Central Administrative Tribunal - Ernakulam
Moses Packiamony vs Union Of India on 8 March, 2017
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/00080/2015
Wednesday, this the 8th day of March, 2017
CORAM:
Hon'ble Mr. Justice N.K. Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
Moses Packiamony, aged 55 years,
S/o. P. Ashivatham, Physical Education,
Teacher (Terminated), Jawahar Navodaya
Vidyalaya (JNV), Extension Training Center,
Kottarakara, Residing at 1/180, South Thamaraikulam,
Kanyakumari District, Tamil Nadu - 629 701. ... Applicant
(By Advocate : Mr. K. Gopalakrishna Kurup, Sr.
Mr. B. Harish Kumar)
Versus
1. Union of India, represented by the Secretary,
Ministry of Human Resources Development,
Department of School Education and Literary,
Sasthri Bhavan, New Delhi - 110 001.
2. The Commissioner, Navodaya Vidyalaya Samithi,
B-15, Institutional Area, Sector 62,
Noida, Uttar Pradesh - 201 307.
3. The Deputy Commissioner, Navodaya Vidyalaya
Samithi, Hyderabad Region, H. No. 1-1013, S.D. Road,
Secunderabad, Andra Pradesh - 500 003.
4. The Principal, Jawahar Navodaya Vidyalaya (JNV),
Exension Training Center, Kottarakara,
Kollam - 691 531. ... Respondents
(By Advocate : Mr. Millu Dandapani)
This application having been finally heard on 13.2.2017, the Tribunal
on 08.03.2017 delivered the following:
ORDER
Hon'ble Mr. Justice N.K. Balakrishnan, Judicial Member -
This Original Application has been filed seeking quashment of Annexure A7 termination order and Annexure A11 the order of the appellate authority and to direct the respondents to revoke the termination order and reinstate the applicant in service with consequential benefits.
2. The brief facts necessary for the case as stated by the applicant is as follows:
The applicant was appointed as Physical Education Teacher in Jawahar Navodaya Vidhyalaya on 25.2.1993. While he was working in JNV, Kollam, alleging sexual misbehaviour towards a girl student, he was suspended and thereafter terminated from service. The applicant was not given opportunity to defend his case properly and as such the orders are illegal and liable to be interfered with. No proper inquiry was conducted in the matter as contemplated under CCS (CCA) Rules. It is stated in Annexure A7 that it is not practicable to hold a regular inquiry as provided under CCS (CCA) Rules, and the same would cause hardship to the complainant. Thus they conducted a summary trial in accordance with the notification dated 20.12.1993 without conducting proper inquiry. It is illegal and against CCS (CCA) Rules. Executive orders cannot supplant the statutory rules. A summary inquiry alone was conducted before issuing the termination order, though the alleged charges framed against the applicant is of serious nature. The inquiry was conducted without furnishing a copy of the complaint, the alleged supporting documents of the witnesses and copy of the charge framed against him and without giving him an opportunity to prove his innocence and to defend the charges framed against him. The action of the inquiry officer in preparing the report without supplying relevant documents to the applicant resulted in miscarriage of justice. Hence, the inquiry is vitiated by malafides and so Annexure A7 termination order is in violation of principles of natural justice and is bad in law. The termination order is against the law declared by the Hon'ble Supreme Court in Union of India v. Tulsiram Patel - AIR 1985 SC 1416. There was also non-compliance of the principles laid down in the decision in Managing Director, ECIL v. B. Karunakar - AIR 1994 SC 1074. Annexure A6 notification is unsustainable and is in violation of the fundamental right of the applicant enshrined under Articles 14, 16 and 21 of the Constitution of India. Alleging misbehaviour towards a girl student, the applicant was terminated from service without issuing a copy of the complaint, memo of charges and also without giving him an opportunity to prove his innocence. Even assuming that the summary inquiry had been done as provided under Annexure A6 the procedure should have been adopted but the procedure adopted by the respondents culminating in Annexure A7 and Annexure A12 orders are arbitrary, illegal and in violation of Article 14 of the Constitution. What is contemplated is only an expedited inquiry accomplished through simplified procedure without the formalities attached to an elaborate or regular inquiry. A summary inquiry is gathering of evidence by way of statement from the complaint and/or the witnesses and making available the same in the form of a report along with the charge to the concerned employee. No process of collecting evidence and assessing its effect can be called an inquiry either regular or summary unless the person against whom it is held is permitted to participate in it or at least he is given an opportunity to deny the charges or show cause against the material proposed to be used against him. Summary inquiry does not dispense with the need to give an opportunity to deny the charge and have his say in regard to the evidence. The inquiry conducted against the applicant was merely collecting statements from the students or parents or witnesses. That does not amount to a summary inquiry; it can at the most be termed as a preliminary investigation. The charge against the applicant was not made known to him in a proper manner. He was never given an opportunity to deny the charge and was not given an opportunity to show cause as to why such material or report should not be acted upon. Thus, the applicant contends that the entire procedure followed by the respondents is illegal and hence, Annexures A7 and A11 are liable to be set aside.
3. The respondents resisted the petition contending as follows:
The allegation that the Principal, JNV, Kollam has trapped the applicant is totally false. The action was initiated based on the complaint of moral turpitude on the part of the applicant involving immoral sexual behaviour towards a girl student. The girl student complained of immoral sexual behaviour by the applicant. It was at first disclosed to the house mistress whose name was mentioned in the complaint given by the victim girl. It was brought to the notice of the 4 th respondent. The victim and her parents and also the witnesses met the Principal and then the complaint was forwarded to the Samiti. It was the Samiti which proceeded against the applicant. The 4th respondent forwarded the complaint received from the girl student to the higher authorities. As per the provisions contained in the Samiti circular (Annexure A6) a summary trial was conducted at Samiti Headquarters, Noida. The applicant attended the proceedings and duly signed the daily order sheets. Therefore, the allegation that copy of the complaint and the copy of the memo of charges framed against him were not given and that no opportunity was provided to him to prove his innocence are absolutely incorrect. The applicant himself admitted in paragraph 6 of the OA that he appeared before the summary trial committee and submitted that he had not committed any misbehaviour towards the girl student as alleged and that he is innocent of the allegations levelled against him. The copy of the complaint was not given to the applicant since bringing those documents in public domain would cause serious embarrassment to the girl student and that was the reason why the copy of the complaint was not given to the applicant in reply to the RTI query. The applicant was made aware of the confidential nature of the complaint. As per Annexure A12 he was again informed that bringing the document to public may cause serious embarrassment to the girl student and her parents/guardians. The applicant was made known as to the contents of the complaint made by the girl and her mother. It was felt that it is not expedient and practicable to hold a regular inquiry under the provisions of CCS (CCA) Rules in the matter, on account of the serious embarrassment that would be caused to the concerned girl students and her parents. There is no illegality as alleged by the applicant and hence, the respondents prayed for dismissal of the OA.
