Allahabad High Court
Thakur Prasad Maurya (T.P. Maurya) S/O ... vs Union Of India Thru Secy. Human Resource ... on 3 March, 2017
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved on 27.01.2017 Delivered on 03.03.2017 Court No. - 3 Case :- SERVICE BENCH No. - 2004 of 2009 Petitioner :- Thakur Prasad Maurya (T.P. Maurya) S/O Late R.D. Maurya Respondent :- Union of India through Secretary, Human Resource Development and others Counsel for Petitioner :- Abdul Moin, Abhinav N. Trivedi, Sameer Kalia, Satish Sharma Counsel for Respondent :- A.S.G., Hari Lal Gupta, Kaushik Chatterji, Raj Kumar Singh, Sunderam P. Hon'ble Sudhir Agarwal, J.
Hon'ble Ravindra Nath Mishra-II, J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. Heard Sri S.K. Kalia, learned Senior Advocate, assisted by Sri Sameer Kalia and Sri Deep Chaterjee, Advocates, for petitioner and Sri Sunderam P., Advocate, for respondent-Kendriya Vidyalaya Sanghathan.
2. This is a writ petition filed under Article 226 of Constitution of India, by Thakur Prasad Maurya, who is aggrieved by judgment and order dated 24.08.2009 passed by Central Administrative Tribunal, Lucknow Bench, Lucknow (hereinafter referred to as "Tribunal") dismissing his Original Application No. 230 of 2008 and upholding order of termination, dated 30.05.2008, passed under Article 81(B) of Education Code of Kendriya Vidyalaya Sanghthan (hereinafter referred to as "KVS") dispensing with regular enquiry on the ground that petitioner was found prima facie guilty of moral turpitude involving sexual offence/exhibition of immoral sexual behaviour towards girls students and that regular enquiry would likely to cause serious embarrassment to students and their guardians and therefore it was not reasonable practicable.
3. Petitioner was appointed initially as Trained Graduate Teacher (Maths) in Kendriya Vidyalaya (hereinafter referred to as "School") and was posted from time to time at different places. In 2007, he was posted at Kendriya Vidyalaya, Raksha Vihar, Kanpur. A complaint was made on 02.08.2007 by Ram Awadh Verma, father of a girl student of Class-9th that petitioner used to talk with his daughter indecently. Principal of School sought an explanation from petitioner vide letter dated 04.08.2007. Copy of said show cause notice was also forwarded to Assistant Commissioner, KVS, Lucknow. Petitioner submitted reply dated 07.08.2007 denying allegations and said that he has never been pointed out any complaint in the past. He also forwarded statements of 43 students of Class-9th.
4. Assistant Commissioner, KVS, Lucknow, however, passed an order on 20.08.2007 for an in-house "summary enquiry" constituting a Committee of Sri G.S. Saini, Education Officer, Smt. Sandhya Srivastava, Vice Principal, Kendriya Vidyalaya, Ordnance Equipment Factory, Kanpur. Smt. Suman Shukla, Post Graduate Teacher (English) of Kendriya Vidyalatya, Ordnance Equipment Factory, Kanpur was also nominated as Member of Enquiry Committee. The aforesaid Committee recorded statements of various students, some parents and some of the teaching staff of School. The report was submitted with conclusion that petitioner has shown an immoral indecent behaviour with the above girl student of Class-9th and complaint made by her father was correct. Committee has also reported that petitioner was in habit of misbehaving with ladies, spoke double meaning language and exploited innocent girls. He also exhibited immoral sexual behaviour to them.
5. Petitioner was placed under suspension vide order dated 3/5.09.2007. A show cause notice was issued on 8/12.02.2008 annexing a copy of summary enquiry report. Petitioner submitted representation/reply dated 25.02.2008 denying all the allegations levelled against him. He also appended with his representation some statements/clarifications of Guardians of some of students. Appointing Authority, however, passed order dated 30.05.2008 in purported exercise of power under Article 81 (B) of Education Code of KVS terminating him from service. He was however, to get three months pay and allowance as admissible under the Rules. The aforesaid order of termination was challenged before Tribunal in Original Application No. 230 of 2008 which has been dismissed, hence this writ petition.
