Central Administrative Tribunal - Delhi
Sh. P.Madhusudhan Rao vs Nvs & Ors. Through on 14 December, 2011
Central Administrative Tribunal
Principal Bench
OA NO. 3471/2009
New Delhi this the 14th day of December, 2011
Honble Mr.G.George Paracken, Member(J)
Honble Dr. A.K.Mishra, Member (A)
Sh. P.Madhusudhan Rao
S/o Sh. P.Swaminayadu
JNV Mahiyanwali
Distt. Sri Ganganagar
Rajasthan.
. Applicant
(By Advocate: Sh. M.K.Bhardwaj)
Versus
NVS & Ors. Through
The Chairman
Navodaya Vidyalaya Samiti,
Ministry of HRD, Govt. of India
Shastri Bhawan,
New Delhi-110001.
The Secretary,
Ministry of HRD,
Shastri Bhawan,
New Delhi-110001.
The Commissioner
Navodaya Vidyalaya
A-28, Kailash Colony,
New Delhi.
Ms. Pushpa Rani Verma
Assistant Commissioner
Navodaya Vidyalaya Samiti
A-28, Kailash Colony,
New Delhi.
Sh. M.L.Verma
Principal
JNV Mahiyanwali
Distt. Sri Ganganagar
Rajasthan.
Ms. Geeta Misra
PGT (Geo)
JNV Mahiyanwali
Distt. Sri Ganganagar
Rajasthan.
.. Respondents
(By Advocate: Sh. S.Rajapaa)
O R D E R
Honble Shri George Paracken:
This is the second round of litigation by the applicant against Annexure P-I order dated 17.4.2009 terminating him from service with immediate effect. He challenged the aforesaid order earlier before this Tribunal in OA-1242/2009 and the same was disposed of vide order dated 14.5.2009 granting liberty to the applicant to prefer an appeal against the same to be considered by the appellate authority on merit. Accordingly, the applicant has submitted an appeal dated NIL and the same was considered by the appellate authority, namely, the Honble Minister of Human Resource Development/Chairman, Navodaya Vidyalaya Samiti (NVS for short) but rejected it. By the impugned Annexure P-2 office order dated 5.10.2009, the said orders of the appellate authority has been communicated to the applicant. Applicant has, once again, challenged the order dated 17.4.2009 terminating his service and also the office order dated 5.10.2009 conveying rejection of his appeal in the present OA.
2. The brief facts necessary for adjudication of this Original Application is delineated here. The applicant was appointed as Trained Graduate Teacher (TGT for short) (Telugu and posted in the NV in Jaisalmer. Later on, he was transferred to Jawahar Navodaya Vidyalaya (JNV for short) at Nijamsagar, Andhra Pradesh, from there he was transferred to JNV Mahiyanwali Distt. Sri Ganganagar, Rajasthan. During the course of his service he was given the academic excellence award for the year 2003-04. Again for the year 2005-06 he was given award for his commendable achievements.
3. According to the Applicant, in February 2008, one girl student, namely, Shravani from Andhra Pradesh migrated to the JNV Mahiyanwali where he was posted and since she was finding problems, he requested respondent No.6, namely, Mrs. Geeta Mishra, PGT (Geo) teaching in the same school to allow that student to take rest for at least three days but she got annoyed and rebuked him. Thereafter, he brought the problem being experienced by the girl to the notice of the Principal. But the respondent No.6 got further angry and she threatened the applicant with dire consequences and in furtherance of her motive, she persuaded two students namely, Saroj Punia and Sonu Nath of class VIII-B for creating scene against him by alleging discrimination in giving marks. Since the Principal was not taking any action in the matter, respondent No.6 approached respondent No.4, namely, Mrs. Pushpa Rani Verma, Assistant Commissioner, NVS to put pressure on the Principal to take action against him. Thereafter, without disclosing any reason, the applicant was attached with the Regional Office, Jaipur on 24.2.2008 and he joined there on 28.2.2008. Meanwhile, the Principal of the school, namely, Sh. M.L.Verma proceeded on leave and in his absence, the respondent No.6, being the seniormost teacher, took charge of the Principal. Thereafter, all of a sudden, the applicant was placed under suspension by the Dy. Commissioner vide its order dated 7.3.2008 and posted him in NV at Sriganganagar. Subsequently, he was transferred as TGT (Telugu) in JNV Kaithal, Haryana. Later, by Annexure P-7 letter dated 1.4.2008 he was informed that a summary trial under Samitis notification dated 20.12.1993 was scheduled to be held on 23.4.2008 in the office of Dy. Commissioner (A&E), NVS, New Delhi and he was directed to appear before the said Committee. He was also placed under suspension vide order dated 7.7.2008, in terms of sub-rule (1) of Rule 10 of CCS (CCA) Rules, 1965. Thereafter, the respondents, vide impugned P-1 order dated 17.4.2009, terminated his service with immediate effect. In the said order, it was stated that a complaint of moral turpitude involving