4. We have heard the learned Senior counsel appearing for the applicant and learned counsel appearing for respondents. We have also gone through the pleadings and documents produced by both sides.
5. The point for consideration is whether Annexure A7 order of termination, confirmed in appeal by Annexure A11 is liable to be quashed on any of the grounds urged by the applicant ?
6. Since it was vehemently argued on behalf of the applicant that the procedure for summary inquiry was not at all followed and that there was denial of natural justice and thus the entire proceedings is to be quashed and since that plea has been stoutly denied by the learned counsel appearing for the respondents, we directed the respondents to produce the file relating to the inquiry. It was produced in a sealed cover. As can be seen from the report submitted by the Principal the alleged incident took place on 2.8.2012. It is stated that the applicant forced the victim girl against the wall and he kissed her on that day.
7. Page No. 44 of that file shows the complaint given by the victim to the Housemistress. It was given on 2.10.2012. Going by the complaint it is seen that she did not disclose this fact even to her mother lest it would spoil her life as it is likely to be spread or flashed among students and others. It appears that in September, 2012 one mentally disabled boy pulled the shirt worn by the victim. Since the boy was mentally disabled the victim and a few of her friends took it in that line. But some others had made comments and humiliated this complainant girl. It was at that time she was reminded of the shocking incident which she had experienced at the hands of the applicant. The victim then disclosed this fact to her friends. We refer those friends - witness girls as W-1, W-2 and W-3. All those three witness girls were studying in the very same class (XIth standard). It is a residential school. All those three witness girls to whom the victim divulged this incident have also given letters to the Housemistress in tune with the complaint given by the victim. Since it is a residential school she was in supervision and management of the students housed in Niligiri house of that institution (JNV, Kollam). It is seen that the complaint letters were written by those three witness girls and the victim separately in their own handwriting which appear in pages 44 to 60 (some of the pages contain the English translations of the complaint/letters in Malayalam). Page No. 61 shows the complaint given by the Housemistress of JNV, Kollam to the Principal of JNV, Kottarakkara. That complaint was given by the Housemistress on 16.10.2012.
8. It could be seen from the file that on receipt of the complaint from the victim which was supported by the letters of three witness girls, a preliminary inquiry was conducted by the Principal on 13.10.2012 at 3.15 PM as can be seen from pages Nos. 72 & 73 of the file. It is seen that on that day the victim girl and her mother and the housemistress appeared in the chamber of the Principal. From the chamber, the Principal ascertained as to the correctness of the statement given by the victim and the witness girls. It is stated in the report prepared by the Principal on 13.10.2012 (in the 2 nd page of report) as to what actually was the incident, how it happened, etc. The statement given by the victim earlier would show that the applicant was making advances towards her (the victim) but the girl did not understand at that time that the applicant did so with the evil intention. But on the fateful day when the applicant who is a Physical Education Teacher forced the applicant at the wall and kissed her, she could realise what it was. The victim girl got stunned or flabbergasted and ran away from the room. It is seen that the victim ran to the bathroom from where she wept and thereafter went to the classroom.
9. After getting the complaint from the victim and the letters from the three witness girls mentioned above the house mistress made an inquiry of her own and since she found that it is a very serious matter affecting the institution as well she lodged the complaint to the Principal on 16.10.2012. That complaint is seen in page 61 of that file. Its translation is in pages 68 &
69. Based on the said complaint the Principal issued a show cause memo to the applicant on 17.10.2012. It was acknowledged by the applicant. To that show cause memo the applicant submitted a written reply in his own handwriting on 19.10.2012 stating that the allegations are false and no such incident had taken place. It was further stated by him that he considered all the students as his children and he never misbehaved with any student. That hand written reply of the applicant is seen in page No. 71 of this file. Therefore, the argument vehemently advanced on behalf of the applicant that he was never told about the allegation made against him and that no notice was issued to him is found to be a travesty of truth. The contention that the signatures of the applicant were obtained in some papers on a day when he was called is also found to be untrue, since the explanation given by the applicant is seen to be in his own handwriting and it was signed by him on 19.10.2012. Therefore, the contention advanced by the applicant that such a written statement must have been fraudulently or clandestinely obtained by the officials of the respondents is seen to be devoid of any merit.
10. The file also shows that the victim girl was separately asked whether the complaint was given under pressure or influence of any body. She stated that the allegations were true and the complaint was not given under anybody's pressure. The witness girls were also asked to state whether the allegations are true or whether they were forced to make such a statement. All of them stuck to their versions. In view of what is contained in pages 81 to 85 the contention advanced on behalf of the applicant that he was not at all asked about anything or that no notice was given to him or that no inquiry was conducted at all is found to be false. After the questions were put and answers were given by the applicant he stated in detail that he did not kiss the girl and he did not cause mental torture to the victim. He also stated that he did not touch her and he did not do anything against her. That is the further statement given by him on 26.3.2013. It is seen that a further detailed statement was also given by him on the same day when he was asked to give a brief report of the incident/complaint made by the victim girl of the XIth standard. He was asked to do it by way of his defence. It was then stated by him that the Principal JNV had some grouse against him since he had earlier questioned as to why a boy was not given admission and then the Principal got angry etc. Presumably it was in that background again the victim girl and the witnesses were asked to state whether they had given the statement/complaint under the pressure of anybody. But the victim and the witnesses were firm in their statement as to what they have earlier stated. Though the applicant wanted to wriggle out of the situation by making an allegation against the Principal that he had some exchange of words with the Principal about one year ago and so a case was foisted, he could not succeed in that attempt.
11. It is seen that on 18.4.2013 the victim girl was asked to give a further statement as to whether the complaint given by her was correct. Then also she stood by the complaint given by her on 2.10.2012 and she asserted that the allegations are true. When she was asked to say whether she was pressurized to withdraw the complaint then she stated that the applicant's wife was pressing her to withdraw the complaint. It is also stated that one Mr. T.P. Mani, Artisan of her Vidhyalaya was also pressing her to withdraw the complaint. That statement was given by her on 18.4.2013. No doubt these statements were obtained independently. But it is clear that again and again the girl had to be questioned as to the correctness of the allegation and also as to whether there was any pressure, only to make it sure that it was a genuine complaint. On 18.4.2013 the statement of the housemistress was also obtained. In the light of what have been stated above the argument vehemently advanced on behalf of the applicant that no summary inquiry was conducted at all in the matter is found to be fallacious.