6. Sri S.K. Kalia, learned Senior Advocate, challenging order of Tribunal as well as termination, contended, when show cause notice was issued to petitioner and he submitted reply, it was incumbent upon competent authority to consider explanation furnished by petitioner and other material and thereafter pass a speaking order, but that has not been done. The impugned order of termination is nothing but a denial of any opportunity, whatsoever, to petitioner inasmuch though a show cause notice was given but his representation/reply has not been considered and there is no application of mind on the defence taken by petitioner. It shows that alleged opportunity was nothing but a paper formality, nullifying so called compliance of principles of natural justice and for this reason alone, impugned order of termination is vitiated in law. In this regard, he placed reliance on the judgments of Supreme Court in Oryx Fisheries Private Limited Vs. Union of India and others 2010 (13) SCC 427 (Para 36, 37, 39, 40, 41), G. Vallikumari Vs. Andhra Education Society and others 2010 (2) SCC 497 (para 18, 19) and Messrs Mahabir Prasad Santosh Kumar Vs. State of U.P. and others 1970 (1) SCC 764. (para 6 and 7).
7. He further urged that a grave charge involving moral turpitude and sexual behaviour etc. was levelled against petitioner in respect whereto a summary enquiry was conducted. Therein no adequate opportunity of defence was afforded to petitioner. It was almost an ex-parte enquiry conducted by Enquiry Committee. It formed its opinion having no defence version looked into by it. The only occasion thereafter petitioner got, to place his defence, when he received show-cause notice. He replied the same not only taking his own stand but also supported the same with some relevant material but it was ignored by Disciplinary Authority while passing impugned order of termination. Petitioner has been punished on such a serious charge without considering his reply. The disciplinary authority mechanically stood guided solely by ex-parte summary inquiry report which has resulted in castigation, implication, condemnation and sentence of termination to petitioner without any opportunity of defence. This is against basic principles of natural justice. Article 81(B) of Education Code of KVS cannot be read in such a manner else it would be arbitrary and violative of Articles 14, 16 and 21 of Constitution of India. The aforesaid provision cannot be read in a manner so as to empower respondents to punish its officials, teaching or non teaching, as the case may be, merely on the basis of complaint and ex-parte enquiry and without giving any opportunity of defence to charged person, i.e., in total defiance of bare minimum compliance of principles of natural justice. He also argued that a summary enquiry does not mean a one sided ex-part enquiry. It may not be conducted in the manner as other regular enquiry are conducted where a charge-sheet is given to delinquent employee, he is given an opportunity to reply the same and thereafter oral inquiry is held and then enquiry report is submitted. A 'summary enquiry' means an expedited inquiry with a simplified procedure but it does not mean that such an enquiry can be conducted in complete denial of hearing to charged person. A 'summary enquiry' is not a regular enquiry but it also cannot be treated to be preliminary enquiry conducted for the purpose of collecting evidence to form a prima facie opinion on the correctness of charges so as to find out whether regular enquiry is needed or not. 'Summary enquiry' by its very nature is a combination of both but must include within itself participation of charged person so that he also has a say before enquiring authority. The report given by concerned body after conducting summary enquiry must have an indicia of giving opportunity to the charged employee also. Sri Kalia contended that show-cause notice, requiring reply from petitioner was not an empty formality but a matter of substance, therefore, there ought to have been an application of mind on the part of disciplinary authority in passing termination order. Since petitioner's reply has not been considered and discussed at all, it vitiates the order of termination. It is arbitrary, non speaking and in utter violation of principles of natural justice.
8. It is also argued that under Order 81 (B) it is the Commissioner, who has to take a decision and authority competent to dispense with the enquiry. In the present case, summary enquiry was conducted under the orders of Assistant Commissioner and thereafter report was forwarded to Commissioner, hence this also vitiates the entire proceedings being not in accordance with Article 81(B) of Education Code of KVS.
