Central Administrative Tribunal - Patna
Niranjan Pati vs Navodya Vidyalaya Sanghathan on 14 November, 2022
1
O.A. No.971/2018
Central Administrative Tribunal
Patna Bench, Patna
O.A. No.971/2018
This the 14th day of November, 2022
(Through Video Conferencing)
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Shri Niranjan Pati, Son of Late Kalandi Pati,
resident of At/PO-
At/PO Manibandha, PS- Badamba,
District-Cuttack,
Cuttack, State-Odisha,
State Pin- 754035,
and served as T.G.T (Odia),
Jawahar Navodaya Vidyalaya,
Banka, Pin-
Pin 813102 (Bihar).
(By
By Advocate:-
Advocate: Shri M.P. Dixit)
-Applicant
Applicant
-Versus-
1. The Union of India through the Secretary,
Ministry of HRD (Department of School Education
and Literacy), Govt. of India, New Delhi
Delhi-110001.
2. The Commissioner, Navodaya Vidyalaya Samiti,
head office: B-15,
B 15, Institutional Area, Sector
Sector-62,
NOIDA (UP)-201309.
(UP)
3. The Deputy Commissioner, Navodaya Vidyalaya Samiti,
Regional Office, Karpuri Thakur Sadan,
5th Floor, Ashiyana-Digha
Ashiyana Road,
Patna- 800025.
4. The Deputy Commissioner, Navodaya Vidyalaya Samiti
(Pers), B-15, Institutional
tutional Area, Sector
Sector-62,
NOIDA (UP), PIN-
PIN 201309.
5. The Principal, JNV, Banka, Bihar-
Bihar-813103.
6. The Principal, JNV, Bastar (C.G.),
Chattishgarh, Pin-
Pin 494001.
7. The Deputy Commissioner, NVS Regional Office,
Bhopal, A-135,
A Alkapuri,
i, Gate No. 2 (MP)
(MP)-462011.
(By Advocate: Shri K.P. Narayan)
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O.A. No.971/2018
ORDER (Oral)
The instant Original Application has been preferred by the applicant, a Trained Graduate Teacher (TGT) in Navodaya Vidyalaya Samiti (NVS), against the order dated 15.04.2018 (Annexure A-7) A 7) passed by the Commissioner, NVS terminating his services for immoral sexual behaviour towards a girl student namely (X) and the order dated 09.10.2018 (Annexure A-9)
9) passed by the Appellate Authority upholding the punishment of termination.
2. A Division Bench comprising Hon'ble Mr. M.C. Verma, Member (J) and Hon'ble Mr. Sunil Kumar Sinha, Member (A) heard the O.A. in detail. The respective Members differed in their conclusions. The Hon'ble Member (A) vide order dated 12.07.2022 opined as follows:-
"22. In view of the facts and legal position discussed above, it is clear that the applicant's services was terminated in accordance with the provisions of NVS Notification dated 20.12.1993. All the preconditions for invoking the provisions of the the Notification were fulfilled. The legal and Constitutional validity of the NVS Notification has been upheld by Hon'ble Supreme Court. Hence, we are inclined to hold that the OA is devoid of merit and deserves dismissal. Accordingly, OA is dismissed as devdevoid of merit. No Cost."
Thereafter Hon'ble Member (J) disagreed with the conclusions reached by Hon'ble Member (A). The operative para of the said order reads as under:-
under:
"29. In view of the facts and legal scenario, discussed above; and with the above note, note, I respectfully disagree with 3 O.A. No.971/2018 conclusions reached by my esteemed brother, Hon'ble Mr. S. K. Sinha, Administrative Member that the OA is to be dismissed, however I did find that the order of termination of the services of applicant is not legally sustaisustainable and consequently order of Appellate Authority upholding the order of termination of the services of applicant is also bad in law. Both said orders thus deserve quashing and accordingly are quashed and set aside. 30. Since, there is difference of opin opinion between both the Members, the matter needs to be referred to a 3 Member Bench to examine whether the impugned orders of OA are legally sustainable or not about reinstatement and final fate of applicant's OA."