12. Page No. 74 of the file shows that a committee consisting of Sri. P.R. Verma, Assistant Commissioner (Acad.), NVS, Hqrs., Shri D.C. Verma, Assistant Commissioner (Estt.-III), NVS, Hqrs. and Shri T. Surya Prakash, Section Officer (Estt.-II), NVS, Hqrs. was constituted by the Commissioner, Navodaya Vidhyalaya Samiti to conduct a summary trial against the applicant herein as per the provisions of A6 [the Samiti's notification No. 14-2/93-NVS(Vig.), dated 20.12.1993]. The committee was directed to conduct the summary trial and submit its report within 30 days. The copies of the relevant documents received were furnished to the committee for the purpose of conduct of the inquiry. It is seen that on 25.3.2013 the statement of the applicant was obtained. The fact that he was a Physical Education Teacher and that he was teaching physical education for standards IX to XI was admitted by him. The victim girl and the witnesses were studying in XI standard at that time. When specific question was put to the applicant with reference to his alleged misbehaviour towards the victim in a manner not expected of a teacher of JNV and when it was put to him that he indulged in an act of moral turpitude and when he was asked to offer his comments on the same he said that he never misbehaved with the victim and that she (the victim) was like his own daughter and that he was helping the students of JNV, Kollam. When specific question was put to him with reference to the incident took place on 2.8.2012 in which the allegation was that he (the applicant) called the victim to the PT room and then he kissed her on that day (on 2.8.2012) he denied having called the victim to his room. He stated that he did not call the victim or any other girl to the sports room and that it is a small room. Again it is stated that all the boys and girls use to come to his room when he and the lady PET were inside the room. He stated that he does not know what was the reason for making such a complaint against him. So many questions were put to him regarding that incident and also regarding his behaviour and attitude towards the victim girl etc. The applicant stated that the victim girl had approached him and told her family problems. He has also stated that all the girls and boys used to treat him like a father. To some of the questions put to him he stated 'I don't know'.
13. It is a case where the committee consisting of three members mentioned earlier was constituted for the conduct of summary trial against the applicant herein, those three members after conducting summary trial on 25th & 26th March, 2013 with the applicant herein and after taking the written statement of the applicant and perusal of the same felt that in the light of the existing records that before arriving at the conclusion it was just and proper that they should hear the victim as well and hence, they sought permission to proceed to Trivandrum by air during April, 2013. That permission letter was sent on 26.3.2013. It was thereafter the members met the victim girl and others and the statement of the victim girl was recorded on 18.4.2013. It was on the same day the statement of the housemistress also was recorded.
14. As can be seen from the file it is not a case where the Principal, JNV Kollam or other officers all on a sudden took a hasty action against the applicant. A preliminary inquiry was conducted by the Principal, JNV Trivandrum and Principal, JNV Ernakulam; the victim, witnesses and the applicant were questioned and statements were recorded by them and a report was submitted on 4.1.2013 to the Commissioner, Navodaya Vidyalaya Samiti, Noida, UP. Though the applicant in his written statement denied the incident in toto the inquiry report would show that the applicant 'in front of the committee on 12.12.2012 accepted that he had kissed. . .. . . (the victim girl).' But in his written statement he stated that he had not touched or kissed her with any bad intention and he always had a fatherly affection with her and that he used to pray for her touching her head when she had any problem. Therefore, it is not a case where the members of the committee had any grouse against him or that they proceeded the matter with prejudiced or biased mind. The inquiry report which is contained in page 4 shows that besides the victim three girls (witnesses) and the housemistress were questioned and it was thereafter the applicant was questioned. They had before them the statement of six persons including that of the applicant and the victim. There is a detailed discussion of the facts concerning the incident. Of course it may be argued that since in the written statement filed by the applicant he denied having done the offending act, it is not possible to accept that he had confided with the members that he did the act. But the committee did not bank upon the so called oral confession made by the applicant but based purely on the statements given by the victim, the three witnesses, the housemistress referred to above and also of the applicant himself. It was based on such statements the committee came to the conclusion that the applicant is prima facie guilty of moral turpitude involving sexual offence towards the girl student of XIth standard.
15. Pages 76 to 91 are the relevant papers with respect to the submission of the inquiry report. The summary trial report narrates the procedure followed in the matter. It was signed by all the members namely Shri P.R. Verma, Shri D.C. Verma and T. Surya Prakash mentioned earlier. While doing so, the preliminary inquiry report earlier submitted by the Principal, JNV, Trivandrum and Principal, JNV, Ernakulam was also considered by this committee of three members. It is stated that on 25.3.2013 the applicant appeared before the committee and then the committee explained the reasons and procedures to be adopted in the summary trial and the complaint lodged by the victim girl against him. It is stated that the signatures of the applicant were obtained on each and every statement/ complaint made against him by the victim and other students of JNV, Kollam. It was further stated that during the proceedings the applicant was given a questionnaire on 19 various points. His reply was recorded below each of the questions which also forms part of the record. There is a detailed analysis of the facts and circumstances and the materials which were considered by the committee. While the members P.R. Verma and D.C. Verma came to the definite conclusion that the allegation against the applicant is true. The averment made by the applicant that it was a planned one and was made at the instance of somebody else was found to be totally untrue. Though the 3rd member T. Surya Prakash, stated that the b� available evidence is insufficient to arrive at a conclusionb� he did not say that the conclusion reached by the other two members is incorrect. Therefore, though the 3rd member found that the evidence is insufficient that is no reason to hold that the conclusion arrived at by the other two members is incorrect or unsustainable.
16. It appears, the 3rd member who was a Section Officer (Admin.) might have approached the issue as if it is a criminal trial. Any way the 3 rd member did not disagree with the conclusion arrived at by the other two members and hence, it is only to be held that there is a concluded summary trial report against the applicant. That report is dated 7.5.2013.
17. There is a separate observation/comment made by the member Shri T. Surya Prakash. One ground projected by him was that though the incident took place on 2.8.2012 the complaint was given only on 27.9.2012 and so that member has stated that the complaint was belated 'for reasons unknown'. That statement itself would show that the said member is totally unaware of the legal and factual position. A detailed reason has been stated why she did not make a complaint then and there. One cannot forget the fact that the offending act was done by the teacher of the school against a student of the XIth standard. The trauma and mental agony that would be caused to the girl and the worry or apprehension about the consequence if she discloses to somebody else are matters which cannot be lost sight of. Even in a criminal trial for offence under Section 376 of IPC or for similar offences the law is well settled that delay in registration of FIR is not fatal to the prosecution. If that be so, it eludes comprehension how it could be said the 'reasons are unknown'. As sufficient reason was stated explaining the delay, the observation so made by that member is factually incorrect also. Another ground stated by him was that the applicant had earlier made a complaint against the Principal and that an inquiry was conducted against the Principal and a gent (male) staff on a love affair case etc. in August, 2012 and after that the Principal was said to have shouted against the applicant. It is important to note that such an allegation was made by the applicant for the first time in March, 2013. His statements were recorded earlier. The victim and witness girls have repeatedly given statements to the effect that the allegations so made by them are true and they stuck to the version. Several times they were questioned to ensure whether they were giving such statements under the influence or pressure of somebody else. The allegation was that the applicant forced the victim against the wall and kissed her in the PT room. The question of seeing that incident by somebody else does not arise. It is not stated that it was done several times. Such acts are not done in such a way or at such places to be seen by others.