9. Lastly, it is contended that entire proceedings were vitiated on account of malice of Principal of School against whom petitioner has specifically pleaded and made averments in its reply to show-cause notice as also Original Application before Tribunal but none has responded to those allegations. Plea of mala fide specifically raised by petitioner has not been considered at all. Malice vitiates everything and in the present case since proceedings were initiated against petitioner on account of mala fide of Principal of School, hence entire proceedings are vitiated in law. He also submitted that the hasty manner in which entire things have been completed, also fortify his plea of mala fide. On 20.08.2007, Assistant Commissioner, KVS, Lucknow constituted Enquiry Committee. Summary enquiry was held on 21.08.2007 when statement of students, parents, staff members were recorded and on 29.08.2007, Enquiry Committee submitted report to Assistant Commissioner. Petitioner was placed under suspension on 05.09.2007. Assistant Commissioner forwarded summary enquiry report to Commissioner on 24.09.2007. Show-cause notice was issued to petitioner on 08/12.02.2008, annexing charges against petitioner, facts in support of charges, statements recorded in summary enquiry and report of summary enquiry. Petitioner submitted reply on 25.02.2008 wherein also, he annexed statements of 43 students of Class-9th which were in his favour. He raised specific plea of mala fide against Sri G.S. Arya, the then Principal of School. He pleaded that petitioner was senior most Teacher and Principal of School was going to retire on 31.07.2008 whereafter petitioner would have officiated in the School as Principal, but to exclude him from such opportunity, entire story was cooked up by the said Principal. He also argued that before Tribunal also, after judgment dated 24.08.2009 when Original Application was dismissed, petitioner filed a Review Application also but the same was also dismissed vide judgment dated 21.10.2009.
10. Learned counsel appearing for respondents, KVS, supported judgment of Tribunal and action taken by KVS stating that allegations levelled against petitioner are very serious involving minor girls students of Secondary level School. In order to protect modesty of students and also parents from social stigma, enquiry was conducted in a summary manner in which petitioner was also given opportunity and when complainants and all others corroborated charge of indecent/ immoral behaviour by petitioner, only thereafter order of termination was passed exercising power under Article 81(B) of Education Code of KVS.
11. We have heard learned counsels for parties at length and perused the record.
12. Here is a case where a senior Teacher having served in KVS, a Government of India's Society, managing a very large number of Schools throughout the Country, imparting education upto Class-12th, has been charged with the allegation of immoral and indecent behaviour with girls students. It cannot be doubted that doctrine of principles of natural justice is embodied in our constitutional scheme also and Courts have held that its observance is part of Articles 14 and 21 of Constitution. A Constitution Bench in Union of India and Another Vs. Tulsiram Patel and others AIR 1985 SC 1416 has held that unless specifically excluded by Statute, observance of principles of natural justice, i.e. twin principles, namely, no one shall be condemned unheard and no one shall be a Judge in his own cause, is necessary before condemning a person for something.
13. Very recently in Board of Control for Cricket Vs. Cricket Association of Bihar 2016 (8) SCC 535 (Para 47), Hon'ble T.S. Thakur, Chief Justice has observed that principles of natural justice are not codified Rules of procedure and it is well settled. Courts have repeatedly declined to lay down in a strait-jacket, their scope and extent. The extent, the manner and the application of these principles depends so much on the nature of jurisdiction exercised by Court or Tribunal, the nature of the inquiry undertaken and the effect of such inquiry on the rights and obligations of those before it.
14. The statutory provisions, excluding expressly or by necessary implication rules of natural justice are not per se illegal but while interpreting or applying those statutory provisions, Courts have tried to import, as much as possible, atleast an element of fairness in action taken. The minimum procedural fairness has been read therein. It has been held that duty to act fairly is distinct from duty to act judicially in accordance with natural justice. Further, duty to act fairly would stand discharged even if there is no oral hearing. Court have held that something done fairly would satisfy the requirement of natural justice in a given case. The reason being that attempt has always been to exclude an element of arbitrariness or misuse of power, abuse of discretion etc. In other words, it can be said that fairness has been held sufficient to denote abstention from abuse of discretion.
