Calcutta High Court (Appellete Side)
Debashish Debnath vs Union Of India And Others on 23 June, 2011
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
1
Form No. J.(2)
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashim Kumar Banerjee
And
The Hon'ble Justice Prabhat Kumar Dey
W.P.C.T. No.351 of 2007
Debashish Debnath
-VS-
Union of India and Others
And
W.P.C.T. No.93 of 2011
Goutam Kumar Sahoo
-VS-
Union of India & Ors.
For the Petitioner : Mr. Kalyan Bandyopadhyay
in WPCT 351 of 2007 Mr. Subhabrata Dutta
Mr. Sirsanya Bandopadhyay
For the Petitioner : Mr. Negive Ahmed
in WPCT 93 of 2011 Mr. Surya Maity
Additional Solicitor General : Mr. Faruk Razzak
2
For the respondents in : Mr. Paresh Chandra Maity
in WPCT 351 of 2007
For the respondents in : Mr. Kaushik Ray
in WPCT 93 of 2011
Heard on : June 6, 8, 15 & 16 2011.
Judgment on : June 23, 2011.
ASHIM KUMAR BANERJEE.J:
CONTROVERSY
Both these writ petitions pertain to an identical controversy and identical
question of law. These two matters were heard analogously and are being
disposed of by this common judgment. In these writ petitions the petitioners
were teachers of Kendriya Vidyalaya Sangathan and Jawhar Navodaya
Vidyalaya respectively, both controlled by the Ministry of Human Resources
Development, Government of India. Navodaya Vidyalaya was run by a
society called Navodaya Vidyalaya Samity which is mainly residential co-
education school whereas Kendriya Vidyalaya was run by Kendriya Vidyalaya
Sangathan, another society running day boarding school. They were guided
almost the identical rules and were controlled by the Ministry of Human
3
Resource Development, Government of India. The petitioners were charged
with the allegation of immoral behavior and illicit relationship maintained
with the girl students. They were separately dealt with departmentally on a
summary trial and ultimately suffered the order of dismissal. In both the
cases they approached the Tribunal unsuccessfully. Being aggrieved, they
filed the above two petitions before us which were heard on the above
mentioned dates. Let us first briefly narrate the facts.
FACTS
WPCT 351 OF 2007 In the year 1985 the petitioner was appointed as Physical Education teacher in Kendria Vidyalaya, Binaguri, West Bengal. In April 2002 he was posted in Kendria Vidyalaya, Gangtok. While he was working in the said school the authority asked him to appear before a preliminary enquiry Board on February 7, 2004 on the alleged charge of immoral sexual behavior extended to one student of class eleven namely Shamolika (name changed). The preliminary enquiry was held on February 25, 2004. As per the enquiry report the charge was proved before the Enquiry Committee. The teachers and the fellow students including the victim appeared and gave appropriate version on the alleged charge. To sum up the evidence, it would appear that 4 the petitioner was married and was living with his family in the residential quarter. He proposed to Shamolika to marry her. He gave love letter as well as gifted chain which Shamolika returned to his wife. One of the students also alleged that the couple had been to Binaguri and stayed together in a hotel. However, there was no confirmation from any other corner on that score. The petitioner also signed a letter of confession admitting the relationship which he later on disputed by saying that it was procured by force. The victim also admitted that she committed gross mistake by not informing the family members and the teachers in due time. She contended that the concerned teacher blackmailed her that if she would not agree with his proposal he would commit suicide.