18. The applicant had earlier approached this Tribunal by filing OA No. 1132/2013 questioning the order of penalty imposed on him. That Original Application was disposed of by this Tribunal directing the 1 st respondent therein to consider and pass orders on Annexure A11 appeal in accordance with law. A review petition was filed which was disposed of by this Tribunal on 27.7.2013 where it was stated that the applicant should hand over Annexure A11 appeal memorandum to the competent authority for considering the same on its merit and that the applicant should be given opportunity of being heard.
19. The main ground urged by the applicant is that the inquiry was conducted without giving the copy of the complaint and copy of the statements of witnesses and copy of the charges framed against the applicant and that he was not afforded opportunity to defend the charges against him and that it was done in violation of Rule 14 of CCS (CCA) Rules. These were the grounds projected by him in the appeal memorandum submitted before the appellate authority. It appears that the appeal was disposed of on 13.11.2013 but the decision of the appellate authority was not duly communicated. Subsequent to the order passed by the Tribunal an order was passed on 2.1.2015 conveying the decision of the appellate authority dated 13.11.2013. The applicant was personally heard by the appellate authority.
20. It was contended by the applicant before the appellate authority that the allegations made against him were totally untrue and were raised as a result of animosity and politics between Tamil and Malayalam teachers and that certain teachers had conspired against him and those allegations were concocted against him to throw him out of service. That allegation was found to be without any substance and the same was rejected. The explanation offered by the applicant that his actions were misunderstood by the victim girl and the subsequent allegation made by him that it was a revengeful act as he had made certain corruption charges and malpractices against the Principal at the time of admission in the year 2011 were also gone through and considered in detail by the appellate authority. Such an allegation was made by him after the preliminary inquiry was conducted in the matter. There was no tangible material to hold that the Principal, JNV, Kollam had any grouse against him. Not only that the preliminary inquiry in this case was conducted and report was submitted by the Principal, JNV, Trivandrum and Principal, JNV, Ernakulam. That was done after ascertaining the truth from the victim girl, witnesses girls and the housemistress etc. and also after taking down the statement of the applicant. There is no case for the applicant that the Principal, JNV, Trivandrum and Principal, JNV, Ernakulam had any grouse against him. The different officers in the course of inquiry at different levels had gone through the records and arrived at the conclusion that the allegation made against the applicant is true. There was no allegation of bias or malice or anything of that sort against the two Principals mentioned above or against the Commissioner, NVS or any other authority so as to contend that the complaint against the applicant was the result of a conspiracy as alleged by the applicant.
21. Annexure A6 is the notice dated 26.2.2013 issued to the applicant. In Annexure A6 itself it was stated that the committee was constituted to conduct summary trial under the Samiti's notification No. 14-2/93-NVS (Vig.), dated 20.12.1993 to inquire into the serious charges framed against the applicant. The applicant was directed to attend the proceedings of the committee in the room of the Assistant Commissioner on 19.3.2013 at 11 AM at the place noted therein.
22. Annexure A6(2) is the notification dated 20.12.1993 just referred to above. It is just like a rule relating to the conduct of the summary inquiry etc. Rule B therein reads:
'B. Whenever the Director is Satisfied after such summary enquiry as he deems proper and practicable in the circumstances of the case, that any member of the Navodaya Vidyalaya is prime facie guilty of moral turpitude involving sexual offence or exhibition of immoral sexual behaviour towards any student, he can terminate the services of that employee by giving him one month's or three months' pay and allowances depending upon whether the guilty employee is temporary or permanent in the services of the Samiti. In such cases, procedure prescribed for holding enquiry for imposing major penalty in accordance with CCS (CCA) Rules, 1965 as applicable to the employees of Navodaya Vidyalaya Samiti, shall be dispensed with provided, that the Director is of the opinion that it is not expedient to hold regular enquiry of account of serious embarrassment to the student or his guardians or such other practical difficulties. The Director shall record in writing the reasons under which it is not reasonably practicable to hold such enquiry and he shall keep the Chairman or the Samiti informed of the circumstances leading to such termination of Services.' This is almost identical to Article 81(b) of Education Code of Kendriya Vidhyalayas.
23. There is a prayer in the Original Application to declare Annexure A6, in so far as it amends the CCS (CCA) Rules, providing for a summary inquiry is to be quashed. Though such a prayer has been made it is not stated nor could it be shown to the Tribunal as to how Annexure A6 is unconstitutional or on what ground it has to be quashed. Though Article 81
(b) of the Education Code of KVS was sought to be declared unconstitutional in certain cases no such relief was ever granted by any court, the respondents contend. Clause 'B' ofAnnexure A6 is indentical to Article 81(b) of Education Code of KVS. Article 81(b) was not quashed by any court. Hence, the same should be made applicable to Clause 'B' of Annexure A6. A reading of the provision - Clause 'B' of Annexure A6 would make it abundantly clear as to what was the rationality for incorporating such a provision in derogation of the provisions of CCS (CCA) Rules. There is no violation of Article 14 or any other provisions of the Constitution of India. Reason is well explicit in the provision itself. Hence, the relief sought to declare that provision unconstitutional is only to be turned down.
24. The learned Senior Counsel appearing for the applicant has relied upon the decision of the Karnataka High Court in Government of India & Ors. v. Dhanu S. Rathod - ILR 2002 KAR 4911. Much reliance has been placed by the learned Senior Counsel on this decision to contend that there was violation of natural justice in this case also. Article 81(b) of the Education Code mentioned above also provides that when Commissioner is satisfied after such summary enquiry as he deems proper and practicable in the circumstances of the case, that any member of the Kendriya Vidyalaya is prime facie guilty of moral turpitude involving sexual offence or exhibition of immoral sexual behaviour towards any student, he can terminate the services of that employee by giving him one month's or three months' pay and allowances according as the guilty employee is temporary or permanent in the services of the Sagathan. It states that in such cases, procedure prescribed for holding enquiry for imposing major penalty in accordance with CCS (CCA) Rules, 1965 as applicable to the employees of Kendriya Vidyalaya Sagathan, shall be dispensed with, provided the Commissioner is of the opinion that it is not expedient to hold regular enquiry on account of serious embarrassment to the student or his guardians or such other practical difficulties. It is further stated that the Commissioner shall record in writing the reasons under which it is not reasonably practicable to hold such enquiry and he shall keep the Chairman of the Sangathan informed of the circumstances leading to such termination of services. In this case also a preliminary inquiry was conducted. The Commissioner was satisfied of the necessity to conduct only a summary trial. According to the respondents the Commissioner has rightly taken the decision not to conduct any inquiry under CCS (CCA) Rules exposing the student and the modesty of the girl or the humiliation they may suffer. It would be very hazardous to expose young girls to the tardy process of cross-examination. But the learned Senior counsel for the applicant submits that though the victim or the other girls cannot be exposed to the process of cross-examination, at least the statements of the victim and the witnesses should have been provided. But on going through the file it is clear the the statement of the victim girl and the three witness girls and also of the housemistress were put to the applicant. He was made known of those statements. It is seen that the applicant had actually seen those statements and it was thereafter he submitted his statement that the allegations made therein are false.