15. In some cases, the element of fairness coming from requirement of speaking order has been held satisfied where a real and proper consideration on the part of authorities concerned has been found evident from record. Meaning thereby, instead of looking into the form of order, it has to be seen whether there is something within the ambit or sphere of deliberation. It has been held that principles of natural justice are not immutable but are flexible.
16. In the constitutional scheme, time and again, Courts have given a high pedestal to the principles of natural justice, but, in certain peculiar facts and circumstances of cases, have also recognized certain exceptions thereto and application thereof has also been moulded in different form so as to justify an otherwise constitutional action in larger public interest. For example, in a case of mass copying, a detailed individual enquiry has been held not necessary in Bihar School Examination Board Vs. Subhas Chandra Sinha and others 1970 (1) SCC 648. The said view has been reiterated in Ramanjini and others Vs. State of A.P. and others 2002 (5) SCC 533 and Board of High School and Intermediate Education, U.P., Allahabad and another Vs Bagleshwar Prasad and another 1963 (3) SCR 767. The aforesaid judgments have been considered and explained as to when individual opportunity may be necessary and when not recently in Nidhi Kaim Vs . State of Madhya Pradesh and others 2016 (5) SCALE 246.
17. Our endeavor is only to show that in given cases, certain exceptions are also well recognized in the context of application of principles of natural justice. Without going in the huge ocean of judicial precedents dealing with principles of natural justice, suffice it would be to first examine basic facts in this case and thereafter to find out, whether here is a case where it can be said that action taken by respondents satisfies bare minimum requirement of principles of natural justice, i.e., fair action and the extent of application of principles of natural justice in the factual backdrop of this case.
18. In order to maintain secrecy of students we are refraining from mention of names and would refer them by alphabets.
19. Father of girl student 'A' made complaint against petitioner as under:
^^fouez izkFkZuk gS fd vki ds fo|ky; ds ,d v/;kid Jh Vh0ih0 ekS;kZ th us esjh csVh 'A' (name excluded) tks fd blh fo|ky; esa Dykl IXth dh Nk=k ls vlE; rFkk v'yhy ckrsa vdsys esa cqyk dj dg jgs FksA d`i;k Jh ekS;kZ lj ds f[kykQ dk;Zokgh dh tk;A^^ "It is most humbly submitted that a teacher of your school Shri T.P. Maurya was telling bad and obscene talks to my daughter 'A' (name excluded), who is the student of class IX in this school itself, by calling her alone.
Kindly take action against Shri Maurya Sir."
(English Translation by Court)
20. Before Enquiry Committee, Girl student 'A' herself made following statement:
^^ekS;kZ lj th us eq> dks dEI;wVj Dykl ds ikl jksd fy;k tks yM+dh esjs lkFk Fkh] mls Dykl esa Hkst fn;k vkSj eq>ls iqNus yxs fd rqe vius leht ds vUnj D;k igurh gks] eSa 'kkSd gks xbZ fd lj eq>ls D;k dg jgs gSa] eSus lj ls dqN ugh dgkA vUgksus esjh ihB Nq dj dgk czk cM+s uEcj dh iguk djks] NksVk czk er iguk djksA eq>s mUgksaus nwljs fnu dgk fd eq>ls vdsys esa vkdj feyksA eSa ugha xbZA 9th ihjM esa vk dj dgk rqeus viuk czk psUt ugha fd;kA vkSj dgk viuh eEeh ls dgks fd rqEgsa cM+k okyk ykdj nsaA^^ "Maurya Sir stopped me near the computer class, he sent the girl accompanying me in the class and asked me as to what I wear inside my sameej, I became shocked that what sir was saying to me, I didn't say anything to sir. By touching my back, he asked me to wear a bra of bigger number and not a small bra.
