Central Administrative Tribunal - Ahmedabad
Bharat Mehta vs Union Of India (Uoi) And Ors. on 5 November, 2004
Equivalent citations: 2005(2)SLJ338(CAT)
JUDGMENT Shankar Prasad, Member (A)
1. Aggrieved by the order dated 8.11.2000 terminating his service and that of Appellate Authority upholding the same, the applicant has preferred the present O. A. He has sought for the reliefs of quashing of these orders. Relief has not been sought to declare Rule 81(B) of the Code as ultra vires of the Constitution.
2. The case of the applicant, who was a librarian with Kendriya Vidyalaya Sangathan, in brief, is that he joined the service in 1986. A girl student of class VI Ms. Manisha lodged a complaint of improper behaviour against him. Ex parte inquiries were conducted by principal K.V. Surat without disclosing the nature of charges. Another ex parte enquiry was also conducted by Education Officer, KVS Ahmedabad Region without disclosing the nature of charges. A police complaint was also lodged. He was suspended after being arrested. His services have been terminated by dispensing with regular inquiry under Rule 81B and in accordance with that rule. The applicant approached the Tribunal vide OA 7847 2000, but was relegated to the remedy of appeal. The Appellate Authority has dismissed the appeal.
The further case of the applicant is that Rule 81-B of Education Code, which confers arbitrary powers to dispense with the services of even a confirmed employee, are excessive and are violative of Articles 14, 16 & 311 of the Constitution. Such wide and unguided power can not be conferred by executive instructions. It is contrary to CCS (CCA) Rules.
In any case both the reasons recorded for the exercise of said powers do not bear scrutiny. Both the said reasons namely the atmosphere of the school getting vitiated and the girl getting embarrassed are extraneous. The said student was examined by the police and is a witness in the police chargesheet.
Both the orders have been passed in violation of principal of natural justice and without application of mind.
Rejoinder has been filed.
3. The respondents have stated in their reply that Rule 81-B confers powers to dispense with the inquiry. The Education Officer had conducted an enquiry and submitted a report to Commissioner KVS. The statement of applicant, the victim girl and other student/staff was recorded. The impugned orders were passed in exercise of powers conferred under Rule 81B. The grounds for dispensing with the enquiry have been indicated. Rule 81-B of Education Code is pari materia with identical provisions of Navodaya Vidyalaya Samiti, which have been upheld in Avinash Nagra v. Navodaya Vidyalaya Samity, 1997 SCC (L&S) 565 : 1997(2) SLJ 42 (SC). Other Benches of the Tribunal have followed this decision. The orders have been properly passed.
4. We have heard the learned Counsels.
5. The submission of learned Counsel for the applicant can be summarised as follows:
(a) As the employee is a permanent employee of the KVS, his services can not be terminated without a full fledged departmental inquiry.
(b) Powers under Rule 81(B) are ultra vires of the Constitution. Causing serious embarrassment to girl student is not a sufficient ground for dispensing with the inquiry.
(c) The applicant was never informed of the charges. Both the complaint of V.L. Barva Rajkot and statement given by the girl student before the police could have been part of the chargesheet. If the girl herself will be examined in a Court of law why can't the departmental enquiry be held in camera, where public participation will be prevented.
6. The applicant has also relied on the decisions of the Apex Court in Jaswant Singh v. State of Punjab. A.K. Kaul v. UOI, and Indian Railway Constitution Company v. Ajaykumar.
7. The Apex Court in Jaswant Singh v. State of Punjab, held.
"We therefore, enquired from the learned Counsel for the respondents to point out what impelled respondent No. 3 to take a decision that it was necessary to forthwith terminate the services of the appellant without holding an inquiry as required by Article 311(2). The learned Counsel for the respondents could only point out Clause (iv)(a) of sub-para 29(A) of the counter which reads as under:
"The order dated 7.4.81 was passed as the petitioner's activities were objectionable. He was instigating his fellow police officials to cause indiscipline, show insubordination and exhibit disloyalty, spreading discontentment and hatred, etc. and his retention in service was adjudged harmful".