3. In view of this difference of opinion, the matter is heard by me. I heard Mr. M.P. Dixit, learned counsel for the applicant and Mr. K.P. Narayan, learned counsel for respondents at some length.
4. The brief facts, arise in this OA, are that the applicant was posted as TGT (Odia) at Jawahar Navodaya Vidyalaya (JNV), Bastar. A complaint about his indulgence dated 21st December 2016 in immoral sexual behaviour towards a migrated girl student of Class IX was received. As per the NVS guidelines, the complaint was initially investigated by a Schoo Schooll level committee headed by the Assistant Commissioner NVS, Rajpur. Both the Committees found the applicant's guilty of immoral behaviour towards the girl student, namely (X). Based on the reports of the School level and Cluster level committees, Commissioner, Commissioner, NVS in accordance with the provisions of Samiti's Notification dated 20.12.1993, constituted a committee to conduct summary trial into the 4 O.A. No.971/2018 complaint. The committee members, after the enquiry, concluded unanimously that the applicant had committed misbehaviour and immoral act against the victim girl, a migrant student of Class IX.
5. The Commissioner, NVS, in exercise of the powers conferred under the provisions of Notification dated 20.12.1993, terminated the services of the applicant with immediate ediate effect vide order dated 15.04.2018 (Annexure (Annexure-7)
7) with a direction to pay the applicant admissible salary and allowances for three months. The applicant preferred his appeal against the termination order but the Appellate Authority rejected the appeal appeal and communicated the same to the applicant vide order dated 09.10.2018 (Annexure (Annexure-9).
6. Aggrieved by the same, the applicant preferred an Original Application. He has assailed the impugned order on the following grounds:
"i) The Committee conducting fo forr summary inquiry did not follow the procedure laid down in NVS Headquarters vide letter dated 20.12.1993.
ii) The said enquiry has been completed in complete violation of principles of natural justice as the applicant demanded a copy of the complaint of tthe he alleged victim and the reports of the committees at the school level as 5 O.A. No.971/2018 well as the cluster level committees. However, the same were not supplied to him, therefore, he has not been given fair opportunity to defend himself rather he has been demanded the copy of the complaint of alleged victim.
iii) The Principal of the school had an animosity against the applicant as the applicant had filed a criminal case against the Principal in which the Principal was convicted. He further submits that the entir entire e case is based on conjectures and surmises as there is no evidence to support the allegations against the applicant.
iv) The Commissioner, NVS has not recorded the reasons in support of his decision of dismissing the applicant while inflicting the extreme extreme penalty against him.
Therefore, the same has been done without any application of mind.
7. The respondents in their Written Statement contested the case of the applicant. They have averred that the NVS is an autonomous body registered under the Societies Registration Act, 1860 and functions under direct control of HRD Ministry, Govt. of India. Being a co-educational educational institution, with at least one third of the students being girls, the responsibility of 6 O.A. No.971/2018 ensuring their safety, security and modesty falls upon the NVS. In face of some complaints of the molestation of girl students by the NVS staff in past, the Estimates Committee (10th Lok Sabha) had recommended setting up a Committee of MPs, educationists and eminent persons to consider the issue and suggest remedial measures. After deliberations of this committee and with approval of the Executiv Executive e Committee of the Samiti, the Notification dated 20.12.1993 was issued authorising the Director (now Commissioner) to terminate the services of an employee who is found prima facie guilty of immoral sexual behaviour towards a girl student, after such summary ary enquiry as he deems proper and practicable in the circumstances of the case.