Next day he asked me to meet him alone. I didn't go. He came in the 9th period and said, that did I not change my bra. And told me to tell my mother to bring a bigger one."
(English Translation by Court)
21. Similarly other girls students 'B', 'C' of Class- 9th, 'D', 'E' of Class-8th and several others made similar complaints which all are part of record before us. A bare reading of all these statements demonstrate vicious behaviour of person against whom all these students deposed before Enquiry Committee. Not only this, some parents namely, Mrs. Manorama Sharma, Mrs. Shashi Shukla and Mrs. Suman Singh made similar complaints against petitioner. We also find from record that after receiving notice from the Principal of School, petitioner went to the residence of complainant. When questioned by Enquiry Committee as to why he went there, he replied "to remove the unhealthy thinking." He did not tell before Enquiry Committee that he went to protest to the complaint about its falsity etc. It shows that at the first available opportunity, when Enquiry Committee gave hearing to petitioner, he was found to pursue complainant in his own way. Visit to the complainant's house was admitted by him before Enquiry Committee. He did not claim that complaint made against him was false or that he had gone to the house of complainant to lodge his protest against alleged false complaint. His answer, as noticed above, is vague and justifies inference of substantial truth in complaint. It is in this backdrop when a large number of girls students of Classes-8th and 9th made statements before Enquiry Committee which comprised of members of another School and not respondent-5, it cannot be said that summary enquiry was conducted ex-parte in which petitioner was not given opportunity to explain his conduct. His own statement recorded by Enquiry Committee is also part of documents submitted by Enquiry Committee along with its report which were supplied to petitioner also. On this aspect no explanation has been given by petitioner.
22. In the reply submitted by petitioner to show-cause notice, he has reiterated about his alleged innocence. He has also made allegations against respondent-5, Principal of School, though, admittedly, Enquiry Committee consisted of Principal of another School, Education Officer and a Senior Teacher of another School. Against Members of Enquiry Committee, we find no allegation of malice or bias at all. In the circumstances, bare allegations against respondent-5 who had no role otherwise except forwarding of complaint, received from a student's parent, to Assistant Commissioner and seeking a formal explanation from petitioner. He could not have caused any material impact in respect of ultimate action taken by much superior authorities, holding summary enquiry and thereafter termination under Article 81(B).
23. The authorities cited by learned Senior Counsel in support of his submissions, in our view, have no application to the facts of the present case. None of the authorities cited by him is in the context of a case of disciplinary action against a Teacher subjected to allegations of immoral and indecent behaviour with minor girls students of a Secondary Educational Institution.
24. With regard to the nature of summary enquiry and opportunity to petitioner, reliance has been placed on a Division Bench judgment of Karnataka High Court in Writ Petition No. 23255 of 2002 (Government of India and others Vs. Sri Dhanu S. Rathod) decided on 01.07.2002 wherein validity of Article 81(B) of Education Code was also challenged. Relying on Union of India Vs. Tulsiram Patel (supra) and Avinash Nagara Vs. Navodaya Vidyalaya Samiti, 1997 (2) SCC 534, Court upheld Article 81(B) observing that it is analogous to Article 311(2)(b) Second Proviso and such a Rule is in public interest and for public good. Rule is applicable only to those employees who are prima facie found guilty of immoral turpitude involving sexual offence or exhibition of immoral sexual behaviour towards student. Therefore, Rule 81(B) providing for dispensation of a regular enquiry if Commissioner is satisfied that it is not reasonably practicable to hold an enquiry, is neither arbitrary nor unreasonable. Court also makes a distinction between 'regular enquiry' and 'summary enquiry'. Article 81(B) dispenses with a regular enquiry in extraordinary circumstances but not a 'summary enquiry'. The in-built safeguards against arbitrariness and misuse under Article 81(B) are:
(a) The power to terminate is given only to Commissioner, who is the highest Executive of KVS;
(b) Commissioner is required to hold a summary enquiry and satisfy himself that the employee is, prima facie, guilty of moral turpitude involving any sexual offence or exhibition of immoral behaviour with any student;
(c) Commissioner has to record his opinion, in writing, that it is not expedient to hold a regular enquiry in view of serious embarrassment to be caused to students or their parents or similar other practical difficulties; and
(d) Commissioner should keep the Chairman of Sangathan informed of such action.
