Karnataka High Court
The Commissioner vs Shivaraj Hilalpur on 27 February, 2018
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY 2018
PRESENT
THE HON'BLE MR. JUSTICE H.G.RAMESH
AND
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
WRIT PETITION NO.34115/2016 (S-CAT)
BETWEEN:
1. The Commissioner
Kendriya Vidyalaya Sangathan
18th Institutional Area,
Saheed Jeet Singh Marg,
New Delhi 110016
2. The Deputy Commissioner
Kendriya Vidyalaya Sangathan,
Regional Office Bengaluru Region
K. Kamaraj Road,
Bengaluru 560 042
3. The Vice-Chairman,
Kendriya Vidyalaya Sangathan
18th Institutional Area,
Saheed Jeet Singh Marg,
New Delhi 110016
4. The Principal,
Kendriya Vidyalaya Sangathan
Kotnoor,
Gulburga 585 102 ...PETITIONERS
(BY SRI VISHNU BHAT, ADVOCATE)
W.P.No.34115/2016
2
AND:
Shivaraj Hilalpur,
S/o Ramanna Hilalpur,
Aged about 53 years,
Terminated to the post of
Trained Graduate Teacher,
Kendriya Vidyalaya Sangathan
Kotnoor,
Gulburga 585102
...RESPONDENT
(BY SRI P.A. KULKARNI, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 03.03.2016 PASSED BY THE CENTRAL ADMINISTRATIVE
TRIBUNAL BANGALORE IN O.A.NO.910/2014 AS PER ANNEXURE-F
AND CONSEQUENTLY DISMISS THE APPLICATION.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON
17.02.2018 AND COMING ON FOR PRONOUNCEMENT OF ORDER, THIS
DAY, B.M. SHYAM PRASAD, J., MADE THE FOLLOWING:
ORDER
The petitioners, the Administration of Kendriya Vidyalaya Sangathan (for short "KVS"), have filed this writ petition impugning the order dated 03.03.2016 passed by the Central Administrative Tribunal Bengaluru Bench, Bengaluru, (for short, "Tribunal"). The Tribunal by the impugned order while quashing the termination order dated W.P.No.34115/2016 3 05.12.2013 (Annexure-A32) by the Commissioner, KVS and the order dated 03.04.2014 (Annexure-A37) in appeal by the appellate authority, has directed commencement of the Departmental Enquiry against the respondent within one month from the date of the impugned order on the charge sheet already issued to the respondent with a further direction to conduct such enquiry on a day-to-day basis. The Tribunal has also directed that the respondent shall continue to be under suspension during the period of enquiry with the respondent being entitled to subsistence allowance.
2. The respondent was in service with Kendriya Vidyalaya, Kotnoor, Gulburga ( for short "Institution"), and was issued with the termination order dated 05.12.2013 after an enquiry under Article 81(B) of the Education Code for KVS. This order dated 03.03.2016 was a culmination of the complaints that were made by the girl students of class- VII to X to the inspection team, who brought such W.P.No.34115/2016 4 complaints to the notice of the Principal and advised the Principal to conduct an enquiry in accordance with the stipulated procedure and submit report to the Regional office. The Principal, in terms of the guidelines applicable, constituted a Committee of five members of the staff of the Institution to enquire into the charges leveled against the respondent. This Committee after recording the statement of the students, members of the faculty and the respondent, submitted a prima facie finding on 12.11.2009 concluding that there were instances of the respondent misbehaving with girl students and that such misbehavior amount to immoral behavior. Later, a Summary Enquiry Committee comprising of the members from, and outside, the Institution was constituted to submit a report on the charges leveled against the respondent after requisite proceedings. This Summary Enquiry Committee submitted its report on 06.01.2010 to the Assistant Commissioner, KVS.
W.P.No.34115/20165
3. The respondent at the first instance impugned the report dated 06.01.2010 which culminated in the order dated 03.03.2016 by the Division Bench of this Court. The Division Bench of this Court, without expressing any view on the merits of the case as regards the alleged misconduct, permitted the respondent to submit his representation against the report dated 06.01.2010 with further direction to the Commissioner, KVS to take proper course of action observing that if the Commissioner, KVS chooses to invoke Article 81 (B) of the Education Code for the KVS, he shall record reasons therefor. The respondent submitted the representation on 12.10.2013 to the Commissioner, KVS, who recording that the respondent is guilty of moral turpitude involving immoral sexual overtures towards girl students that constituted "misconduct" warranting invocation of Article 81(B) of the Education Code for KVS, concluded that he did not consider necessary to hold a regular enquiry under CCS(CCA rules 1965) W.P.No.34115/2016 6 contemplated for imposition of major penalty. The Commissioner, KVS further concluded that regular enquiry would be an embarrassment to the girl students and cause trauma to them in their tender age; that it would be hazardous to expose the young girl students to the torturous process of cross-examination which would be inevitable in regular enquiry impacting their studies and reputation and that there will be major concerns in the Institution and Society about the safety and security of the girl students. The Commissioner, KVS considered the contents of the Report dated 06.01.2010, the respondent's representation and documentary evidence available on record to conclude that the respondent was guilty of misconduct involving moral turpitude and by his order dated 05.12.2013 ordered termination of the respondent's services with immediate effect by giving three months' pay and allowances invoking the powers conferred under Article 81(B) of the Education Code for KVS. The appeal filed by W.P.No.34115/2016 7 the respondent impugning the order dated 05.12.2013 passed by the Commissioner, KVS, is dismissed by order dated 03.04.2014 by the Appellate Authority, Vice Chairman, KVS.