Considering the preliminary report the authoity issued a chargesheet on April 8, 2004. The delinquent replied to the same vide letter dated April 16, 2004. After considering the Enquiry Report and the explanation given by the concerned teacher on the Enquiry Report the Commissioner issued the chargesheet on April 7, 2004 and asked him to reply within fifteen days by showing cause why he should not be terminated under Article 81(b) of the Education Code for Kendriya Vidyalaya. Ultimately, the authority vide order dated April 30/May 5, 2004 terminated his service. Being aggrieved, the 5 Tribunal vide order dated July 13, 2005 asked the appellate authority to dispose of his appeal within this stipulated period. Accordingly, the appellate authority heard the matter and dismissed the appeal vide reasoned order dated January 27, 2006. Being aggrieved, the petitioner approached the Tribunal for the second time. The Tribunal, upon considering the matter, held that the authority did not commit any illegality by terminating his service under Article 81(b) of the Education Code in the facts and circumstances involved therein. In course of hearing the learned counsel for the Administration handed over the entire records and thereafter submitted xerox copy of the relevant extracts wherefrom we find that the authority initially conducted a preliminary enquiry which was followed by a regular summary enquiry after affording opportunity to the delinquent at every stage to defend himself and the proceeding ended in an order of termination. We have also considered the summary report which concluded that the delinquent had committed gross mistake by establishing illicit relationship with Shamolika. He also conceded his mistake in his letter dated February 9, 2004. He identified his signature during enquiry. His contention that the confession was procured, was not credible and motivated. The summary enquiry held him guilty of the charge.
6W.P.C.T. 93 OF 2011 In the instant case the petitioner was a teacher (TGT, Science) engaged in Navodaya Vidyalaya Samity. In January 2007 while he was in Navodaya Vidyalaya R.C. Ghat he suffered an order of suspension on the allegation of immoral sexual behaviour indulging in sexual harassment of a minor girl of class nine proposing her to marry her. Pertinent to note, the girl Kamolika (name changed) was student of class nine. She stood first in the class. The petitioner pastured her to agree to his proposal to marry him although the petitioner was married and living with his wife who was also a teacher in the concerned school. Enquiry Report revealed that the mother of Kamolika lodged a complaint against the petitioner that he had proposed her daughter to marry and offered her a chain, love letter and a greetings card. The teacher was unnecessarily disturbing her which resulted disturbance in her study. The music teacher who was the House Mistress warden in the girls' hostel corroborated the complaint. Another teacher R. Palit also supported the music teacher. The Enquiry Officer also examined the fellow students who also deposed in the affirmative. The Enquiry Officer concluded that there was no reason to disbelieve the statement of the victim girl and the other witnesses and the explanation offered by the concerned teacher and his wife was meritless and was made with a view to avoid the disciplinary proceeding. 7 Being satisfied with the result of the enquiry he was placed under suspension and was asked to join another school and was allowed to draw subsistence allowance vide order February 22, 2007. However, he was given opportunity to defend himself in the proceeding and on the enquiry dates he was relieved from his place of posting so that he could attend the enquiry. The authority thereafter directed a summary trial to be conducted on March 21, 2007 and asked the petitioner to attend counseling programme. In July 2007 the order of suspension was revoked. He was transferred to Navodaya School, Howrah where he joined on August 14, 2007. In April 22, 2008 he received the charge sheet on the above mentioned charges asking him to attend the regular enquiry disciplinary proceeding. Accordingly he appeared and submitted his written statement where he denied all the charges. The petitioner approached the Tribunal by filing O.A. No.13269 of 2008. The Tribunal disposed of the said application vide order dated April 2, 2009. The Tribunal did not pass any interim order and directed the application to be heard on affidavit. The proceeding continued which culminated in the order dated October 27, 2010 wherein he was removed from service as appears from page 122 and 123 of the petition. The Tribunal application came up for hearing on February 22, 2001. The Tribunal considered the issue and ultimately dismissed the said application by observing that the applicant failed to 8 establish his case for quashing the disciplinary proceeding. Being aggrieved, the petitioner filed the instant application which was heard by us on the above mentioned dates.