This is no more than a mere reproduction of paragraphs of the impugned order. Our attention was not drawn to any material existing on the date of the impugned order in support of the allegation contained in paragraph-3 thereof that the appellant had thrown threats that he and his companions will not allow holding of any departmental enquiry against him and that they would not hesitate to cause physical inquiry to the witnesses as well as the enquiry officer if any such attempt was made. It was incumbent on the respondents to disclose to the Court the material in existence at the date of the passing of the impugned order in support of the subjectivity satisfaction recorded by respondent No. 3 in the impugned order. Clause (b) of the second proviso to Article 311(2) can be invoked only when the authority is satisfied from the material placed before him that it is not reasonably practicable to hold a departmental enquiry. This is clear from the following observation of Tulsi Ram's case:
"A Disciplinary Authority is not expected to dispense with a disciplinary enquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the Government servant is weak and must fail."
The decision to dispense with the departmental enquiry can not, therefore be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a Court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer. In the counter filed by the third respondent it is contended that the appellant, instead of replying to the show cause notices, instigated his fellow police officials to disobey the superiors."
It is clear from the Apex Court judgment that the applicant Shri Jaswant Singh had been proceeded against in respect of two other chargesheets. The Revisional Authority directed reinstatement and issue of fresh show cause notices. Immediately after his resuming duties on 5.3.81 he was placed under suspension. Two notices were issued to him on 4.4.81 to show cause as to why he should not be dismissed from service. Before the service of notice, this incident took place. The applicant was chargesheeted in a criminal case Under Section 309 IPC. He was also dismissed from service. Though the applicant was convicted by the trial Court, the appellate Court acquitted him holding that he had incurred the wrath of his superiors including his appointing and dismissing authority. The possibility of being falsely implicated was also not ruled out.
The above decision has to be seen in this background.
8. The applicant A.K. Kaul in A.K. Kaul v. UOI, was a Dy. CIO in Intelligence Bureau and was dismissed after invoking sub clause (c) of proviso to Article 311(2) of the Constitution. The Apex Court, amongst others, held:
"An order passed under Clause (c) of the second proviso to Article 311 (2) is subject to judicial review and its validity can be examined by the Court on the ground that the satisfaction of the President or the Governor is vitiated by mala fides or it based on wholly extraneous or irrelevant grounds within the limits laid down in ."
This case relates to exercise of power under sub-clause (c) of proviso to Article 311(2).
9. The Apex Court in Indian Railway Construction Company v. Ajaykumar, 2003 AIR SCW 1301 : 2003(2) SLJ 334, has held:
"If there is material with the concerned authority that there is likelihood of witnesses not coming forward due to threats, coercion, undue influence etc. indulged by the delinquent, certainly it would be germane ground for dispensing with enquiry and to hold that it would not be possible to hold a fair enquiry. Where except making a bald statement that charged employees can indulge in intimidating and violent acts, persons would not come forward, there is no other material. On the basis of a presumptuous conclusion, the concerned authority should not dispense with enquiry. If there exists material and basis for coming to a conclusion, same has to be specifically dealt with. If such material exists certainly it would be a valid ground for dispensing with enquiry. That is an aspect relates to impracticability of holding an enquiry."
10. Our attention has also been drawn to the decision of Jaipur Bench in Khemchand Yadav v. UOI, 2000(2) ATJ Page 250. The case of respondents KVS was set out in para-03 which is as follows:
"It is stated in the reply that the applicant exhibited unnatural and immoral sexual behaviour towards a student of K.V.S. Master Sawai Singh. On preliminary investigation made by the Committee headed by Asstt. Commissioner, KVS, Charge against the applicant was established and ultimately the services of the applicant were terminated by the impugned order dated 15.2.99. It is also stated that Article 81(b) of Education Code, empowered the Commissioner of KVS to dispense with the regular enquiry if he is satisfied that it will not be practicable to held an enquiry under CCS (CCA) Rules, 1965 and Commissioner of KVS decided to dispense with the regular enquiry against the applicant under CCS (CCA) Rules, 1965 and terminated the services of the applicant. It is further stated that the preliminary enquiry was held on 11.1.99 and after recording the statement of the child victim and his parents, the applicant's teacher was found guilty and accordingly the services of the applicant were terminated vide the impugned order dated 15.2.99, which is perfectly legal and valid and this OA having no merits is liable to be dismissed."