4. The respondent, being aggrieved by the Special Enquiry Committee report dated 06.01.2010, the termination order dated 05.12.2013 and the order dated 03.04.2014 in appeal by the appellate authority, preferred application in O.A.No.910/2014 before the Tribunal impugning these report/orders with a prayer for direction to the petitioners to reinstate the respondent to the post of Trained Graduate Teacher with all consequential benefits. The Tribunal by its impugned order has set aside the termination order dated 05.12.2013 and the order in appeal dated 03.04.2014 with direction for the commencement of the departmental enquiry as stated supra. W.P.No.34115/2016 8
5. The Tribunal has reasoned that the Tribunal in the earlier proceedings had not taken note of the letter dated 17.12.2009 filed before the Summary Enquiry Committee by the parent of one of the girl students, which is a retraction of the allegations made by the daughter against the respondent, and therefore, the Tribunal has to reconsider the evidence available and the Preliminary Enquiry Report. The Tribunal has also reasoned that it was, on the earlier occasion, carried away by the possible consequences of the young girls being subjected to torturous cross-examination while concluding that the Tribunal can take judicial note of the fact that the young girl students today are more informed and socially focused and that these young girls therefore can handle the rigours of cross-examination without being adversely affected. The Tribunal has further reasoned that the need for Departmental Enquiry is accentuated by the fact that the W.P.No.34115/2016 9 allegations by some of the students are vague and purposeless.
6. We have heard the learned Counsel for the petitioners and respondent.
7. The learned Counsel for the petitioners asserts that the Tribunal in exercise of powers of judicial review, which in any event is constricted, could not have re- appreciated the evidence or the report based on which the termination order and the order in appeal are made by the Competent Authorities respectively. It is further asserted by the learned counsel that the reasoning assigned by the first petitioner to invoke the powers under Article 81(B) of the Education Code for KVS is unexceptionable in asmuch as both the authorities have recorded definite reasons for dispensing with the Departmental Enquiry and concluding that there was evidence to establish that the respondent was guilty of moral turpitude involving sexual overtures towards the girl students. It is also contended by the W.P.No.34115/2016 10 learned Counsel for the petitioners that the impugned order of the Tribunal is contrary to the decision of the Division Bench of this Court in the Government of India Represented by Secretary, Ministry of Human Resource Development and Ors. Vs. Bhanu S Rathod.1
8. The learned Counsel for the respondent defending the impugned order of the Tribunal, while conceding that the Commissioner, KVS in terms of the Article 81(B) of Education Code could dispense with the Departmental Enquiry contemplated under the Service Rules, contended that both the Commissioner, KVS (who passed the termination order dated 05.12.2013) and the appellate authority have just incantated the requirement for invocation of such power under Article 81(B) of the Education Code without applying their mind to reasonably conclude that the respondent could be found guilty of moral turpitude involving sexual overtures, especially given the 1 ILR 2002 4911 W.P.No.34115/2016 11 fact that some of the parents have submitted their statement in writing that the respondent's conduct was good and not culpable.
9. The learned Counsel for the respondent also cited a decision of the Division Bench of Gauhati High Court in the case of Kendriya Vidyalaya Sangathan And Ors. Vs. Jerome Reman Kerketta2 to contend that because there was no specific complaint by a particular person or set of persons, both the proceedings before the Commissioner, KVS and the Appellate authority are vitiated.
10. In view of the rival contentions, the question for determination would be: Whether the Tribunal in exercise of its power of judicial review in terms of the provisions of the Administrative Tribunals Act, could have interfered with the orders of the Commissioner, KVS and the Appellate Authority?
2 (2017) 4 Gauhati Law Reports 482 W.P.No.34115/2016 12
11. The Hon'ble Constitution Bench of the Supreme Court in its reported decision in the case of Union of India & another V. Tulsiram Patel3, which is relied upon by the Division Bench decision of this Court in Rathod's case that is cited by the learned Counsel for the petitioners, has elucidated the limitations upon the exercise of powers of judicial review in those cases where the authorities exercise their discretion to dispense with the departmental enquiry under Service Rules. The Hon'ble Constitution Bench has declared that the courts can interfere with such discretionary decisions only if it could be shown that it would be reasonably practicable to hold an enquiry or if the charge against the delinquent is malafide or if the reasons assigned for holding that it would not be reasonably practicable to hold an enquiry are irrelevant. The Hon'ble Constitution Bench has also declared that while examining the relevance of the reasons assigned by the authorities, a 3 AIR 1985 SC page 1416 W.P.No.34115/2016 13 Court cannot sit in judgment like a Court of the first appeal and that in considering the relevance of such reasons the Court must put itself in the place of the disciplinary authority and consider what a reasonable man acting in a reasonable manner would have done in the then prevailing circumstances. These settled principles will have to be applied, in the opinion of this Court, in all vigour in those cases where the authorities exercise their discretion reasonably to dispense with regular inquiry involving charges of sexual overtures by teachers against young girl students.