25. The aforesaid safeguards also protect Article 81(B) from violation of Article 14 and 16 and fortify its constitutional validity.
26. The validity of Article 81(B) was also challenged in Writ Petition (Writ-A) No. 1168 of 2005 (Dr. Indra Datta Pandey Vs. Central Administrative Tribunal and others) decided on 07.12.2016 and this Court agreeing with Gauhati High Court's judgment, wherein validity of the said provision was upheld, sustained the same. We also express our agreement with the judgment of Karnataka High Court in Government of India and others Vs. Sri Dhanu S. Rathod (supra) wherein also validity of Article 81(B) was upheld.
27. In the present case, we have already observed that though a regular enquiry was not conducted but in summary enquiry, petitioner was associated and his statement was also recorded. We also find an attempt on his part to pursue complainant in his favour by visiting his residence after receiving show-cause notice. No categorical reply was given as to why he visited complainant's residence. Atleast he had no otherwise grudge against complainant that any false complaint was made since that is not answer he has given before Enquiry Committee on 21.08.2007 which was a date very near to the entire episode. If there would have been any falsity in the entire thing, that would have been the first cause of grievance on the part of petitioner against complainant but that is not so.
28. Moreover, various girls students and their parents have made statements/complaints against petitioner demonstrating perversity and viciousness on his part vis-a-vis girls students. We have not quoted those statements here in extensio since even bare reading thereof is shameful. We are concerned here with a person in the status of a Teacher (Guru) in a Secondary School where large number of girl students were studying, it being a co-educational institution. Before Enquiry Committee even members of staff corroborated complaint and statements of students. This shows a continuous pervert activity on the part of petitioner since no one could dare earlier to complaint against him but once a student and her parents stood, and became whistle blower, many others also came forward, corroborated and fortified viciousness in the behaviour of petitioner.
29. In these facts and circumstances, it is difficult to hold that bare requirement of principles of natural justice, i.e., fairness in the action is absent in the present case or that petitioner has been made to suffer or condemned without any opportunity whatsoever.
30. It is pointed out that petitioner appended along with his reply statements of 43 students but petitioner did not produce any one of them before Enquiry Committee on 21.08.2007 when his own statement was also recorded by Enquiry Committee. These statements, therefore, in our view would not help him in view of clear stand taken by students who reiterated complaint written in their own handwriting before Enquiry Committee.
31. It is really a matter of shame that here is a case where a Teacher has been found guilty of such indecent act. In our Country, Teachers are given a special status and even above God. Parents and their children and most particular minor girl students have a firm confidence that like parents, Teachers of Schools also protect students in every manner including behaviour. No one can ever tolerate to stay a Teacher even for a day if even in-deliberately he is found indulged in indecent behaviour with a girl student or even lady staff. When a complaint is made against a Teacher to have misbehaved with a girl student or a co-lady Teacher in an Educational Institution, nature of enquiry need be conducted in such matters, does not attract the same length and width as is contemplated in regular enquiry supposed to be conducted in other matters. The interest of students and their parents is to be seen and need be protected by not involving them in a normal procedure of regular enquiry. It is for this reason, in such type of incidents, requirement of principles of natural justice has been read in a different manner. The opportunity of examination of witnesses and cross-examination have been held, not required, and it will not vitiate ultimate action against such person.