The Jaipur Bench, after citing the decision in Jaswant Singh, UOI v. Tulsiram Patel, Satyavir Singh, decision of Rajasthan High Court in Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar held that services of permanent employee can not be terminated automatically and without assigning any reason. It held as follows:
16. Although the charge against the applicant is serious and grave, but reasons for dispensing with enquiry are not objective and proper. It also appears that the preliminary enquiry conducted in this matter is at the back of the employee, therefore, provisions of Rule 14(2) of CCS (CCA) Rules is not required to be invoked only for byepassing the departmental enquiry as it snatches the valuable right or opportunity of hearing of the applicant.
17. We, therefore, allow the OA and quash the impugned order of termination dated 15.2.99 and direct the respondents to reinstate the applicant is service within a month from the date of receipt of a copy of this order, without any back wages. It however will be open for the respondents to initiate a departmental proceedings against the applicant in accordance with the Rules/procedure. No order as to costs."
11. The respondents on the other hand have relied on the following decisions.
(a) Avinash Nagra v. Navodaya Vidyalaya Samiti and Ors., 1997 SCC (L&S) P. 565
(b) SLP 9808/2002, Director Navodaya Vidyalaya Samiti v. Babban Prasad Yadav and Anr.
(c) The decision of Kerala High Court in OP 5929/1995 in V.A. Sami v. UOI, Commissioner KVS and Ors.
(d) The decision of Madras Bench in OA760/1999, A.S. Nathan v. Commissioner KVS
(e) The decision of Ernakulam Bench in OA 434/1999, K. Chandran v. Commissioner KVS.
(f) The decision of Calcutta Bench in OA 81/2002, Rahtan Chandra Pal v. UOI, Commissioner KVS and Ors.
12. The Apex Court in Avinash Nagra v. Navodaya Vidyala Samiti was considering the case of a teacher of Navodaya Vidyalaya Samiti, who had been dismissed by giving salary in lieu of notice on the ground of his improper conduct with a girl student in terms of the appointment letter. On the insistence of petitioner's Advocate the Apex Court directed the management to issue a show cause notice to the petitioner, to conduct an enquiry and submit a report. The statement of the girl student, her room mates & attendant were supplied to the applicant and after consideration of his explanation, a report was submitted to the Apex Court.
The Apex Court in para-6 of its judgment has noted "the first question that arises for our consideration is whether the dismissal of the applicant in terms of his letter of appointment is vitiated by any error of law and whether he is entitled to a full fledged enquiry and opportunity to cross examine, the girl students who have given the statements against the appellant ?"
The Apex Court took note of the co-educational character of the institution, the special procedure provided to protect the modesty of girl students and to prevent their unnecessary exposure to enquiry in such cases, the need for education particularly girl student and the responsibility/conduct expected of the teacher. It also noted in salient features of the scheme and safeguards in para-3 of the judgment. It held:
"Under those circumstances, the question arises whether the girl and her roommates should be exposed to the cross-examination and harassment and further publicity? In our considered view, the Director has correctly taken the decision not to conduct any enquiry exposing the students and modesty of the girl and to terminate the services of the appellant by giving one month's salary and allowances in lieu of notice as he is a temporary employee under probation. In the circumstances, it is very hazardous to expose the young girl to tardy process of cross-examination. Their statements were supplied to the appellant and he was given an opportunity to controvert the correctness thereof. In view of his admission that he went to the room in the night, though he shifted the timings from 10 p.m. to 8 p.m. which was not found 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."
(Emphasis applied by us)
13. The Apex Court in Director, Navodaya Vidyalaya Samiti and Ors. v. Babban Prasad Yadav was considering the appeal from the High Court. The High Court had allowed the writ petition filed against the decision of CAT and set aside the order and had given liberty to the Samiti to conduct a regular enquiry into the charges levelled against the applicant.
The appellants relied on the decision in Avinash Nagra's case. They contended that the enquiry was conducted in accordance with the special rule. They also relied on the letter written by the said teacher whose handwriting had been proved by expert. It was contended that the High Court erred in relying upon the principles enshrined in Article 311(2) as the said article is not applicable in case of Samiti.
The respondents contended that the decision of High Court should not be interfered as High Court merely directed an enquiry and has not decided the issue on merits. It was also stated that the decision in Nagara's case was distinguishable and should be limited to facts of that case as the decision in that case was rendered in the background of the fact that the employee in question was a mere probationer.