25. The learned counsel for the respondents would submit that when the conduct of the applicant is unbecoming of a teacher much less of a loco- parentis the Commissioner was perfectly justified in dispensing with the regular inquiry under the rules and therefore, the denial of opportunity put forth by the applicant cannot be sustained at all. When the Commissioner is satisfied after summary inquiry that there was a prima facie guilt of moral turpitude involving sexual harassment or exhibition of immoral behaviour towards a girl student, under clause (B) referred to above of the notification/circular (Annexure A6) the Commissioner was perfectly within his right to terminate the service of the employee by giving him one month's or three months' pay and allowances in lieu thereof.
26. The decision of the Hon'ble Supreme Court in Avinash Nagra v. Navodhya Vidhyalaya Samiti & Ors. - 1997 (2) SCC 534 has been relied upon in this connection. It is pointed out that due safeguard has been provided; namely that the Commissioner should record reasons for his reasons not to conduct the inquiry under the rules. The confidential files produced before us shows as to the procedure followed in the matter. Specific reference was made to clause (B) of Annexe A6 referred to above. The said provision (clause 'B') was upheld by the Hon'ble Supreme Court in some of the cases mentioned therein. Therefore, it was noted that in such cases of moral turpitude or exhibition of immoral sexual behaviour procedure prescribed for holding inquiry for imposing major penalty in accordance with CCS (CCA) Rules, 1965 is inapplicable to the employee of Navodaya Vidhyalaya Samiti. Therefore, taking note of all those facts it was found that it is a fit case for summary trial and so directed to report to the competent authority to constitute a committee to conduct summary trial in respect of the allegation of immoral act against the applicant. At various levels the report was considered and ultimately it was approved and decided that it was a fit case for holding summary trial for which decision the names of the Chairman and two members was taken on 7.2.2013. Therefore, it is crystal clear that the authorities concerned have applied their minds to the seriousness of the allegation and since it is a matter involving moral turpitude or exhibition of immoral sexual behaviour towards a XIth standard girl it was found not necessary to follow the procedure prescribed under the CCS (CCA) Rules, 1965. The contention that Annexure A6 which provides for conduct of summary inquiry is violative of Articles 14 of the Constitution or that it violates the CCS (CCA) Rules, 1965 is found to be totally devoid of any merit.
27. We have perused the entire inquiry file which runs to hundreds of pages. At first the Principal called the victim girl, and the witness girls and the mother of the applicant and also the house mistress to her (Principal) chamber. The Principal conducted an inquiry to ascertain the correctness of the allegation. When she was convinced of the correctness of the allegations a preliminary inquiry was ordered to be conducted by two independent personalities namely the Principal, JNV Ernakulam and the Principal, JNV, Trivandrum who had no axe to grind in the matter and who are found to be totally unbiased and unprejudiced. It was based on the preliminary inquiry report submitted by them it was reported to the Commissioner, JNV who constituted an inquiry committee/a summary trial committee consisting of three members. The file would show that the inquiry was duly conducted by them.
28. In Dhanu S. Rathod's case (supra) the question raised was whether the ground mentioned in Article 81(b) of Education Code for dispensing with a regular inquiry (i.e. employee being found prima facie guilty of moral turpitude involving sexual offence or exhibition of immoral sexual behaviour towards any student) can be said to be a case where it is reasonably impracticable to hold a regular inquiry. It is with a view to ensure the safety and security of the girl students and to protect their modesty and prevent their unnecessary exposure at the inquiry in relation to the conduct of teachers resulting in sexual harassment, a resolution was passed prescribing a special summary procedure, in regard to complaints relating to sexual harassment which was published in the form of a notification. In Avinash Nagra's case (supra) the Supreme Court had directed the management to issue a show cause notice to the employee, conduct summary inquiry and submit a report. Pursuant thereto the management issued a show cause notice and made available the statements of the girl student and of her room mates and the attender which have already been recorded, to the applicant delinquent and after considering the entire record and explanation given by the applicant drew up a report and submitted to the court with a finding that the employee concerned was guilty of moral turpitude involving sexual harassment of the girl student. In that case furnishing the statements of witnesses to the delinquent and giving an opportunity to him to controvert the correctness thereof was considered as sufficient compliance with the requirement to give an opportunity. It was held by the Supreme Court in Avinash Nagra's case (supra) as:
'It would thus be seen that in a given situation, instead of adopting the regular procedure under the rules to terminate the services of an employee, the notification prescribes the procedure to dispense with such enquiry, subject to the conditions mentioned above. The question is whether the order terminating the services of the applicant in terms of his appointment letter is in violation of the rules or the principles of natural justice?. . .In the circumstances, it is very hazardous to expose the young girls to tortuous process of cross-examination. . ...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 rule and denial of cross-examination are legal and not vitiated by violation of the principles of natural justice.'
29. Here also, it is seen that the statement of the victim and of the witnesses were made available to the applicant and after perusal of the same he, at first gave a statement. Again when he was questioned with reference to the statements given by the victim and other witnesses he gave a statement. Thereafter, also he made a detailed statement to the notice issued. There are so many statements of the victim girl and of the witnesses and of the applicant in this case. Therefore, it can be seen that there was substantial compliance of the procedure prescribed and there was no denial of natural justice as pleaded by the applicant. There can be no doubt that summary inquiry would be adequate compliance of the principles of natural justice since clause (B) of Annexures A6 dispenses with a regular inquiry in such extraordinary circumstances where the victim girl and witnesses girls would be exposed to the danger at the hands of the applicant and as such the Samiti was bound to protect the decency, modesty and safety of the girls. It is not a case where the statements were recorded behind the back of the applicant or were never put to him during the course of inquiry.
