Central Administrative Tribunal - Allahabad
Shobha Ram Tripathi vs Navodya Vidyalaya Sanghathan on 22 August, 2024
RESERVED ON 14.8.2024.
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Dated: This the 22nd day of August 2024
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Original Application No. 1068 of 2013
Shobha Ram Tripathi aged about 56 years S/o Late Shri Ram Adhar
Tripthi R/o Village Pahinti, Post Saya, District Ambedkar Nagar.
...........Applicant
By Adv: Shri Ram Asrey yadav/Shri Nand Lal Yadav/Sri R.A.
Maurya
VERSUS
1. Union of India through Secretary Ministry of Human
Resources Development Department of Education, Shastri
Bhawan, New Delhi.
2. The Navodaya Vidyalaya Samiti, 301-C, Shastri Bhawan, New
Delhi through its Chairman.
3. The Commissioner, Navodaya Vidyalaya Samiti B-15,
Institution Area, G.B. Nagar, Sector - 62, Noida (U.P) 201309.
...............Respondents
By Adv: Shri Vinod Mishra
ORDER
Justice Om Prakash VII, Member (J) The present O.A has been filed by the applicant under section 19 of the Administrative Tribunal Act, 1985 seeking following reliefs:-
"(i) To quash the impugned order of punishment dated 12.09.2003 contained letter No. F 9-II/2003-NVS (Estt) issued by the respondent NO. 3 along with appellate orders dated 19.02.2004 and revisional MANISH 2024.08.22 KUMAR 13:55:36 SRIVASTAV +05'30' A 2 order dated 14.05.2004 and further appellate order dated 28.03.2013 as contained in Annexure No. A-1 to A-4 respectively to this OA.
(ii) to direct the respondents to reinstate the applicant in service on the post of trained graduate teacher (Hindi) and to allow him to continue in service along with all the consequential benefits of service including the arrears of salary.
(iii) Such other order or direction which this Hon'ble Tribunal deem fit and proper in the facts and circumstances of the case in favour of the applicant in the applicants interest of justice including an order as to costs".
2. The brief facts of the case are that applicant was appointed on 13.08.1988 as Trained Graduate Teacher (Hindi) in Navodaya Vidyalaya Samiti (in short N.V.S.). He was permanently absorbed in the NVS vide letter dated 1.11.1991. Applicant was transferred and was posted in various NVS wherein he has always given outstanding performance. During the service period, the applicant was transferred to J.N.V Pawarkheda Hosangabad (M.P) in the year 1995 wherein also his work and performance were found excellent. Due to honour and appreciation awarded to the applicant for his excellent performance, his colleague staff of the school at Hosangabad developed jealousy and prejudice against the applicant and accordingly, they started to cause harassment and mental torture of the applicant and making frivolous and false complaints against him. Due to connivance of Ms. Meena Srivastava and the vice Principal of the school, a false and fabricated complaint from the girls student were filed against the applicant. Since the allegation was false due to which no FIR was lodged with the police. On the aforesaid complaint, the applicant was transferred on administrative ground from J.N.V. Pawarkheda to J.N.V. Barsoor (Bastar) in October 2002. Later-on he was transferred to J.N.V Rangia Assam in July 2003 and he joined there on 01.07.2003 without any objection. Due to collusion of Ms. Meena Srivastava and Smt. Zareena Orreshi, the Deputy Director Regional Office Bhopal took a decision to conduct a summary enquiry against the applicant upon the aforesaid alleged complaint of sexual harassment. In pursuance of summary enquiry, applicant was directed to appear before the inquiry officer and give his explanation in writing. Applicant submitted his written explanation on 05.03.2003 mentioning therein all the facts and MANISH 2024.08.22 KUMAR 13:55:36 SRIVASTAV +05'30' A 3 circumstances of the case in details. Thereafter inquiry officer did not afford any opportunity of hearing to the applicant and submitted his report in mechanical manner. Thereafter applicant was called to appear before the three member committee. On the basis of summery enquiry, Disciplinary Authority in exercise of powers conferred under the provisions of notification dated 20.12.1993 of N.V.S. terminated the services of the applicant vide order dated 12.09.2003 with the stipulation that applicant would be paid pay and allowances for one month as admissible under the rules in lieu of the notice period. An appeal dated 30.10.2003 against the impugned termination order has been filed, which was dismissed by order dated 19.02.2004. Aggrieved against the impugned termination order and appellate order applicant filed OA No. 766 of 2005 before this Tribunal which has been disposed of vide order dated 28.09.2012 directing the respondents to reconsider the appeal of the applicant and pass a reasoned and speaking order. In compliance of direction of the Tribunal, appellate authority disposed of the appeal by passing a fresh order. All these orders are assailed in this OA.