OUR VIEW ON MAINTAINABILITY Before we consider the factual matrix involved in both the cases we would be failing in our duty if we do not consider the decision of another Division Bench in the case of Kendriya Vidyalaya Sangathan & Another -VS- Prem Narayan Pandey & Others (W.P.C.T. 310 of 2008) touching the maintainability of these two petitions. Our attention was drawn to the Division Bench decision in the said case dated April 29, 2011 wherein the Division Bench observed that since the Navodaya Vidyalaya Samity and/or the Kendriya Vidyalaya Sangathan are "society" within the meaning of Society Registration Act it could not be said to be a limb of the Government or be called as "other authority" within the meaning of under Article 323A of the Constitution.
We have carefully perused the said decision. We have heard Mr. Kalyan Bandyopadhya for the petitioner in W.P.C.T. No.93 of 2011, Mr. Negive Ahmed for the petitioner in W.P.C.T. 351 of 2007, Mr. Paresh Chandra Maity, 9 learned counsel appearing for the respondent, Navodaya Vidyalaya Society and Mr. Kousik Roy for Kendriya Vidyalaya Sangathan. We have also heard the learned Additional Solicitor General on the issue. All of them categorically submitted that the decision of the Division Bench referred to above, was contrary to the well-settled principle of law as decided by the Apex Court. They contended that none of the parties in the case of Prem Narayan Pandey and Others did raise such issue before Their Lordships. It was nobody's contention that the said school would not come under the purview of Article 323A of the Constitution of India to be dealt with by the Tribunal under Section 19 of the Administrative Tribunal Act. Learned counsel for the parties before us were unanimously of the opinion that the concerned school would squarely come within the purview of "other authority" as prescribed in Article 323 A of the Constitution and, thus, would come within the jurisdiction of Administrative Tribunal under Section 19 of the said Act. However, since such issue was raised before us, it is our duty to dispel our doubt as to the applicability of the said decision, before we go into the factual matrix.
Two decisions of the Apex Court being relevant herein, are relied upon :- 10
a)2002 Volume-V Supreme Court Cases Page-111 (Pradeep Kumar Biswas -VS- Indian Institute of Chemical Biology and Others) b)2002 Volume-IV Supreme Court Cases Page-145 (Kendriya Vidyalaya Sangathan and Another -VS- Subhas Sharma)
Those two decisions were duly considered by Their Lordships in the decision in the case of Prem Kumar Dubey. Their Lordships held that those two decisions did not consider the real issue. In page 55 of the said decision their Lordships considered the seven Judges Bench decision in the case of Pradeep Kumar Biswas (Supra). Considering the said decision the Division Bench observed -
"with due respect, the question as now being faced by this Court to have an answer namely "in absence of incorporation of the word "society" under Article 323A specifically, but incorporation of the word "Corporation specifically", in the said provision by constitutional amendment having regard to Article 368 of the Constitution of India, whether Parliament can in 11 exercise of power under Article 323A, may set up the Administrative Tribunal to decide the service dispute of "society" by amending Section 14 of the Administrative Tribunal Act, 1985 and in terms of notification dated 17th December, 1998 being JSR 748(d) can notify Kendriya Vidyalaya Sangathan within the Administrative Tribunal umbrella, was not issue in Pradeep Kumar Biswas (supra) and this point was not decided therein. In that case, issue was different to determine whether any society registered under the Society Registration Act could be considered as a "State" under Article 12 of the Constitution of India for the purpose of adjudication of disputes relating to and touching the constitutional provision of Part III & Part IV of the Constitution of India and in that angle the Court answered the issue as framed, in paragraph 4 of the said report, namely "whether CSIR a State within the meaning of Article 12 o the Constitution of India". The question before the said Bench from paragraph 4 of report, is quoted below :-
"The questions therefore before us are - is CSIR a State within the meaning of Article 12 of the Constitution and if it is, should this Court reverse a decision which has stood for over a quarter of a century." 12
It appears from the concluding part of paragraph 66 of said report that conflict as arose in view of decision of Subhojit Tewari case reported in (1975) 1 SCC 485, was resolved by overruling the same and holding that CSIR, though registered under the Society Registration Act, but, having regard to its management, financial aid, and control in the angle of financial, functional and administrative domination or control of the Government, will lead an answer that CSIR a State under Article 12 of the Constitution of India. In Pradip Kumar Biswas (Supra) there was no challenge of said Government notification and no issue raised as already discussed that in Article 323A when the word "society" has not been mentioned, whether it could be placed within the umbrella of Administrative Tribunals, by exercising the constitutional powers under Article 323A, for setting up such tribunals to adjudicate service disputes of employee of such type of society."