exhibition of immoral sexual behavior towards girl students was receive against him during his posting in JNV Sriganganagar and in the enquiry conducted regarding the said complaint, the charges leveled against him have been established and it was held that he was prima facie guilty of moral turpitude. Further, it has been stated in the said order that it was not expedient and practicable to hold a regular enquiry under the provisions of CCS (CCA) Rules, 1965 in the matter on account of the serious embarrassment it will cause to the concerned student and her guardians. The applicant challenged the aforesaid order before this Tribunal in OA-1242/2009 but the same was dismissed vide order dated 14.5.2009 for not availing the opportunity of filing an appeal against the same.
4. In Annexure P-10 appeal dated NIL applicant has stated that he was punished for none of his fault. According to him, the entire story was concocted by Ms. Geeta Mishra to harass and humiliate him. According to him, when his own son was studying in Class VIII in the same school, he could not have even thought of any such misbehavior as alleged by the respondents. Further, his contention is that the impugned order has been passed in violation of the principles of natural justice and in violation of Article 311 (2) of the Constitution and Rule 14 of CCS (CCA) Rules, 1965 as he was holding a civil post and his services could not be terminated without giving him an opportunity of hearing. He has also alleged that the respondents are not following the procedure as prescribed in notification dated 20.12.1993 for holding summary enquiry in the case of allegations of improper conduct with the girls. As the provisions contained in the said notification, only the Commissioner was the competent authority to dispense with the requirement of regular inquiry on the ground of immoral behavior towards students and the relevant provision contained therein reads as under:
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 Navodaya Vidyalaya Samiti is prima facie guilty of moral turpitude involving sexual offence or exhibition or immoral behavior towards any student, he can terminate the services of that employee by giving him one months notice of three months pay and allowances depending upon whether the guilty employee is temporary or permanent in the services of 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. However, in his case, the summary trial was ordered by the Dy. Commissioner without any authority. He has also alleged that the disciplinary authority has not considered his submissions that the allegations regarding moral turpitude made against him were nothing but a concocted story and a result of the conspiracy of Ms. Geeta Mishra and there was no truth in the same.
6. The respondents in their reply has submitted that on 19.2.2008 the Principal of JNV, Ganganagar received a complaint from two girl students of his school, namely, Saroj Punia and Sonu Nath that they had been sexually assaulted by the applicant. The Principal enquired into the facts of the complaints by calling the complainants in the presence of the House Mistress (HM) and Assistant House Mistress (AHM). They were also asked to enquire into the complaints and to submit their report. According to the report submitted by them on 29.2.2008 the applicant had physically misbehaved with the girls. Thereafter the Principal called the applicant and read out and showed the complaints to him and asked him to submit his reply. He has also formed a Committee to enquire into the matter. Further, on 23.2.2008 the Committee submitted its report and according to it, the applicant had misbehaved with the girls. On 25.2.2008 the Principal reported the matter to the Regional Office, Jaipur and they again ordered an inquiry into the matter and deputed respondent No.4 as the Inquiry Officer. On 4.3.2008 the respondent No.4 submitted its enquiry report and according to it, the allegations made by the girls were found to be true. Again, vide order dated 26.3.2008, the Headquarters of the NVS constituted a committee to inquire into the allegations of immoral sexual behavior of the applicant with the girl students. The applicant was also called by the Committee to make statements in his defence. The committee conducted the summary trial/inquiry on 23.4.2008. According to its report, the applicant was prima facie guilty of misbehaving with the girl students and he has outraged their modesty and integrity. Therefore, in terms of the provisions contained in Samitis notification dated 20.12.1993 services of the applicant were terminated vide order dated 17.4.2009. The appeal filed against the same was also dismissed vide order dated 5.10.2009.