The Apex Court Held:
"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 pre-conditions to the exercise of power under the said rule are fulfilled. These pre-conditions are (1) holding of a summary enquiry, (2) a finding in such summary enquiry that the charged employee was guilty of moral turpitude, (3) the satisfaction of the Director on the basis of such summary enquiry that 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 cause 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."
14. The Apex Court further held:
"It is true that the Court in Avinash Nagra has made the following observations:
"In our considered view, the Director has correctly taken the decision not to conduct any enquiry exposing the students and modesty of the girl and to terminate the services of the appellant by giving one month's salary and allowances in lieu of notice as he is a temporary employee under probation."
However, the Court goes on to say:
"In the circumstances, it is very hazardous to expose the young girls to tardy process of cross-examination."
The last observation was not based on the fact that the employee in that case was a probationer at all. Indeed the embarrassment to the girl student would hardly be different merely because the alleged offender is a permanent employee. Besides under Article 311(2) itself an enquiry may be dispensed with under certain circumstances. We have no doubt that those circumstances may include a situation as indicated in the rule of the institution as mentioned hereinbefore.
The High Court particularly erred in requiring that such a charge needed to be proved beyond all reasonable doubt. This is against the principles governing a departmental enquiry in general and the unchallenged rules of the appellant institution in particular. The reason sought to be given by the Director for dispensing with the enquiry has been held by the High Court to be "unconstitutional and not legal". This finding is also unacceptable since the Director has used the language of the rule. Furthermore having regard to the approval of the rule in question in the decision of Avinash Nagra (supra), it was not open to the High Court to have come to the conclusion that the reason given by the Director for dispensing with the enquiry was unconstitutional or illegal.
In the circumstances, we allow the writ petition and set aside the order of the High Court. However having regard to submissions of the learned Counsel appearing of the respondent, we grant the respondent an opportunity to tender his unconditional resignation from the Institution with effect from the date of the order of termination. If such letter of resignation is given will accept it. After the acceptance of the resignation the order of termination will be withdrawn by the appellant."
15. The applicant in V.A. Samy v. UOI had approached the Kerala High Court for a writ of Mandamus directing the second respondent Commissioner KVS to conduct an enquiry and pass appropriate orders after affording an opportunity of being heard. He also sought a declaration that Article 81(b) is arbitrary, unconstitutional & violative of Articles 14 & 311(2) of Constitution. Even if Article 81(b) is valid the principle prescribed has not been followed.
The High Court held:
"The contention of learned Counsel for the petitioner that Article 81(b) is unconstitutional and violative of Article 14 can not be sustained. Article 81(b) has been incorporated in the Education Code with a purpose. It is highly improbable that a minor girl student will raise a complaint against a teacher of immoral sexual behaviour, unless she has been subjected to the said misbehaviour by the teacher. Petitioner has got a case that the case has been cooked up against him. There is no material to establish the said contention. In fact, there is considerable evidence in this case to believe that the charges levelled against the petitioner are true. Article 81(b) has been framed on the lines of Rule 19(ii) of CCS (CCA) Rules and Article 311(2) (b) of the Constitution of India, wherein it provided that the regular enquiry can be waived where the Disciplinary Authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to hold a regular enquiry. It is in view of the legal principle envisaged by the framers of the Constitution that Article 81(b) has been framed. There is no illegality in the said provision. Sufficient safeguard has already been made in the said provision. The said provision can be invoked only in cases where the Commissioner is satisfied after conducting the enquiry. In the instant case, the Commissioner has conducted a preliminary enquiry and collected materials. It is on the basis of the said materials that he has invoked Article 81(b). There is no illegality in the said procedure. Therefore I find no reason to interfere with the order passed by the Commissioner. Original Petition is therefore dismissed."
16. The applicant in OA 760/1999 before Madras Bench had challenged the order on the ground that the regular enquiry had not been conducted and that he had not been given an opportunity to cross examine the witnesses. The respondents KVS contended that the enquiry had been conducted in accordance with Rule 81(b).
The applicants had also relied on the decision of OA 304/1999 decided by Madras Bench and decision of Jaipur Bench in Khemchand Yadav's case. The Tribunal noted that complainant in OA 304/1999 was the father of the girl and the words stated in that complaint can not be construed as a moral conduct. The facts are distinguishable. The decision of Jaipur Bench was distinguished by stating that it deals with scope of 81(b).