The Division Bench also considered the other decision in the case of Subhas Sharma (Supra) :
"Learned Additional Solicitor General relied the judgement passed in the case Kendriya Vidyalaya Sangathan & Anr. vs. Subhash Sharma reported 13 in (2002) 4 SCC 145 to submit that the Apex Court has dealt with the issue that service dispute of Kendriya Vidyalaya Sangathan could be adjudicated by Administrative Tribunals. On reading the said judgement, it appears that in that judgement the issue involved was whether Central Administrative Tribunal had exclusive jurisdiction, as Court of first instance, in relation to service matter concerning employees of Kendriya Vidyalaya Sangathan, posted in State of Jammu & Kashmir, in the angle of jurisdictional power of High court under Article 226/227 of the Constitution of India read with corresponding provision of Section 103/104 of the Constitution of Jammu & Kashmir, which has not excluded the jurisdiction of the writ Court to deal with that issue. In that case also, with due respect, the apex Court was not addressed to have an answer of the point which is the subject matter of the present case as discussed above, namely, power of the Parliament under Article 323A to set up the Administrative Tribunal in respect of service disputes of any "Society" registered under the said Society Registration Act and controlled by the Government."
The above decisions squarely covered the issue and such decisions are binding upon us. In the case of Subhas Sharma (Supra), the Apex Court noted the fact that vide notification dated December 17, 1998 the Central 14 Government clarified that the Kendriya Vidyalaya would be included in the notification as item no.34 to come within the ambit of Central Administrative Tribunal. Such notification was admittedly not under challenge. Such notification was held to be valid by the Apex Court in the case of Subhas Sharma (Supra). Even if we accept Their Lordships' view that the decision in the case of Pradeep Kumar Biswas (Supra) would not be applicable (although we respectfully disagree) the decision in the case of Subhas Sharma (Supra) did not leave any scope for the High Court to consider such issue again as the issue was res integra after the said decision in the case of Subhas Sharma (Supra) wherein the decision of the Central Government to include Kendriya Vidyalaya within the ambit of Central Administrative Tribunal was held to be valid. With deepest regard we have for Their Lordships, we unhesitatingly observe that the issue was settled at the Apex Court level in the case of Subhas Sharma (Supra). Hence, we need not refer it to a larger bench. We hold that the Tribunal was within their right to entertain both the applications and the orders passed by the Tribunal could not be said to be nonest in the eye of law on such ground.
OUR VIEW ON MERIT 15 Let us now consider the issue on merit. Article 81(b) dealt with the issue of summary trial of any staff of Kendriya Vidyalaya and Navodaya Vidyalaya as the case may be, involving sexual offence or exhibition of immoral sexual behaviour towards any student by any teacher. The extant rule is quoted below :-
"Where the Commissioner is satisfied after such a summary enquiry as he deems proper and practicable in the circumstances of the case that any member of the Kendriya Vidyalaya is prima facie guilty of moral turpitude involving sexual offence or exhibition of immoral sexual behaviour towards any student he ca terminate the services of that employee by giving him one month's or three month's pay and allowances accordingly as the guilty employee is temporary or permanent in the service of the Sangathan 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 the Kendriya Vidyalaya Sangathan shall be despensed with provided that the Commissioner is of the opinion that it is not expedient to hold regular enquiry on account of embarrassment to student or 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 16 and he shall keep the Chairman of the Sangathan informed of the circumstances leading to such termination of services."