8. The importance of the said Notification is that the Director (now Commissioner) has found the facts of the present case fit for termination of the applicant and accordingly the services of the applicant have been terminated. The respondents have pleaded that that in the instant case, having received the enquiry report into the complaint against the applicant from the Regional Office, Commissioner NVS was of the opinion that it was not expedient to hold a regular inquiry as prescribed under the CCS (CCA) Rules, 1965 as that would be traumatic and embarrassing to the victim girl and her family. Hence, invoking the special provision under the 7 O.A. No.971/2018 Notification dated 20.12.1993 Committee constituted three NVS officers to conduct the summary inquiry. In pursuance of the outcome of same, holding the applicant guilty, the services of the applicant have been duly terminated.
9. The applicant has filed his rejoinder wherein he has mentioned that the respondents did not enclose a copy of the Estimates Committee report besides besides reiterating his grounds in the O.A. He has added that while the Notification provides for a summary trial, the office order of NVS mentioned summary trial. However, the rule of law cannot be deviated and the principles of natural justice cannot be kept in abeyance. According to him, he has been harassed. It is a counterproductive act of the Principal in view of the complaint made by him against the Principal.
10. Learned counsel for the respondents draws support from the Written Statement filed by the respondents and reiterates that the respondents have followed the due procedure, in the present circumstances, as prescribed in the Notification dated 20.12.1993, and, therefore, interference of this Tribunal is unwarranted. He further draws support from the law laid down by the Hon'ble Supreme Court in the case of Vishakha and Others vs. State of Rajasthan and Others (1997) 6 SCC 8 O.A. No.971/2018 241,, wherein the complainant could not have been called for evidence and from the judgment rendered by the Apex Court in Avinash h Nagra vs. NVS and Others (1997) 2 SCC 534. The relevant Para of the said judgment reads as under:
under:-
"It is axiomatic that percentage of education among girls, even after independence, is fatham deep due to indifference on the part of all in rural India exceptexcept some educated people. Education to the girl children is nation's asset and foundation for fertile human resources and disciplined family management, apart from their equal participation in socio-economic economic and political democracy. Only of late, some middle ddle class people are sending the girl children to co 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 colle colleges to protect the young children, in particular, the growing up girls, to bring them up in disciplined and dedicated pursuit of excellence. The teacher who has been kept in charge, bears more added higher responsibility and should be more exemplary. His/herer character and conduct should be more like Rishi and as loco parent is and such is the duty, responsibility and charge expected of a teacher. The question arises: whether the conduct of the appellant is befitting with such higher responsibilities and as he by his conduct betrayed the trust and forfeited the faith whether he would be entitled to the full-fleged full fleged enquiry as demanded by him? The fallen standard of the appellant is an ice berg in the discipline of teaching, a noble and learned professing; it iis for each teacher and collectively their body to stem the rot to sustain the faith of the society reposed in them. Enquiry is not a panacea but a nail on the coffin. It is self self-inspection and correction that is supreme. It is seen that the rules wisely devised devised have given the power to the Director, a highest authority in the management of the institution to take decision, based on the fact situation, whether a summary enquiry was necessary or he can dispense with the services of the appellant by giving pay in lieu of notice. Two safeguards have been provided, namely, he should record reasons for his decision not to conduct an enquiry under the rules and also post with facts the information with Minister, Human Resources Department, Government of India in that that behalf. It is seen from the record that the appellant was given a warning of his sexual advances towards a girl student but he did not correct himself and mend his conduct. He went to the girl hostel at 10 p.m. in the night and asked the Hostel helper, B Bharat Singh to misguide the girl by telling her that BioBio-Chemistry Madam was calling her; believing the statement, she came out of the hostel. It is the admitted position that she was an active 9 O.A. No.971/2018 participant in cultural activities. Taking advantage thereof, he misused his position and adopted sexual advances towards her. When she ran away from his presence, he perused her to the room where she locked herself inside; he banged the door. When he was informed by her room mates that she was asleep, he rebuked them them and took the torch from the room and went away. He admitted his going there and admitted his meeting with the girl but he had given a false explanation which was not found acceptable to an Inquiry Officer, namely. Asstt. Director. After conducting the enquiry, nquiry, he submitted the report to the Director and the Director examined the report and found him to be not worthy to be a teacher in the institution. Under those circumstances, the question arises: whether the girl and her room-mates mates should be exposed to the cross 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 ving 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 for tortuous process of cross cross-examination. Their statements were supplied to the appellant 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 h 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 examination are legal and not vitiated by viviolation of the principles of natural justice."