30. The learned Senior counsel would emphasize on paragraph 18 of the judgment in Dhanu S. Rathod's case (supra) which reads as under:
'18. Article 81(b) provides for dispensing with a regular enquiry contemplated under the CCS (CCA) Rules, if after a 'summary enquiry, as he deems proper and practicable' the Commissioner is satisfied that the employee is prima facie guilty of moral turpitude involving sexual offence or exhibition of immoral sexual behaviour. But, what is a summary enquiry? A summary enquiry is an expedited enquiry accomplished through simplified procedure without the formalities attached to an elaborate or regular enquiry. It does not however mean receiving and considering a report against an employee and passing an order holding an employee guilty of a grave charge, without informing the employee what the charges are and without giving an opportunity to him to deny the charges or show cause against the prima facie findings in the report. In the context of Article 81(b), a summary enquiry is gathering of evidence by way of statements from the complainant/s and/or the witnesses and making available the same or purport thereof in the form of a report along with the charge, to the concerned employee and giving an opportunity to show cause. No process of collecting evidence and assessing its effect can be called an 'enquiry', either regular or summary, unless the person against whom it is held is permitted to participate in it or at least given an opportunity to deny the charge or show cause against the material proposed to be used against him. A preliminary enquiry is not a 'summary enquiry'. Use of the words 'summary enquiry' as he deems proper and practicable does not entitle the authority empowered to dismiss or remove an employee, to dispense with the need to give an opportunity to deny the charge or have his say in regard to evidence.' In paragraph 20 it was held by the Hon'ble High Court in the case cited supra as:
'20. The term 'summary enquiry' occurring in Article 81(b) cannot be interpreted as denying any kind of opportunity to show cause to an employee, as contended by the petitioners. Apart from the fact that such an interpretation is unwarranted by the wording of the rule, it will give room to misuse of the provision, to get rid of any employee by dubbing him to be a sexual pervert or a person guilty of moral turpitude. In this case the Commissioner at New Delhi, has passed the order of termination. He has not held a summary enquiry. He has merely acted on the report of the Assistant Commissioner based at Bangalore. The incident/s allegedly occurred in Kudremukh.
The respondent has specifically alleged mala fides against the Chairman of the local Kendriya Vidyalaya. If the Commissioner does not even hear or grant an opportunity to the employee to deny the charge or show cause in regard to evidence collected, there will be violation of Article 81(b) which requires a summary enquiry. Further, giving an opportunity to the respondent to show cause or giving him a personal hearing will in no way embarrass the students or their parents, nor will it delay the proceedings. The termination under Article 81(b) being an exception to the general rule, the requirements thereof should be strictly followed.'
31. That case is to be distinguished on facts. Here, there was process of collecting evidence and assessing it. First a regular inquriy was conducted by two independent Principals. Thereafter a committee of three members was constituted. That committee called the victim girl, witnesses and others and their statements were recorded and thereafter the applicant was also questioned. There was no denial of opportunity at all.
32. It is pointed out by the learned Senior counsel for the applicant that it was observed by the Hon'ble Karnataka High Court in Dhanu S. Rathod's case (supra) that merely collecting statements from the students or parents or witnesses does not amount to a summary inquiry but only amounts to a preliminary investigation. It is further argued that unless the charge is made known to the employee and the statements recorded or an abstract thereof is made available to the employee and is given an opportunity to deny the charge or show cause as to why such material or report should not be acted upon, the action will remain a preliminary investigation and not a summary inquiry. Here, it is seen that a memo was issued to which the applicant had submitted a reply. That show cause notice itself was issued only after a preliminary investigation and report was received from two principles of JNV, Trivandrum and JNV, Ernakulam.
33. The summary inquiry dealt with in clause (B) of Annexure A6 is akin to Article 81 (b) of Education Code of Kendriya Vidyalaya Sangathan. It is vehemently argued by the learned Senior counsel for the applicant that unless the charged officer is given an opportunity to show cause it would give room for misuse of the provision, to get rid of an employee by dubbing him as a sexual pervert or person guilty of moral turpitude. Here, the Commissioner could form such an opinion only after getting a report of investigation/inquiry conducted by Principal, JNV, Trivandrum and Principal, JNV, Ernakulam. Therefore, it is not a case where there was denial of the basic principles of natural justice. On going through the file we could see that on several occasions the statements of the victim girl and the witnesses were recorded and the applicant was also questioned regarding the same several times. The statements of the applicant were also recorded and those statements are seen in the file. Therefore, it is not a case where the allegations made by the victim girl supported by the witnesses and the housemistress were not put to the applicant or that the applicant was kept in dark. Reasonable opportunity was given to the applicant to deny the charge and also to give statements in respect of his defence. After inquiry when the constituted committee found the applicant guilty of the charges levelled against him it is not open to him to contend that there was denial opportunity.
34. It is also worthwhile to note that when show cause memo was issued to him he did not challenge the inquiry on the ground that no such inquiry can be conducted under the special provisions regarding summary inquiry contained in Annexure A6 or that there was denial of opportunity to him, etc.
35. The decision of the Hon'ble Supreme Court in Food Corporation of India & Ors. v. Sarat Chandra Goswami - (2014) 13 SCC 211 cited before us is inapplicable to the facts of this case. In that case the regulation 60(1)
(b) which dealt with the summary procedure for imposing minor penalties was considered. It was not with respect to the complaint involving moral turpitude or exhibition of immoral sexual behaviour. The procedure to be followed in such cases is totally different from a summary inquiry under Regulation 60(1)(b) referred to therein. It is argued that in any event there has to be formation of an opinion and such an opinion has to be founded on certain objective criteria and it must reflect some reason and can never be capricious or fanciful but demonstrative of application of mind. So far as the case on hand is concerned sufficient reason has been stated as to why the regular inquiry was dispensed with.
36. The decision of the Hon'ble High Court of Kerala in Sibu v. Air India Limited - 2016 (2) KLT 374 also has no application to the facts of this case since that was a case which arose under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Inquiry prescribed under Section 13 of that Act is not a preliminary inquiry but a full fledged inquiry. Detailed procedure has been prescribed in Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. That is not the case here. Therefore, the aforesaid two decisions do not come to the rescue of the applicant.