In both these cases the facts would reveal that the concerned teachers were involved in the offence of establishing illicit relationship with the student. In the case of Shamolika, she was student of class eleven whereas the delinquent was a married teacher having his family residing in the quarter. It was not expected of a teacher to express his romantic feeling to one of his students studying in the same school and then forcing her to agree to his proposal. The facts would reveal, he offered gift and passed on love letters. When the student declined he threatened her that he would commit suicide. By such emotional blackmail the delinquent tried to win over the girl to satisfy his desire.
In the case of Kamolika, she was the best student in class nine whereas the concerned teacher was married having his wife, also a teacher teaching in the same school. It was also not expected of him to express his emotional feeling towards her.
17In the case of Shamolika she did not contemporaneously complain either to the teachers or to her parents. However, Kamolika made complaint not only to the teachers but also to her parents who, in turn, lodged complaint with the Principal. Hence, in both the cases it was a one sided affair. Expression of emotional feeling is natural. However it is not expected that a married teacher would pasture his student being a minor girl and emotionally blackmail her and force her to agree to his indecent proposal. Such crime is well covered by Article 81(b) quoted above.
Mr. Maity relied upon three Apex Court decisions in the case of Kendriyala Vidyalaya and Navodaya Vidyalaya.
In the case of Avinash Nagra _VS- Navodaya Vidyalaya Samiti and Others reported in 1997 Volume-II Supreme Court Cases Page-534, the Apex Court considered a case of the like nature where the concerned teacher was making his sexual advances towards a girl student. Despite being warned, he did not correct himself and mend his conduct. He rushed to the girls' hostel at the odd hours and persuaded the student to come out of her room by supplying misleading information to the girl through the guard. When the student saw him she rushed back to her 18 room and locked herself inside. The concerned teacher knocked the door. When her room mates told him that she was asleep he rebuked them. Considering such fact the Apex Court refused to interfere with the order of termination by observing that the conduct of the appellant was unbecoming of a teacher.
In the case of Director, Navodaya Vidyalaya Samiti and Other -VS- Babban Prasad Yadav and Another reported in 2004 Volume-XIII Supreme Court Cases Page-568, the Apex Court considered an identical situation when the concerned teacher indulged in immoral conduct by writing undesirable letters and making remarks to one of his students. The order of termination was held to be valid. In the case of Commissioner, K.V. Sangathan and Others - VS- Rathin Pal SLP (C) No.4627/2008, the Apex Court took the identical view. The Apex Court also considered the invocation of Article 81(b) of the Education Code and held it to be valid in the circumstances discussed therein.
19Mr. Negive Ahmed appearing in WPST 351 of 2007 tried to contend before us that there was anomaly in the statement made by the witnesses. He also tried to contend that since Shamolika was made the captain of the Kabadi Team by the concerned teacher the other fellow students were zealous and took a revenge. He also tried to contend that one of the girl students deposed that she would be happy if Shamolika was driven out of the school. She was however, silent about the delinquent. We do not find any relevance. The charge of immoral sexual conduct was proved to the hilt as discussed above. The delinquent was given adequate opportunity to defend himself in the said proceeding. Hence, the order of dismissal could not be faulted. In the other case Mr. Dutta, learned counsel appearing for the petitioner tried to contend that he was not afforded adequate opportunity to defend himself in the said proceeding. We are unable to appreciate his argument while examining the records annexed to the petition. Significant to note, Mr. Dutta did not offer any explanation on the factual matrix to show that the order of punishment was not sustainable.
20In both the cases we are amply convinced that the Tribunal very rightly declined to interfere with the order of termination. We do not have any scope to disagree with such well considered decisions.
The applications fail and are hereby dismissed.
There would be no order as to costs.
Urgent xerox photostat copy will be given to the parties, if applied for. Prabhat Kumar Dey, J:
I agree.
[ASHIM KUMAR BANERJEE,J.] [PRABHAT KUMAR DEY,J.]