apprised of the complaint made by the father of the victim in the room of the Head Mistress. She told the applicant that there is an oral complaint of misbehavior against him by the said student and her father. The above factual aspect has been revealed from averments made in para 4.05 of the OA. Record also reveals that the statement of the victim, her class mates and her father were recorded on the same date i.e. 14.02.2014. Thereafter, Memorandum dated 15.02.2014 was issued to the ::13 :: OA No 15/2018 applicant to which he did not reply for four day. He replied only on 19.04.2014 wherein he denied the allegations made against him. However, there was no specific defence taken by him for the allegations made against him. He did not make any allegations against the Head Mistress or any other person who may have indulged in conspiracy against him. Based upon the preliminary inquiry, summary inquiry through Complaint Redressal Committee was conducted. The committee also after recording the statement including that of the victim and the applicant found that the applicant had misbehaved with the girl student. Based upon the Summary Inquiry report the commissioner decided to invoke the proceedings under Article 81(B) of the Education Code while dispensing with the procedure of regular inquiry under CCS(CCA) Rules. In our opinion, the Commissioner was absolutely right in saying that inquiry would cause serious embarrassment to the victim girl and could also cause trauma for the parents. In our considered opinion, as per the provisions of Article 81(B) of Education Code, the Deputy Commissioner is not debarred from constituting the inquiry committee. However, it is only the commissioner who can take decision on enquiry report under Article 81(B) of Education Code.
19. In view of the above factual position, we are of the view that the impugned decision of the commissioner is absolutely in accordance with law and based on the factual aspects of the case. The reasons recorded by the Commissioner for dispensing with the regular inquiry are valid and true and cannot be termed as mechanical in nature. The statement of the victim discloses that the applicant indulged in the act of moral turpitude involving sexual offence or exhibition of immoral sexual behavior towards her. Looking at the nature of defence taken by the applicant in response to memorandum dated 15.02.2014 to the effect that victim girl did not shout was rightly rejected by the committee, we are of the opinion that commissioner did not commit any error in rejecting the same. The girl of tender age may not dare to resist such type of act at once. However she narrated the incidence to her parents after reaching at home on the same day. The committee in a prudent manner conducted the inquiry and found the applicant guilty of the act alleged by the victim. The commissioner did ::14 :: OA No 15/2018 not commit error in relying upon the report of the committee establishing the guilt of the applicant. We are not in agreement with the contention of the learned counsel for the applicant since the applicant was not given an opportunity to cross examine the witnesses who made statement against the applicant, the committee violated the principles of natural justice.
20. In this regard learned counsel for the applicant relied upon the judgment passed by Hon'ble High Court in the matter of Professor Bidyut Chakraborty vs Delhi University & Ors. (supra). In this matter, the Hon'ble Delhi High Court observed that delinquent should get a fair opportunity to meet, explain and controvert the findings recorded by the inquiry officer. In the above matter, Hon'ble High Court observed that it was imperative on the part of the inquiring authority to give opportunity to the petitioner for cross examination not only of the complainant but also of the other witnesses examined by it. After going through the judgment, we are of the opinion that principles laid down in the judgment are not applicable in the facts of the present case. That case was decided in different set of facts wherein the member of university levelled allegations of sexual harassment against another member of university. In that matter, annexures to the inquiry report were also not supplied to the petitioner by the committee. He was also not given an opportunity to make representation against the report. Therefore the facts of the case decided by Hon'ble Delhi High Court are distinguishable from the facts of the present case and hence are not applicable in the present matter. The facts of the present case are covered by judgment of Hon'ble Apex Court in the matter of Avinash Nagra wherein Hon'ble Apex Court did not allow the cross examination of the girl. The Hon'ble Apex Court observed there as under:-
"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 but 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 tortuous process of cross-examination. Their statements were supplied ::15 :: OA No 15/2018 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 the 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 vitiated by violation of the principles of natural justice.
21. Keeping in view of the judgment passed by Hon'ble Apex Court in the matter of Avinash Nagra (supra) we are of the view that in the present matter the committee did not commit any error in taking decision in not affording an opportunity to the applicant for cross examination to the witnesses. The applicant did not raise any substantial defence in his first reply as also in his statement before the committee against the allegation levelled against him. The applicant was made available with the copies of the statement recorded against him. He was given full opportunity to represent his case. The report of the Summary Inquiry Committee was also supplied to the applicant and the committee also recorded his statement in question answer form. In his statement dated 29.04.2014 (Annexure-A/14) he did not raise any allegation against the Head Mistress of the KVS. Therefore, the allegations made afterwards seem to be after thought. Looking to the nature of the Summary Inquiry report, we see no illegality in the discretion used by the Commissioner in dispensing with the regular enquiry to give him show cause notice as to why services should not be terminated under Article 81(B) of the Education Code. Article 81(B) of the Education Code does not require charge against employees The applicant was given sufficient opportunity to make his defence before the committee. The committee opined that allegations have been proved against the applicant beyond reasonable doubt. Based on the preliminary committee report, the commissioner in the facts and circumstances of the case invoked provisions of Article 81(B) of the Education Code and terminated the services of the applicant. No illegality ::16 :: OA No 15/2018 has been committed by the respondent by terminating the service of the applicant. The gravity of the act of sexual assault committed by him towards girl student of class V makes him ineligible to be retained in such a noble profession which requires high moral conduct in his personal life also. In the result, the OA deserves to be dismissed. Hence dismissed. M.A. No.14/2018 seeking Condonation of Delay stands allowed. No order as to costs.
(A.K.DUBEY) (RAMESHWAR VYAS) Administrative Member Judicial Member SKV