37. The learned counsel for the respondents has relied upon the decision of the Division Bench of the High Court of Rajasthan (Jaipur Bench) in Rajeev Kumar Paliwal v. Navodaya Vidyalaya Samiti & Ors., decided on 19.12.2011. According to the applicant the facts dealt with in Rajeev Kumar Paliwal's case (supra) is identical to the facts of this case. There the allegation was that the petitioner made sexual advances towards a class-VII student. Of course, there, based on the complaint FIR was registered against the petitioner therein and so he was placed under suspension. After conclusion of the inquiry his services were terminated. Departmental appeal was preferred against the order of termination. The appellate authority confirmed the order and dismissed the appeal. There it was contended that the Police after investigation found the allegation to be false and a final report to that effect was given. Yet the disciplinary authority conducted the inquiry summarily and found him guilty and the competent authority terminated his services. Aggrieved by the said order which was confirmed in appeal the petitioner moved the Tribunal. The Tribunal found no merit in the application and hence it was dismissed. It was challenging the same he approached the Hon'ble High Court. The contention that was raised by the petitioner before the High Court was that news of exhibition of immoral sexual behaviour was published in the newspaper and hence, the management conspired against him and the Principal with the aid of the girl student cooked up a false story and made him a scapegoat. The disciplinary authority drew summary proceedings and without conducting any proper inquiry punished the petitioner and imposed the penalty which according to the petitioner therein was disproportionate to the gravity of the charges levelled against him. Clause (B) referred to earlier was considered by the Hon'ble High Court. The crucial question which sprang up for consideration before the High Court was as to whether a summary inquiry by the disciplinary authority was permissible in the case of the petitioner. It was held that a bare perusal of clause (B) of the notification envisages that whenever the Director (now called as Commissioner) was satisfied after such summary inquiry as he deems proper and practicable in the circumstance of the case that any member of the JNV was prima facie guilty of moral turpitude involving sexual offence or exhibition of immoral sexual behaviour towards a student, the Commissioner could terminate the service of that employee by giving him one month's or three months' pay and allowances depending upon whether the guilty employee was temporary or permanent in the service of the Samti. It was also held that the procedure prescribed for holding inquiry for imposing major penalty in accordance with CCS (CCA( Rules, 1965 as applicable to the employees of the JNV could be dispensed with provided that the Director was of the opinion that it was not expedient to hold regular inquiry on a ground of serious embarrassment to the student, or his guardian or such other practicable difficulties. Pertaining to the same it was held that the said notification reflects that the inquiry in a manner conducted against the petitioner therein can be conducted if the Commissioner is satisfied that a regular inquiry could cause a serious embarrassment to the student or her guardians. In such cases the regular inquiry as contemplated by CCS (CCA) Rules can be dispensed with and on the basis of the summary inquiry the major penalty can be imposed on the delinquent employee. In such cases no detailed inquiry as contemplated by CCS (CCA) Rules, 1965 is required; it can be dispensed with and on the basis of the summary inquiry major penalty can be imposed on the delinquent employee. It cannot be disputed that summary inquiry would be sufficient in cases like this where allegations of immoral sexual behaviour towards a girl student are involved. The argument that has been strenuously advanced on behalf of the applicant is that so far as the case on hand is concerned no such summary inquiry has been conducted though that may be sufficient based on the allegations made mention of by the respondents. But that plea is unacceptable. There can be no doubt that a summary inquiry was conducted in this case. It can certainly be conducted in exceptional circumstances like the one delineated in this case. Therefore, it cannot be said that the disciplinary authority has committed any illegality in appointing a three member committee for conducting an inquiry. Based on the materials collected especially the statements of the victim girl and the witnesses and that of the applicant, found the applicant guilty.
38. It was argued before the Hon'ble High Court in the aforesaid Rajeev Kumar Paliwal's case (supra) relying on the decision of the Supreme Court in Surya Dev Rai v. Ram Chander Rai - (2003) 6 SCC 675 that the Court should not convert itself into a Court of appeal and indulge in re- appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. The Tribunal is not sitting in appeal over the orders passed by the disciplinary authority which was confirmed by the appellate authority. The duty of this Tribunal is only to ascertain whether the procedure for summary inquiry was followed and whether there was any denial of natural justice.
39. In view of the facts which are discernible from the file we have no hesitation to hold that the applicant was heard on many occasions and so there was no denial of justice at all. The committee and authority concerned have taken every care to see that the statement of the victim and the witnesses are obtained on several occasions to see whether they stuck on to the statements already given or whether they were dwindling or vacillating. It could be seen that those statements of the victim and witnesses girls were obtained to ensure the truthfulness of the allegation made by the victim girl.
40. Relying on the Supreme Court decisions in Babhutmal Raichand Oswal v. Laxmibai R. Tarte & Anr. - AIR 1975 SC 1297, Mohd. Yunus v. Mohd. Mustaqim - AIR 1984 SC 38, Surya Dev Rai v. Ram Chander Rai - (2003) 6 SCC 675 and Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil - (2010) 8 SCC 329, it is argued that the Court/Tribunal cannot convert the application as an appeal since this is not an appellate court and that the jurisdiction is limited and as such the Tribunal cannot interfere with the findings of fact entered by the disciplinary authority.
41. The respondents have also relied upon the decision of the High Court of Bombay in Gokul v. Union of India - (2016) 4 Bom. CR 241. That was a case of an employee of Kendriya Vidyalaya Sangathan where Article 81(b) of Education Code referred to in Dhanu S. Rathod's case (supra) was dealt with and not under CCS (CCA) Rules. The petitioner therein (the delinquent) was given an opportunity to put up his defence during the preliminary as well as summary inquiry conducted by the Principal, Kendriya Vidyalaya, Aurangabad. It was observed by the CAT, Bombay that opportunity was given to the petitioner therein to put up his defence during preliminary as well as summary inquiry. Respondent No. 2 therein terminated the services of the petitioner on the basis of the findings recorded in the preliminary and summary inquiry reports and considering all relevant documents. Ample opportunities were given to the petitioner to put up his defence during inquiries and later on action was taken against the petitioner by the disciplinary authority and appellate authority as per rules and therefore, it was contended that there was no violation of principles of natural justice or Article 14 of the Constitution of India as alleged by the petitioner therein. The decision of the Supreme Court in Avinash Nagra's case (supra) was cited by the respondent Department in that case and argued that the success of the educational process depends considerably on the teachers, for it is the teacher who has to implant aims and build the character of the students and therefore, the conduct of the teacher should be befitting with such higher responsibilities; however, the petitioner by his conduct betrayed the trust and forfeited the faith. The question was whether in such circumstances the petitioner was entitled to a full fledged inquiry as demanded by him. The decision of the Supreme Court in Navodaya Vidyalaya Samiti v. Baban Prasad Yadav - (2004) 13 SCC 568 was pressed into service and contended that when the case relates to the allegation of the teacher indulging in immoral conduct with the girl students regular inquiry is not contemplated and such case can be inquired into by the summary inquiry. The decision in Dhanu S. Rathod's case (supra) was also referred to by the High Court of Bombay in Gokul's case (supra) cited above. The Division Bench decision of the Jharkhand High Court in KVS v. State of Jharkhand - (2008) DGLS (AHC) 12063 was also referred to therein where it was held that normally in the matter of internal administration of the educational institutions with regard to the discipline and conduct of the teachers and students, the Court or the Tribunal should be very slow in interfering with such matters.
42. In Avinash Nagra's case (supra) it was also held by the Hon'ble Supreme Court as under:
'Before answering the question whether the order terminating the services of the appellant in terms of his appointment letter is in violation of the Rules or the principles of natural justice, it is necessary to consider the need for the education and the place of the teacher in that behalf. Article 45 of the Constitution enjoins the State to endeavour to provide free and compulsory education to all children, till they complete the age of 14 years. The Supreme Court has held that right to education is a fundamental right and the State is required to organise education through its agencies or private institutions in accordance with the law and the regulations or the scheme. The State has taken care of service conditions of the teacher and he owes dual fundamental duties to himself and to the society. As a member of the noble teaching profession and a citizen of India he should always be willing, self-disciplined, dedicated with integrity to remain ever a learner of knowledge, intelligently to articulate and communicate and imbibe in his students, as social duty, to impart education, to bring them up with discipline, inculcate to abjure violence and to develop scientific temper with a spirit of enquiry and reform constantly to rise to higher levels in any walk of life nurturing constitutional ideals enshrined in Article 51-A so as to make the students responsible citizens of the country. The quality, competence and character of the teacher are, therefore, most significant to mould the calibre, character and capacity of the students for successful working of democratic institutions and to sustain them in their later years of life as a responsible citizen in different responsibilities.'