7. In support of the aforesaid submissions, counsel for applicant has also relied upon the judgment of Honble Delhi High Court in R.S.Misra vs. Union of India & others, 56 (1994) DLT 8, the relevant part of the said judgment reads as under:
2. It all started in September, 1987. To be precise, September 14, 1987. On that day two girl students of the School, Kumari Reena and Kumari Chhaya, lodged written complaints with the Principal in regard to the misbehavior of Mr.Mishra. The Principal, thereupon "investigated the complaints" and reported the matter to the Assistant Commissioner, Ahmadabad with the assertion that the complaints had substance. Not only this, the Principal further stated that about 60 more students of class Ix and X of the Vidayalya had also made complaints against the misbehavior of Mr.Mishra. On receipt of the said communication, the Assistant Commissioner deputed one Dr.K.M.Patel, Education Officer, to inquire into the allegations. Dr.Patel submitted his report on September 28, 1987 holding that the petitioner was prima facie guilty of moral turpitude involving exhibition of immoral sexual behavior towards the girl students of his Vidyalaya. Since Dr.Patel had found Mr.Mishra prima facie guilty of the charges, the Assistant Commissioner could not possibly sit over the matter and he did not. He sent the report of Dr.Patel to the Commissioner of the Sansthan recommending Mr.Mishla's termination of services under Article 81(b) of the Education Code of the Kendriya Vidyalya Sansthan. I would be dealing with Article 81(b) of the Education Code for Kendriya Vidyalaya a little later. Let me first reproduce the said letter of the Assistant Commissioner. It runs as under:
"THE Commissioner Kendriya Vidyalaya Sangathan, Jnu Campus, New Mehrauli Road, New Delhi-110007. Sub : Action against Shri R.S. Misra, Pgt (Chemistry), Kendriya Vidyalya, Rajkot under Article 81(b) of Education Code (or Kendriva Vidyalavas. Sir, I am forwarding herewith a copy of letter No.F.KVR/87 dated 17.09.87 addressed to this Office by the Principal, Kv Rajkot (marked as Annexure-A). Immediately on receipt of the said letter from the Principal, Kv Rajkopt I deputed Dr.K.M.Patel, Education Officer of this office to proceed to Rajkot and to inquire into the allegations levelled against Shri R.S.Misra. A copy of Dr.K.M.Patel's fact finding report is enclosed (marked as Annexlire-B). As would be seen from the report of the inquiry conducted by Dr.Patel, Shri Misra is prima facie guilty of moral turpitude involving exhibition of immoral sexual behavior towards the girl students of Class Ix to Xii (Science Stream) of Kv Rajkot. Retention of such an employee in the services of the Sangathan is detrimental. It may be added here that it is not expedient to hold regular inquiry on account of serious embarrassment to the girl students or to their parents. 02. I, therefore, recommend that the services of Shri R.S.Misra, Pgt (Chem) of Kv Rajkot may kindly be terminated by giving him three months pay and allowances by invoking the provisions of Article 81(b) of the Education Code for Kendriya Vidyalayas. Yours faithfully, sd/- (A.K. Ray) Assistant Commissioner"
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15. The letter makes one thing clear and it is that the decision to dispense with the enquiry was taken by Assistant Commissioner A.K.Ray. Could he take this decision? Surely not. The reason being he is not the Commissioner. The Article invests the Commissioner only with the power. It could not be exercised by his subordinate.
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29. The Supreme Court thus throws enough light on what is to be understood by the words "not reasonably practicable" and reiterates it in Satyavir Singh v. Union of India. Keeping in view the said exposition and so also what has already been noticed by the above, I do not think that that portion of Article 81(b) of the Education Code which says that the enquiry shall be dispensed with where "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 guardian" can be taken to be covered by "it is not reasonably practicable to hold such enquiry". Rather, in my view. Article 81(b) of the Education Code provides a new ground for dispensation of enquiry which cannot be taken to be permissible. The argument that the dispensation of enquiry on account of "serious embarrassment to the student or his guardian" is unconstitutional and void as contravening Article 311(2) cannot thus be held to be without force.