3. Per contra, the respondents have resisted the claim of the applicant by filing a detailed Counter Affidavit wherein they have stated that on the basis of report of summery inquiry officer, the Disciplinary authority has come to a conclusion that the applicant was prima facie guilty of moral turpitude. An enquiry was duly conducted and thereafter it came to the conclusion that the applicant was found guilty of immoral sexual behavior namely trying to outrage the modesty of girl students. Thereafter N.V.S. formed a three Members Committee, who enquired into the issue and submitted his report. It is also submitted in the counter affidavit that the Commissioner, Navodaya Vidyalaya Samiti had recorded the reasons for dispensing with the regular enquiry. N.V.S. being an autonomous organization has framed its own rules for proper running and functioning of the organization. Hence, in so far as the action that has been taken by the NVS against the applicant on the basis of above enquiry do not run contrary to the Article 311 of the Constitution of India in as much as MANISH 2024.08.22 KUMAR 13:55:36 SRIVASTAV +05'30' A 4 the employees of the NVS are not the employees of Government of India. The employees of the NVS governed by their own Rules and they have no statutory force as contemplated under the proviso to the Article 309 of the Constitution of India. It is also stated in the counter affidavit that the rule under which the order of termination was passed against the applicant as contained in notification dated 20.12.1993 was necessitated in the interest of the organization because the applicant spoiled the atmosphere of the co- educational residential Jawahar Navodaya Vidyalaya, District Hoshangbad (MP) where students are admitted to stay in the hostels. They have to be taken care of by the staff members with utmost care so that the interest of the students is protected. The applicant exploited this situation and made sexual advances towards the girl students, who made complaint about the behaviour of the applicant to the appropriate authorities in writing and on the basis of that a summary enquiry was conducted at the Navodaya Vidyalaya Samiti, Hqrs., New Delhi on 01.09.2003 wherein full opportunity was given to the applicant to defend his case. It was established during the summary enquiry that on the basis of the documentary evidences adduced during the summary inquiry, material on record and a careful analysis of the entire proceedings the committee was of the view that the applicant is guilty of exhibition of immoral sexual behavior with the girl student of Jawahar Navodaya Vidyalaya, Hosangabad (MP), action against the applicant was taken in terms of the provisions/rules dealing with the cases of moral turpitude. Thus, in the facts and circumstances of the case, the Commissioner, NVS took into account the material placed before him and he was satisfied that the procedure of holding regular departmental enquiry was not expedient in the instant case as it would cause serious embarrassment to the concerned minor girl students and their guardians and as such holding the regular enquiry was dispensed with. Since the applicant was guilty of immoral sexual behavior towards th e girls by the Committee, hence his continuance in a residential institution like JNV was menace to the safety and security of the students.
MANISH 2024.08.22 KUMAR 13:55:36 SRIVASTAV +05'30' A 5
4. We have heard Sri Ram Asrey Yadav, learned counsel for the applicant and Shri Vinod Mishra, learned counsel for the respondents and perused the record.
5. Submission of the learned counsel for the applicant is that the entire action of the respondents in terminating the services of the applicant is in violation of Article 311 of Constitution of India. Learned counsel further submitted that no opportunity was granted to the applicant to cross examine the teachers and students whose statements were recorded in the enquiry report. Learned counsel also submitted that disciplinary authority failed to consider that complainants, who was staying under the control of applicant was having malafide intentions against the applicant. It is also submitted that even the applicant was not afforded any opportunity to explain the things nor his statement was recorded and he was only made to sit idle by the Inquiry Committee, therefore, the same is in violation of principles of natural justice.
6. Learned counsel for the applicant further contended that impugned termination order shows that the respondent NO. 3 has been failed to record any such reason to dispense with the regular enquiry thus impugned order cannot be sustained in the eyes of law. Learned counsel for the applicant further contended that enquiry officer did not issue any show cause notice asking explanation to the applicant for imposing the penalty of termination from service. Learned counsel for the applicant also contended that applicant has been falsely implicated in the matter on the basis of false complaint made by some girl students in undue influence of some teachers due to which no FIR has been lodged with the police. Learned counsel for the applicant lastly contended that in the instant case there was no such reason at all to dispense with the regular enquiry particularly when the students as well as their guardian concerned themselves represented before the respondent No. 3 through their written statement for withdrawal of their complaint. Learned counsel for the applicant next argued that no chargesheet or any imputation of MANISH 2024.08.22 KUMAR 13:55:36 SRIVASTAV +05'30' A 6 charges were ever supplied to the applicant and as such he was totally ignorant of the same, as such the termination order is also in violation of principles of natural justice. Learned counsel for the applicant has relied upon the case of T. Murugan Vs. Chairman, Navodaya Vidyalaya Samiti and others reported in 2018 LawSuit (SC) 952.