32. At the pain of repetition, we observe that in our Country, and in particular, in Hindu scriptures, place of Teacher is that of God like Brahma, Vishnu and Mahesh. There is a well known verse, "Gurur Brahma, Gurur Vishnu, Gurur Devo Maheshwaraha"
33. Special status of teacher has been reminded by Court in Avinash Nagra vs. Navodaya Vidyalaya Samiti and others (1997) 2 SCC 534. Therein, Avinash Nagra was a Post-graduate teacher employed in Navodaya Vidyalaya in 1994. The Institution was a co-educational Institution. Sri Nagra was terminated in terms of letter of appointment on the ground of his improper conduct with a girl student. Writ petition against termination order was rejected, whereafter matter came to Supreme Court. Counsel for Sri Nagra argued that an inquiry ought to have been conducted against alleged misconduct. Court directed management of Navodaya Vidyalaya to give a show cause notice to petitioner. In furtherance thereof, show cause notice was issued to Sri Nagra along with statement of girl, her room-mates etc. After receipt of explanation submitted by Sri Nagra, management drew a report and submitted to Court with finding of guilt of Sri Nagra, of moral turpitude involving exhibition of immoral sexual behaviour, towards a girl student in Jawahar Navodaya Vidyalaya, Kinnaur. It is in this backdrop, matter was decided by Supreme Court vide judgment dated 30th September, 1996.
34. Similar arguments as raised before us were also raised therein that Sri Nagra ought to have been allowed to participate in a detailed inquiry, giving an opportunity to cross-examine complainant i.e. girl student and others; and that procedure followed was in violation of settled principles of natural justice. Rejecting this contention, Court held that educational Institution was part of chain of nation-wide co-educational specialized Institutions and almost 1/3rd students were girls. With a view to ensure safety and security to girls students, to protect their modesty and prevent their unnecessary exposer at an enquiry, in relation to conduct of a teacher, resulting in sexual harassment of girl student etc., involving misconduct or moral turpitude, a resolution prescribing special summary procedure was proposed and published by notification dated 23 December, 1993, after due approval of Executive of Educational Institution Committee. The notification postulates to dispense with regular enquiry under Rules. The provisions, therefore, contemplated a situation where instead of adopting regular procedure under rules, to terminate services of an employee, a summary procedure may be followed and adopted by dispensing with a regular enquiry.
35. It is in this backdrop, Court in Avinash Nagra (supra) first considered, whether in respect of a teacher such summary inquiry would be justified or not. Court considered special status and position, a teacher enjoys in this country. Quoting Father of the Nation, Court said that a teacher cannot be without character. If he lacks it, he will be 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. Quoting Shri Aurobindo, Court said 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. Court also referred Dr. S. Radhakrishanan saying 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'. Swami Vivekananda was also quoted saying that 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.
36. In para 12 of Judgment, Court in Avinash Nagra (supra) said as under:
"..............Indian society has elevated the teacher as `Guru Brahma, Gurur Vishnu Guru Devo Maheswaraha'. 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 teachers 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 owed 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 Constitutional 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............." (emphasis added)
37. Having said so, Court said that in a country where percentage of education among girls, even after independence, is fatham deep due to indifference on the part of all in rural India except some educated people, if a teacher of Educational Institution is indulged in such kind of activities and, thereafter, girl students are to be embarrassed by allowing participation in a detailed inquiry wherein they are also to be allowed to cross-examine by teacher concerned, it will result in a serious negative impact on the cause of education, particularly to girl students. In a country like ours, greater responsibility is thrust on management of schools and colleges to protect young children and in particular, growing up girls, to bring them up in a 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 in-charge expected of a teacher. When a teacher by his conduct has betrayed the trust and forfeited the faith, he cannot claim a full-fledged enquiry and it is sufficient, if basic compliance of natural justice is observed by giving a show cause notice informing allegations levelled against him and substantial disclosure of material available against him and thereafter a decision is taken after considering his reply.
38. Court in Avinash Nagra (supra) also said as under:
"...........Enquiry is not a pannacea 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.......... 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."