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32. I think that the interpretation suggested by the respondents would completely defeat the import of the provision. The language, to my mind, is clear and it shows that it is the Commissioner and Commissioner alone who is to order the holding of such a summary enquiry as he deems proper and practicable in the circumstances of the case. In my view, the words "as he deems proper and practicable" invite no other interpretation.
8. Counsel for applicant has also relied upon the judgment of Apex Court in the case of Inderchand Jain through LRs. Vs. Motilal through LRs., (2009) 14 SCC 663, wherein it has been held as under:
30. Discretionary jurisdiction, it is trite, can be exercised provided there is any room for the court to so same and not otherwise. The court while exercising its jurisdiction would not act arbitrarily or beyond the contours of law. The contention of the plaintiff that he had also prayed for grant of a decree in the alternative, viz., in the event the court came to the conclusion that there had been no novation of contract, he was ready and willing to deposit the entire amount. No conditional offer was permissible in a suit for specific performance of contract.
9. The respondents have also refuted the grounds taken by the applicant in challenging the impugned orders of termination as well as the order of the appellate authority dismissing his appeal. According to them, as per the provisions contained in the aforesaid notification dated 20.12.93, whenever the Commissioner is satisfied after such summary trial as it deems proper and practicable in the circumstances of the case that any member of the NVS is prima facie guilty of moral turpitude involving sexual behavior towards any student, he can terminate the services of that employee by giving him one months 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 the CCS (CCA) Rules, 1965, as applicable to the employees of NVS, shall be dispensed with, provided that the Commissioner is of the opinion that it is not expedient to hold regular enquiry on account of serious embarrassment to the student of his guardians or such other practical difficulties. 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 Samiti informed of the circumstances leading to such termination of services. The said provisions have already been upheld by the various Courts in the country including Honble Supreme Court. In the present case the Commissioner was satisfied that the applicant was guilty of moral turpitude involving sexual behavior towards the girl students hence after recording the same in writing, requirement to hold a regular enquiry was dispensed with.
10. Counsel for respondents, Sh. S.Rajappa has relied upon the judgment of Apex Court in Avinash Nagra Vs. NVS (1997) 2 SCC 534. The relevant part of the said judgment reads as under:
With a view to ensure safety and security to the girl students, to protect their modesty and prevent their unnecessary exposure 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 23/12/1993, after due approval of the Executives of the respondent-Samiti. The Minister of Human Resources and Development, government of India is its Chairman.
Education to the girl children is nations asset and foundation for fertile human resources and disciplined family management, apart from their euqal participation in socioeconomic and political democracy. Only 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. Therefore, greater responsibility is 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.
.It is seen that the rules wisely devised have given the power to the Director, the highest authority in the management of the institution to take decision, based on the fact-situation, whether a summary enquiry was necessary or he can dispense with the services of the appellant by giving pay in lieu of notice. Two safeguards have been provided, namely, he should record reasons for his decision not to conduct an enquiry under the rules and also post with facts the information with Minister, Human Resources Department, government of India in that behalf.
.After conducting the enquiry, he submitted the report to the Director and the Director examined the report and found him not worthy to be a teacher in the institution. Under those circumstances, the question arises whether the girl and her roommates should be exposed to the cross-examination and harassment and further publicity? In our considered view, the Director has correctly taken the decision not to conduct any enquiry exposing the students and modesty of the girl and to terminate the services of the appellant by giving one month's salary and allowances in lieu of notice as he is a temporary employee under probation. In the circumstances, it is very hazardous to expose the young girls to tardy process of cross-examination. Their statements were supplied to the appellant and he was given an opportunity to controvert the correctness thereof. In view of his admission that he went to the room in the night, though he shifted the timings from 10 p.m. to 8 p.m. which was not found acceptable to the respondents and that he took the torch from the room, do indicate that he went to the room. The misguiding statement sent through Bharat Singh, the hostel peon, was corroborated by the statements of the students; but for the misstatement, obviously the girl would not have gone out from the room. Under those circumstances, the conduct of the appellant is unbecoming of a teacher much less a loco parents 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.