7. On the other hand, learned counsel for the respondents vehemently argued that vide impugned order, services of the applicant were terminated invoking the provision of notification NO. F-14-2/93-NVS dated 20.12.1993 on the ground of moral turpitude. Learned counsel further argued that a complaint was lodged by girl students and their guardians to the Principal regarding the alleged immoral sexual behavior of applicant. A complaint has been lodged by 16 girl students of JNV Hoshangabad (M.P) for misbehaviour of applicant thereafter an enquiry was conducted against the applicant and found him guilty of sexual abuse. Learned counsel for the respondents submitted that once the Commissioner, NVS has come to a conclusion that the charged officer was prima facie guilty of moral turpitude after such enquiry as he deem fit and appropriate under the circumstances of the case, thus, formed an opinion that it is not expedient to hold a regular enquiry in accordance with the procedure laid down in Rule 14 of CCS (CCA) Rule 1965. The Commissioner can take a decision in accordance with the provision of Samiti notification dated 20.12.1993. Learned counsel for the respondents further submitted that the conduct of the applicant 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.
8. Learned counsel for the respondents further contended that applicant was given an opportunity to submit his reply to a show cause notice issued to him. The competent authority after considering the reports of inquiry committee, materials on record, the statement of victim girl, other statement of individuals recorded in the summary inquiry and the statement of applicant made before the Inquiry MANISH 2024.08.22 KUMAR 13:55:36 SRIVASTAV +05'30' A 7 Committee, a penalty of termination from service was imposed upon the applicant under the provision of notification dated 20.12.1993. Learned counsel lastly contended that N.V.S. has framed rule and regulation vide the notification dated 20.12.1993 for imposing penalties of termination from service of an employee who found guilty of immoral misbehaviour towards the students. Therefore, applicant has been rightly terminated from service as per above rules. He next contended that applicant preferred an appeal dated 29.10.2004 under Article 23 of CCS (CCA) Rules 1965 before the respondent No.2, which was considered and dismissed vide order dated 28.03.2013. Learned counsel for the respondents finally contended that proper opportunity was afforded to the applicant before passing punishment order. Learned counsel for the respondents has relied upon the following case laws:-
(i) Avinash Nagra Vs. Navodaya Vidyalaya Samiti etc. reported in 1997 (5) Supreme 306.
(ii) Moses Packiamony Vs. Union of India and others decided on 08.03.2017 in OA No. 180/00080/2015 by CAT, Ernakulam Bench.
9. We have considered the rival submissions of the learned counsel for the parties and have gone through the entire record.
10. In the case of T. Murugan (supra) relied upon by the applicant, the Hon'ble Supreme Court has held that:-
"7. We are informed that the appellant is due to retire on 12.02.2018. We are also informed that there is no Regular Pension Scheme under the Navodaya Vidyalaya Samiti. Though it would have been a case where we should have set aside the whole proceedings and directed the competent authority to start from the stage of furnishing a copy of the inquiry report and give an opportunity for objections and thereafter, hearing etc., having regard to the fact that the appellant is otherwise due to superannuate from service in the next month, we are of the view that this Court should invoke its jurisdiction under Article 142 of the Constitution of India and give a quietus to the whole litigation MANISH 2024.08.22 KUMAR 13:55:36 SRIVASTAV +05'30' A 8 between the parties, respecting the dignity and protecting the rights of all the parties.
8. Accordingly this appeal is disposed of with the following directions :-
i) On the date of termination i.e. 13.06.2003, the appellant shall be deemed to have voluntarily retired from service.
ii) Till such time, the appellant shall be deemed to be in service for all purposes. The benefits arising from such service upto 13.06.2003 shall be worked out and paid to him with simple interest at the rate of 6% per annum upto 13.06.2003 within a period of three months from today.
iii) In order to work out the relief as above, the Judgment under appeal and the other impugned orders shall stand set aside.