Having regard to the decisions in Avinash Nagra's case S.K. Dash and Ors. v. Biswajit Patnaik, 1996 Supp(1) SCC 434, M.J. Sivani and Ors. v. State of Karnataka, regarding assigning of reasons by administrative authorities and the enquiry held in the case, the Tribunal concluded:
"13. In view of the above discussion, we are of the view that the respondents have justified in not holding a regular enquiry and the principles of natural justice are not violated, No other point was argued, in the result the OA is dismissed. No order as to costs.
17. Para-8 of the judgment of Ernakulam Bench is as follows:
"8. Sri Sugunapalan argued that before dispensing with the inquiry as required under the rules before imposing a major penalty the Commissioner should have given the applicant an opportunity to show cause why such an enquiry should not be dispensed with and that the failure to do so amounts to negation of the principles of natural justice. A similar argument was addressed before the Hon'ble Supreme Court in Union of India and Anr. v. Tulsiram Patel, . The Court in paragraph 136 of the celebrated judgment observed as follows:
136. It was next submitted that though clause (b) of the second proviso excludes an inquiry into the charges made against a Government servant, it does not exclude an inquiry preceding it, namely, an inquiry into whether the disciplinary inquiry should be dispensed with or not, and that in such a preliminary inquiry the Government servant should be given an opportunity of a hearing by issuing to him a notice to show cause why the inquiry should not be dispensed with so as to enable him to satisfy the Disciplinary Authority that it would be reasonably practicable to hold the inquiry. This argument is illogical and is a contradiction in terms. If an inquiry into the charges against a Government servant is not reasonably practicable, it stands to reason that an inquiry into the question whether the disciplinary inquiry should be dispensed with or not is equally not reasonably practicable."
The principle enunciated in the above ruling is applicable to the facts of this case also. Shri Sugunapalan invited our attention to the ruling of the Apex Court in Jaswant Singh v. State of Punjab and Ors., and Chief Security Officer and Ors. v. Singasan Rabi Das wherein it was held that when there total absence of sufficient material, the enquiry should not be dispensed with. The facts of the case under citation have no comparison to the facts of the case. In this case, the Commissioner has dispensed with the enquiry invoking the Provisions of Article 81(b) of the Education Code after being satisfied from the report and the other materials placed before him that the applicant was prima facie guilty of moral turpitude involving sexual offence or exhibition of immoral sexual behaviour towards girl students and that the holding of a regular enquiry would cause serious embarrassment to the girl students and their guardians and also would vitiate the atmosphere of the school, we do no find any infirmity in the decision taken by the Commissioner to dispense with the enquiry and terminating the services of the applicant by the impugned order. Subjecting the girl students to cross-examination etc. would result in serious embarrassment to them and the conclusion of the Commissioner that, that would pollute and vitiate the atmosphere can not be held perverse.
18. The applicant in the OA 81/2002 before the Calcutta Bench had challenged the virus of Rule 81(b) and had contended that in view of para 130 of Constitution Bench judgment in Tulsiram Patel's case and the decision in Jaswant Singh's case the enquiry can not be lightly dispensed with. The Bench noted that the Apex Court has examined the legality and validity of such provision in Abinash Nagra v. Navodaya Vidyalaya Samiti (supra) and has upheld the same. It dismissed the OA.
19. The learned Counsel for the applicant has argued that Article 81(b) of KVS Code is violative of Articles 14, 16 & 311 of the Constitution.
20. The first important question for consideration is as to whether Article 311 is attracted in that case of employees of KVS. We note that KVS is a society registered under the Society Registration Act and has been notified under Section 14(2) of the A.T. Act.