11. He has also relied upon the judgment of the Apex Court in the case of Director, NVS & Others vs. Babban Prasad Yadav, 2004 (2) SCALE 400, wherein the judgment of Avinash Nagra (supra) was also considered. The relevant part of the judgment reads as under:
5. . All that is required for the court is to be satisfied that the preconditions to the exercise of power under the said rule are fulfilled. These preconditions are: (7) holding of a summary enquiry, (2) a finding in such summary enquiry that the charged employee was guilty of moral turpitude; (3) the satisfaction of the Director on the basis of such summary enquiry that the charged officer was prima facie guilty; (4) the satisfaction of the Director that it was not expedient to hold an enquiry on account of serious embarrassment to be caused to the student or his guardians or such other practical difficulties and finally; (5) the recording of the reasons in writing in support of the aforesaid.
12. Again, in the case of Commissioner, K.V.Sangathan and others vs. Rathin Pal, arising out of SLP (C) No.4627/2008, the Apex Court has held as under:
We have heard learned counsel for the parties and perused the record of the appeal. We have also gone through the file containing the papers relating to inquiries, which was produced by learned counsel for the appellants. The file was also made available to the learned counsel for respondents for his perusal. It is not in dispute that in both the inquiries, one of which was conducted by a team of 9 teachers and the other by a two-Member Committee, the girls, who made the complaints stood by the allegations made in the complaints and vividly described the manner in which the respondent had sexually assaulted them. In the second inquiry, the parent of the girls also repeated the allegation. Two of them also stated that they were threatened by respondent with dire consequences. Respondent did make an attempt to project himself as victim of some conspiracy but he could not produce any tangible evidence either before the Inquiry Committee or the Appellate authority. Even before the Tribunal, he could not substantiate the charge that he was being framed up for extraneous reasons. Appellant No.1 scrutinized the statements of the girl students and their parents and felt convinced that it would not be reasonable and practicable to conduct an inquiry under the 1965 Rules because the same would cause serious embarrassment to the girls, who were age 11 to 12 years and their parents and would also vitiate the atmosphere of the school. Therefore, it is not possible to find any fault with the decision taken by appellant No.1 to dispense with the regular inquiry and invoke Article 81 (b) of the Education Code. In its order dated 3.4.2003, the Tribunal recorded cogent reasons for negating the respondents challenge to the termination of his service, but the High Court upset that order as also the one passed by appellant No.1 without even adverting to the reasons recorded by him for dispensing with the inquiry.
13. We have heard the learned counsel for the parties. It is a well settled legal position that in case of allegations of sexual harassment/assault of girl students by their male teachers, detailed and elaborate enquiry as provided in Rule 14 of CCA (CCA) Rules, 1965 or any similar rule can be dispensed with, in the interest of such students and their guardians/parents and it will not amount to the violation of Article 311 (2) of the Constitution. In such cases, only summary enquiry needs to be held. In this regard, NVS has already issued notification dated 20.12.1993. While disposing such detailed enquiry, the only condition to be satisfied in such cases is that the Commissioner of the Samiti shall be satisfied and it is only proper and practicable to terminate the services of a member of the NVS who is prima facie guilty of moral turpitude involving sexual behaviour towards any student after a summary enquiry. In this case, the allegation of sexual harassment/assault on two girl students has been enquired into at a level of the school and Regional Office. In both the enquiries, the applicant was found to be guilty. In our considered view, the judgment of the Apex Court in Avinash Nagra (supra) Babban Prasad (supra) and Rathin Lal (supra) are quite applicable in this case. The Apex Court has held in case where allegation of moral turpitude is leveled against a teacher on the basis of complaints of the girl students of sexual harassment, no enquiry as envisaged under Rule 14 of CCS (CCA) Rules, 1965 is required and such enquiry can be dispensed with on the satisfaction of the Commissioner of KVS. We have seen that the requirement in such cases has been fully complied with by the respondents while terminating the service of the applicant. In view of the above, we do not find it appropriate to interfere in the matter and arrive at a different decision. We, therefore, dismiss this Original Application. There shall be no order as to costs.
( Dr. A.K. Mishra ) ( George Paracken )
Member (A) Member (J)
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