39. Similarly in another matter in Hira Nath Mishra and others vs. The Principal, Rajendra Medical College, Ranchi and another (1973) 1 SCC 805, some male students entered into a girls' Hostel and allegations of indecent behaviour were levelled against them. An Enquiry Committee was constituted consisting of some independent persons who conducted a summary enquiry and after taking statements of girl students, without confronting them with male students, action was taken against erring students. The action taken against male students was challenged on the ground that enquiry was conducted behind their back and it is not consistent with the principles of natural justice. Repelling this argument, Court said that in this background it cannot be said that principles of natural justice would require that statements of girl students should have been recorded in presence of male students concerned and an opportunity of cross-examination by male students should have been allowed. Court said that principles of natural justice cannot remain the same, applying to all conditions. Referring to Statute like Goonda Act, Court noted that therein evidence can be collected behind back of goondas. They may be merely asked to represent against main charges arising out of evidence collected. Court observed:
"Care is taken to see that the witnesses who gave statements would not be identified. In such cases there is no question of the witnesses being called and the goonda being given an opportunity to cross-examine the witnesses. The reason is obvious. No witness will come forward to give evidence in the presence of the goonda. However unsavoury the procedure may appear to a judicial mind, these facts which are to be faced. The girls who were molested that night would not have come forward to give evidence in any regular enquiry and if a strict enquiry like the one conducted in a court of law were to be imposed in such matters, the girls would have had to go under the constant fear of molestation by the male students who were capable of such indecencies..........."
(emphasis added)
40. These authorities in Avinash Nagra (supra) and in Hira Nath Mishra (supra) have been followed in several subsequent authorities including a Division Bench of this Court in Dr. Bhishambhar Dayal Gupta vs. Visitor/ President of India, Aligarh Muslim University and others 2005 (4) ESC 2284, and Dr. Indra Datta Pandey Vs. Central Administrative Tribunal and others (Writ-A No. 1168 of 2005) decided on 07.12.2016.
41. In the present case, petitioner was a Teacher of a Secondary Educational Institution where girl students were also studying. Complaints of indecent sexual behaviour and molestation on the part of Teacher with girls students was confirmed in summary inquiry conducted by Committee constituted by Authorities of KV Sangathan who are authorized to do so under the rules. This material was made available to petitioner along with accusation and he was given opportunity to submit reply in which in a guarded manner he admitted some part of incidents with a girl student though not in the same way as was complained by said girl student. In the entirety of facts and circumstances and material available before competent authority, it found petitioner guilty of allegations and charges levelled against him. Following the procedure prescribed in rules which permits dispensation of regular enquiry, petitioner has been terminated. It cannot be said that procedure followed by authority concerned is illegal or there is denial of adequate opportunity of defence particularly when action taken is squarely within the procedure prescribed under Article 81(B) of Education Code for KVS.
42. Counsel for petitioner has placed reliance on authorities which basically deals with a situation attracting regular departmental enquiry. In our view, none of these authorities which have been cited or relied on behalf of petitioner is attracted in the case in hand.
43. It is then submitted that punishment order dated 27.01.2001 is non-speaking and reliance is placed upon the judgments in The Siemens Engineering Manufacturing Consolidation Officer of India vs. Union of India and others, AIR 1976 SC 1785 and Divisional Forest Officer, Kothagudam and others Vs. Madhusudhan Rao (2008) 3 SCC 469. In our view, it cannot be said that order of punishment is non-speaking inasmuch as entire accusations/ allegations were already communicated to petitioner in show cause notice along with material. Since regular departmental enquiry was dispensed with, it did not require competent authority to pass a detailed order like judgment.
44. It is then contended that entire material was not supplied to petitioner but we find that enquiry report along with relevant material was supplied and, therefore, aforesaid submission is also unsustainable.
45. Last submission is that termination is harsh and excessive but looking to the nature of charges, we are not inclined to agree with submissions. We are satisfied that in present case, Tribunal cannot be said to have erred in law in dismissing Original Application filed by petitioner and confirming termination order.
46. In view of above discussion, we find no legal, factual or otherwise fault in the order of Tribunal warranting interference in writ jurisdiction under Article 226 of Constitution of India. Writ petition, hence, lacks merit. It is, accordingly, dismissed.
47. There shall be no order as to costs.
Dt. 03.03.2017 PS