21. A Constitution Bench of the Apex Court in Sabhajit Tewary v. Union of India, has quoted with approval the earlier judgments that employees of corporation, which may be state within the meaning of Article 12 are not entitled to protection of Article 311. The Apex Court in the case of Dr. Gurjeewan Garewal (Mrs.) v. Dr. Sumitra Dash (Mrs.) and Anr., 2004 SCC (L&S) 747 : 2005(1) SLJ 24 (SC) has held as follows:
"Section 4 of the Post Graduate Institute of Medical Education and Research Chandigarh Act, 1996 says that PGIMER is a "body corporate which is having a perpetual succession and a common seal with power." This clearly provides that PGIMER is a separate entity in itself. Admittedly, the employees of any authority which is a legal entity separate from the State, can not claim to be holders of civil posts under the State in order to attract the protection of Article 311. There is also no master and servant relationship between the State and an employee of PGIMER, which is a separate legal entity in itself. It is a settled position that a person can not be said to be to have the status of holding a "civil post" under the State merely because his salary is paid from the State fund or that the State exercises a certain amount of control over the post. The PGIMER Act might have provided for some control over the institution but this does not mean that the same is a State for the purpose of Article since the same can be claimed only by the members of a civil service of the Union or of all-India service or of a civil service of a State or by persons who hold a civil post under the Union or a State. PGIMER can not be treated as a "State" for the purpose of Article 311 and the employees therein are not holding any "civil post". In result, the 1st respondent is not holding a "civil post" and she can not claim the guard of Article 311."
The Apex Court in Director Navodaya Vidyalaya Samiti v. Babban Pd. Yadav has held that Article 311(2) is not attracted in the case of Navodaya Vidyalaya Samiti.
It is clear from these decisions that protection of Article 311 will not be available to employee of KVS.
22. The learned Counsel for the applicant has relied on the decisions of Apex Court in Jaswant Singh's case, Kaul's case and Ajay Kumar's case.
23. The decision in Kaul's case has been given in the context of Article 311(2)(c) and is not relevant. The decision in Jaswant Singh's case has been considered in the decision in Ernakulam Bench and distinguished. Ajay Kumar's case is also on the impracticability of holding the enquiry. It is clearly distinguishable.
24. The Jaipur Bench in Khemchand Yadav while allowing the OA has not considered the Apex Court decision in Avinash Nagra or Director Navodaya Vidyalaya Samiti v. Babban Prasad. It has also not taken note of Kerala High Court decision of 1995. There is no discussion as to whether Rule 81(b) of KVS is ultra vires. Thus that decision can not have any binding value.
25. The Apex Court in Director Navodaya Vidyalaya Samiti v. Babban Prasad Yadav, para 14 above, have in view of the observations "In the circumstances, it is very hazardous to expose the young girls to tardy process of cross-examination" made in Avinash Nagra's case", stated that they have no doubt that situation as indicated in the rule of the institution is a circumstance referred to under Article 311(2) of the Constitution. They have also slated that the rule has been approved in the said case. The Kerala High Court has also upheld the validity. In view of what has been discussed above we are of the view that challenge to the virus on the ground of waiving of full fledged departmental enquiry is not well founded.
26. The rule only provides for termination of service if the employee is found guilty. The rule has, however, not been challenged on the ground of proportionality of punishment. A 4 Judges Bench of the Apex Court in Anant Mills v. State of Gujarat, has held:
"20. There is a presumption of the constitutional validity of a statutory provision. In case any party assails the validity of any provision on the ground that it is violative of Article 14 of the Constitution, it is for that party to make the necessary averments and adduce material to show discrimination violative of Article 14. No averments were made in the petitions before the High Court by the petitioners that the assessments before the coming into force of Ordinance 6 of 1969 had been made by taking into account the rent restriction provisions of the Bombay Rent Act. Paragraphs 2B and some other paragraph of petition No. 233 of 1970 before the High Court, to which our attention was invited by Mr. Tarkunde, also do not contain that averment. No material on this factual aspect was in the circumstances produced either on behalf of the petitioners or the Corporation. The High Court, as already observed, decided the matter merely on the basis of a presumption. It is, in our opinion extremely hazardous to decide the question of the constitutional validity of a provision on the basis of the supposed existence of certain facts by raising a presumption. The facts about the supposed existence of which presumption was raised by the High Court were of such a nature that a definite averment could have been made in respect of them and concrete material could have been produced in support of their existence or non-existence. Presumption are resorted to when the matter does not admit of direct proof or when there is some practical difficulty to produce evidence to prove a particular fact. When however the fact to be established is of such a nature that direct evidence about its existence or non-existence would be available the proper course is to have the direct evidence rather than to decide the matter by resort to presumption. A pronoun cement about the constitutional validity of a statutory provision affects not only the parties before the Court, but all other parties who may be affected by the impugned provision. There would, therefore, be inherent risk in striking down an impugned provision without having the complete factual data and full material before the Court. It was therefore, in our opinion, essential for the High Court to ascertain and find out the correct factual position before recording a finding that the impugned provision is violative of Article 14. The fact that the High Court acted on an incorrect assumption is also borne out by the material which has been adduced before us in the writ petitions filed under Article 32 of the Constitution."