43. It was observed that of late some middle class people are sending the girl children to co-educational institutions under the care of proper management and to look after the welfare and safety of the girls and therefore, greater responsibility thrust on the management of the schools and colleges to protect the young children, in particular the growing up girls, to bring them up in disciplined and dedicated pursuit of excellence. These observations made by the Supreme Court in the decision cited supra were referred to by the High Court of Bombay in Gokul's case (supra). It was held that two safeguards were provided namely that the Director/Commissioner should record reasons for his decision not to conduct an inquiry under the rules and also post with facts the information with Minister, Human Resources Department, Government of India in that behalf. There it was dealt with referring to the Education Code of Kendriya Vidyalaya Sangathan. There can be no dispute regarding the fact that the detailed inquiry under the CCS (CCA) Rules can be dispensed with and summary inquiry can be resorted to.
44. On going through the order passed by the Commissioner in this case it would admit of no doubt that the Commissioner was satisfied of the necessity to conduct summary inquiry and to dispense with a detailed inquiry under the CCS (CCA) Rules, 1965. Those reasons can be discerned from the order to that effect passed by the Commissioner. Referring to the rule it is stated that all what is required for the Court to be satisfied is that the preconditions to the exercise of power under the said Rule are fulfilled. Those preconditions are as follows:
i) holding of a summary inquiry;
ii) a finding in such summary inquiry that the charged employee was guilty of a moral turpitude;
iii) that the satisfaction of the Director (now Commissioner) on the basis of such summary inquiry that the charged officer was prima facie guilty;
iv) the satisfaction of the Director (now Commissioner) that it was not expedient to hold an inquiry on account of serious embarrassment to be caused to the student or his guardians or such other practical difficulties and finally;
v) the recording of the reasons in writing in support of the aforesaid.'
45. What is of paramount importance is the satisfaction of the Director (now Commissioner) that it was not expedient to hold an inquiry on account of serious embarrassment to be caused to the student or his guardians or such other practical difficulties and the recording of the reasons in writing in support of the aforesaid. The learned counsel for the respondents would submit that the materials placed on record would make it clear that all the conditions were duly complied with. The learned Senior Counsel for the applicant would submit that no show cause notice was issued to the applicant in this case before he was terminated.
46. The decisions of the Hon'ble Supreme Court in Tulsiram Patel's case (supra) Constitution Bench decision in B. Karunakar's case (supra) and State of U.P. & Ors. v. Saroj Kumar Sinha - (2010) 2 SCC 772 are inapplicable to the facts of this case since it is not a case where the disciplinary inquiry was conducted as per the provisions of CCS (CCA) Rules. It is only in cases where the inquiry is conducted under the CCS (CCA) Rules, the requirement of furnishing copy of the complaint or the framing of charge or furnishing of inquiry report would arise. Here, it is only a summary trial that was conducted where the charge as such is not to be framed. The applicant was informed of the contents of the compliant to which he had already replied denying the charge levelled against him. Therefore, the contention that the applicant was not at all given opportunity to deny the charge or allegations is found to be incorrect.
47. The contention that Annexure A6 the scheme or regulation is against Article 311(2) of the Constitution also cannot be countenanced since Annexure A6 happened to be issued as it was found that it is not practicable to hold a regular inquiry as it would cause hardship to the complainant/victim girl and her parents. If a copy of the complaint as such is given to the delinquent then the chances of it getting published tarnishing the girl and the entire family cannot be ruled out. It was bearing in mind such consequences affecting the victim girl and parents the necessity of holding detailed inquiry was dispensed with. When detailed inquiry was dispensed with the question of framing a regular charge does not arise. What is required is whether the applicant is put to notice of the allegations contained in the compliant. That was done. He filed a statement refuting those allegations. Therefore, it is not a case where the applicant was unaware of the complaint/accusation against him. The contention that he should have been allowed to be present at the time when the statements of the complainant and witnesses (girls) and the housemistress were examined also cannot be accepted since it would be practically impossible for the girls to give such statements in the presence of their teacher. That would be the case with respect to the examination of housemistress as well. The question is whether the applicant was told as to what was the allegation made against him by the victim girl and the witnesses. The applicant was made known of the same and he gave a statement when questions were put to him with respect to the same. The contention that if an opportunity had been given to the applicant to show cause and if he had been given a personal hearing that would not have embarrassed the students or their parents is also a misplaced plea, the learned counsel for the respondents submits. Opportunity was given to the applicant. He gave his statement and a further statement was also given. The earlier statement was given in his mother-tongue (Tamil), the translation of which is found in page 12. Questions were supplied to him to which he gave answers. A further statement was given. Therefore, these are factors which would negative the plea raised by the applicant that there was denial of opportunity.
48. The only other point that survives for consideration is whether the non-furnishing of the inquiry report to the applicant would render the order passed by the respondents terminating the services of the applicant illegal or unsustainable. As has been stated earlier requirements for conducting a summary inquiry are seen fully complied with. It is also clear that there was justifiable reason for the Commissioner to form an opinion as to the necessity of holding the summary inquiry dispensing with the inquiry under the CCS (CCA) Rules. Therefore, once that satisfaction has been arrived at based on the materials placed before the Commissioner and since the inquiry was not conducted under the CCS (CCA) Rules, the requirement of furnishing of the inquiry report to the delinquent cannot be projected as a ground to contend that the impugned order is liable to be set aside. The furnishing of the inquiry report would arise only in a case where the inquiry is conducted under the CCS (CCA) Rules, the learned counsel for the respondents submits. It is further submitted by the learned counsel for the respondents that once it is found that there were sufficient materials for the Commissioner to take a decision under clause (B) of Annexure A6 then the non-furnishing of the inquiry report, as is being done in an inquiry conducted under CCS (CCA) Rules, will be of no avail to the applicant. The plea of natural justice cannot be stretched too far so as to contend that the proceedings initiated and action taken is pursuant to such a summary inquiry conducted under clause (B) of Annexure A6 should be set at naught. Even though the report of the summary inquiry committee is not seen furnished to the applicant, that will not come to the rescue of the applicant since the applicant was made known as to the accusations against him and also about the statements/allegations made by the complaint/victim girl and also about the statements given by the witness girls, house mistresses etc. Therefore, we are not inclined to accept the plea that there was denial of opportunity due to the non-furnishing of the report of the summary inquiry committee.
49. In the appeal filed by the applicant the applicant was heard personally and it was only thereafter the appeal was disposed of. The appellate authority concurred with the view taken by the disciplinary authority. Considering the gravity of the accusation levelled against the applicant, the penalty of termination from service imposed on the applicant cannot be found to be shockingly disproportionate. As such we find no reason to interfere with the impugned orders, Annexures A7 and A11.
50. In the result this Original Application is dismissed. No order as to costs.
(P. GOPINATH) (N.K. BALAKRISHNAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER ''SA''