[9] We make it clear that this Judgment is passed in the peculiar facts and circumstances of this case and shall not be treated as a precedent"
11. In the Avinash Nagra (supra) case relied upon by the respondents, the Hon'ble Supreme Court has held as under:-
"The first question that arises for consideration is : whether the dismissal of the appellant 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 gave the statements against the appellant? The second question is : whether the High Court was right in dismissing the writ petition under the impugned order dated January 9, 1996? Indisputably, the provisions of C.C.S. (C.C.O.) Rules, 1965 of the Government of India would be applicable to the employees of Navodaya Vidyalaya. The respondent is running nation-wide co-educational specialized and prestigious schools in which 1/3rd of the students are girls. With a view to ensure safety and security to the girl students, to protect their modesty and prevent their unnecessary exposer at an enquiry in relation to the conduct of a teacher resulting in sexual harassment of the girl student etc. involving misconduct or moral turpitude, resolution prescribing special summary procedure was proposed and published by notification dated December 23, 1993, after due approval of the Executives of the respondent- Samiti"
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 girls MANISH 2024.08.22 KUMAR 13:55:36 SRIVASTAV +05'30' A 9 for tortuous 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 found not acceptable to the respondents and that he took the torch from the room, do indicate that he went to the room. The misguiding statement sent through Bharat Singh, the hostel peon, was corroborated by the statements of the students; but for the misstatement, obviously the girl would not have gone out from the room. Under those circumstances, the conduct of the appellant is unbecoming of a teacher much less a loco parentis and, therefore, dispensing with regular enquiry under the rules and denial of cross-examination are legal and not vitiated by violation of the principles of natural justice."
12. In the Moses Packiamony (supra) case relied upon by the respondents, the Hon'ble Supreme Court has held as under:-
"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 MANISH 2024.08.22 KUMAR 13:55:36 SRIVASTAV +05'30' A 10 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".
13. As per the notification dated 20.12.1993 for the Navodaya Vidyalayas Samiti special provisions have been prescribed for terminating the services of an employee who is found guilty of immoral behavior towards students. In such cases, the procedure prescribed for holding enquiry for imposing major penalty in accordance with the CCS (CCA) Rules 1965, which are ordinarily applicable to the NVS employees, need not be followed. This, however, is subject to the satisfaction of the Commissioner that in the given circumstances, it is not expedient to hold regular enquiry. Further, there is also a stipulation of the prima facie guilt being proved after a summary inquiry. The relevant provisions are reproduced as hereunder:--
"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 prima facie guilty of moral turpitude involving sexual offence or exhibition of immoral sexual behaviour towards any student, he can terminate the services of that employee by giving him one month's or 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 on account of serious embarrassment to the student or his guardians on 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 of the Samiti informed of the circumstances leading to such termination of services".
MANISH 2024.08.22 KUMAR 13:55:36 SRIVASTAV +05'30' A 11 Thus, from the above, it is seen that notification 20.12.1993 has passed the legal scrutiny of the Hon'ble Apex Court on many occasions, therefore, the contention of the applicant that regular inquiry instead of summary inquiry had to be conducted has no force in it. In fact the version of the applicant was also considered by the summary committee. Therefore, it is incorrect on part of the applicant to state that the Principles of Natural Justice have not been followed by the respondents. Notification dated 20.12.1993 is like a special legislation and it would reign over any general rules like Rules 11 & 14 of the CCS (CCA) Rules.
14. From the perusal of record, it is evident that the applicant was given an opportunity to present his defence before the summary enquiry committee. Show cause notice was issued to the applicant but he was careless to utilize the opportunity. Since the provision of notification dated 20.12.1993 for NVS is special provision and the same having been held to be legally valid by the Hon'ble Apex Court in judgments cited supra, the termination of services after issue of show cause notice cannot be said to be invalid. The summary enquiry report has come up with invincible evidence about the immoral behaviour of the applicant not merely against one child but against many. Services can be terminated under the said notification without conducting full-fledged enquiry. It is a special provision and it prevails over the general rules as has been settled by the Apex Court.
15. It is pertinent to mention here that since under provision of notification dated 20.12.1993 (supra), services of the delinquent employee can be terminated without conducting the full-fledged enquiry, therefore, in our view that there was no occasion to frame a charge and supply the same to the delinquent employee.
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16. The case law as relied upon by the applicant is not at all applicable in the case, in hand, on the fact and law both, as the facts of the cited case are on different footing with that of the present case and it was mentioned in the judgment that this should not be treated as precedent.
17. Submission raised on behalf of applicant that victim girl was not examined nor the applicant was given opportunity to cross examine the witnesses is also not sustainable/acceptable as the victim girl has been examined in this matter. Since it was a summery proceeding enquiry, therefore, plea taken by the applicant regarding opportunity of cross examination has no force.
18. Accordingly, the relief prayed for reinstatement and release of retiral dues and gratuity, cannot be granted in the instant case. The Rule 24 of CCS Pension Rules categorically provides that when an employee is dismissed or removed from services, it also entails forfeiture of his past services. Thus, instant original application is liable to be dismissed and is accordingly dismissed being devoid of merit. No costs. All associated MAs are disposed of.
(MOHAN PYARE) (JUSTICE OM PRAKASH VII)
Member (A) Member (J)
Manish
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