In view of the above we are not expressing any view on this question.
27. A 3 Judges Bench of the Apex Court in Prabodh Verma v. State of U.P., has amongst other held:
"Where it is the petitioner's contention that an Act or Ordinance is unconstitutional or void the proper relief for the petitioner to ask is a declaration to that effect and if it is necessary, or thought necessary to ask for a consequential relief, to ask for a writ of mandamus of a writ in the nature of mandamus or a direction, order or injunction restraining the concerned State and its officers from enforcing or giving effect to the provisions of that Act or Ordinance. Hence, where a writ of certiorari was asked for while challenging the constitutional validity of an ordinance, it was held, that the High Court ought not to have proceeded to hear and dispose of the writ petition without insisting upon the petitioners amending the said writ petition and praying for proper relief."
28. The applicant has not sought the relief of quashing down of this rule as unconstitutional. In view of above discussions we hold that challenge to vires of Rule 81(b) fails.
29. Coming to the facts of the case we find that one Manisha Hirabhai Ninama had complained about the incident. An FIR was also lodged pursuant to which the applicant was arrested and later enlarged on bail. The Zonal SC/ST association have also complained. Initially principal KV Surat has conducted an enquiry. Thereafter the education officer of Ahmedabad Region Ms. Kashyap had conducted an enquiry. Some of the questions asked of the applicant and reply given thereto are as follows:
Q. Do you know what is stated by Manisha or by her father for you? if yes, How?
A. I don't known what is stated by Manisha and by her father and I don't know the full details of police FIR.
Q. Whether your principal has told anything?
A. No. Q. Whether any other person has told?
A. The reporter of Times of India had come in Vidhyalaya and he called me and made some false allegations against me.
Q. Which were the allegations?
A. He alleged sexual harassment with Manisha.
Q. What was your answer?
A. I replied that all allegations are false and afterwards I went to office.
Q. You agreed which was in the paper in which it was written that you had done sexual harassment?
A. I have not done any sexual harassment and I have not accepted the same also.
Q. If it is true why you have not made your counter statement in the paper?
A. Next day I had to go to Police Station & Court. Since then I am under suspension.
Q. Why small aged girl like Manisha will give statement of sexual statement against you? Why she had not given statement for any other teacher?
A. I could not understand why Manisha is giving such statement.
Q. As it is published in the paper that you have asked to editor that you don't published this and you will be transfer and go away?
A. No such talk has been taken place with editor.
Q. Whether any complaint has been made against you for a girl for any previous year.
A. No any complaint has been made.
Q. Have you told anything about Manisha to your colleagues?
A. No. Q. Have you pulled your chain of your paint (sic) before Manisha or remove her scart (sic).
A. No. The order of Commissioner KVS indicates that the report of Times of India is dated 28.7.2000. In reply to the question as to why he has not made a counter statement in the paper, the applicant has stated that he had gone to the police station & Court on the next date and was thereafter under suspension. The education officer had recorded his statement on 22.8.2000. It is accordingly reasonable to conclude that the applicant was aware of the background at the time of enquiry.
30. We note that the following conditions have to be satisfied for exercise of the power (1) Holding of a summary enquiry (2) Finding that employee was guilty of moral turpitude (3) Satisfaction of director that charged officer was prima facie guilty (4) Satisfaction of Director that it was not possible to hold the enquiry & (5) Recording of reasons in writing.
31. We find from the orders of Appellate Authority that a preliminary enquiry was held in which statements of victim girl, her father, fellow students was recorded and the education officer came to the conclusion that the applicant was prima facie guilty. With this the Commissioner KVS has concurred.
32. Commissioner KVS has further held that it will not be proper to hold the enquiry. The applicant in his appeal has raised the question that the victim girl in any case will be appearing as a police witness. This aspect is not specifically commented in the Appellate Authority's order. But we note that another girl student had suddenly appeared at the time of incident & she was examined. Another girl student had come forward to complaint of similar harassment in the past. Thus their interest had also to be safeguarded.
33. We accordingly find to fault with the orders terminating the services and the order of Appellate Authority upholding the same.
34. The OA is accordingly devoid of merits. It is dismissed. No costs.