11. Before I proceed further, I fully agree with both the Hon'ble Members of the Bench with respect to the conclusion that the Commissioner NVS, the highest authority in the management of the Institution has concluded that the regular enquiry needs to be dispensed with for the reasons recorded by him in support of his decision, with respect to not to conduct an enquiry under the rules and also post the facts 10 O.A. No.971/2018 before the Minister, Human Resources Department, Government vernment of India in that behalf. Without hesitation, no fault can be attributed to the respondents with respect to the dispensing of the full-fledged full fledged enquiry.
12. On perusal of the summary trial report of the summary trial committee, it finds mention that a copy of the complaint, as well as the state level committee and the cluster level committee reports were shown to the applicant at the time of a hearing before, and he acknowledged the same, rather his signatures were obtained. It is seen that the said reports were voluminous, runs into 95 pages and it is practically impossible for a delinquent to go through the same instantaneously and respond on the spot. He was made to answer his defence statement in pursuance thereof in the said hearing itself itself.
13. The rule of audi alteram partem is not only to secure justice but to prevent miscarriage of justice as well. The essence of judicial review has an objective approach and excludes any material that may come in the way of rule of natural justice.
11O.A. No.971/2018
14. In view of the above, it can be concluded that the applicant has, in fact, not been given a fair chance to defend himself while conducting the summary trial.
15. I may refer to the judgement passed by the Hon'ble Supreme Court in Director Navoday Navodaya a Vidyalaya Smiti Vs. Babban Prasad Yadav (2004 (13) SCC 568) wherein it has been observed that a Court should satisfy that the preconditions for exercise of the power under the rule are fulfilled. Relevant paragraph of the order is reproduced as under:-
"7. We are of the view that the High Court erred in reversing the decision of the Tribunal. The rule quoted earlier, explicitly deals with such situations as obtains in the present case. The rule is not under challenge. All that is required for the court is is to be satisfied that the pre conditions to the exercise of the power under the said rule are fulfilled. These preconditions are (1) holding of a summary enquiry, (2) a finding in such summary enquiry that the charged employee was guilty of the moral turpitude;
itude; (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 caused to the student or his guardians or such other practical difficulties and finally; (5) the recording of reasons in writing in support of the aforesaid."
16. Ordinarily the Tribunal may not sit in judgment over the decision of the employer as an appella appellate te authority. It is seen that based on the five components reproduced hereinabove, the Commissioner, prima-facie, without recording any reason has concluded the applicant was guilty of the alleged 12 O.A. No.971/2018 misconduct. In the impugned order dated 15.04.2018 passed by the Commissioner, it is clear that the Commissioner has not recorded any reasons in support of the decision taken by him. Therefore, it can be concluded that there is complete non-application application of mind with respect to the Fifth component as enumerated in the judgement cited hereinabove has not been satisfied.
17. In view of the above observations, I agree with the view taken by the Hon'ble Member (J), however, to cure the deficiency, this O.A. is disposed of and both the Impugned orders dated 15.04.2018 15.04.2018 and 09.10.2018 are quashed and set aside. The respondents are directed to conduct the enquiry afresh from the stage of summary trial after giving proper and due opportunity to the applicant strictly as per law, rules and instructions on the subject. The said exercise be completed within a period of four weeks from the date of receipt of a copy of this order. No costs.
(Pratima K. Gupta) Member (J) cc.