12. It is therefore, incumbent upon this Court to examine whether the Tribunal by its impugned order in upsetting the termination order and the order in appeal was within the bounds for the exercise of power of judicial review as enunciated by the Hon'ble Constitution Bench. The Commissioner, KVS insofar as dispensing with the need for regular departmental enquiry as contemplated under the W.P.No.34115/2016 14 relevant Service Rules has concluded in the following terms:
"The Committee has collected evidences from the girl students, the parents, the Principal, K.V. Gulburga, as well as from the charged official. Almost all the girls as well as the parents were adamant about the immoral and indecent behaviour of Shri Shivaraj. The Committee, accordingly, was of the opinion that there was conclusive evidence of Social Studies Teacher displaying immoral behaviour with sexual intonation towards the girl students. He has dared to touch them, hug them, making them feel uncomfortable and belitteling them in the presence of boy students. I also find that the Hon'ble CAT Bangalore Bench in its Order dated 19.6.2013 observed that the statement of the girl students do not indicate that they were tutored or that they have ganged up to give false complaints against the applicant to indicate that a case was cooked up against the applicant.
In view of the above, the undersigned considers that the teacher is guilty of moral turpitude involving exhibition of immoral sexual behaviour towards girl students which constituted misconduct and therefore invocation of Article 81(B) of Education Code for KVs was warranted. The undersigned also does not consider it necessary to hold a regular inquiry as is being conducted in the case of major penalty proceedings under Rule 14 of CCS(CCA) Rule, 1965 which would be an embarrassment to the girl students and could cause a trauma for them because of their tender age. It is very hazardous to expose these young girls for tortuous process of cross- examination during the conduct of regular inquiry and would have an effect of exposing them to further insult that would carry such an impact in the mind of the students which not only hamper their studies but also in the society their reputation would go down. The safety and security of such girl students would therefore be a major concern in the School and in the Society. "W.P.No.34115/2016 15
13. The Appellate Authority after elaborate discussion on the facts and circumstances of the case as borne out by the available record has concluded that the order of termination by the Commissioner, KVS dispensing with regular departmental enquiry was reasonable and justifiable.
14. The authorities, in the background of the allegations against the respondent that he had tried to hug girls, made lewd remarks and attempted inappropriate physical contact with young girl students, have specifically concluded that the girl students of tender age would be embarrassed by the torturous process of cross-examination and that exposing these young students to elaborate and protracted proceedings would not only put them to further insult, but also hamper their psyche, studies and reputation apart from creating a major concern in the Institution and the Society about the safety and security of the young girl students in the Institution. This reasoning, given the W.P.No.34115/2016 16 context of the allegations against the respondent, would not only be permissible, but also entirely justified given the purpose and object of the vesting in the Commissioner, KVS, under Article 81(B) of the Education Code for KVS, the power to terminate a delinquent by dispensing with the formal enquiry under the Service Rules.
15. The Tribunal, given the declaration of law on the limits upon exercise of powers of judicial review by the Hon'ble Constitution Bench, could not have interfered with the orders by the competent authority without justifiably reasoning that the allegations against the respondent are malafide or that the reasons assigned by the competent authorities to dispense with regular enquiry are irrelevant, and definitely, the Tribunal could not have interfered with these orders without recording how, given the interests considered by the competent authorities, a departmental inquiry could be reasonably and practicably held. The Tribunal also erred in not considering that the competent W.P.No.34115/2016 17 authorities had come to their conclusion on the respondent's culpability on a compendious consideration of the material available on record; and the reasoning by the Tribunal that it can take judicial note of what it perceives as the improved abilities of young girls of today to protect themselves against the vagaries of protracted process of cross-examination is entirely unjustified, especially because no data, emphrical or otherwise, was placed before, or discussed by, the Tribunal. Therefore, perforce, it has to be concluded that the impugned order of the Tribunal is in an irregular exercise of the powers of judicial review and that the same is liable to be set aside.
16. Further, the decision reported in Kendriya Vidyalaya Sangathan and Ors. Vs. Jerome Reman Kerketta and cited by the respondent is of no avail to the respondent as the case before the Hon'ble Division Bench of Gauhati High Court related to proceedings emanating from the allegations against a teacher asking unnecessary W.P.No.34115/2016 18 questions, while in the present case the genesis is the complaints made by a set of young girl students to an inspection team of senior officials of the Kendriya Vidyalaya Sangathan against the respondent making odious sexual overtures to them.
Accordingly, the order dated 03.03.2016 in O.A.No.910/2014 on the file of Central Administrative Tribunal, Bengaluru Bench, Bengaluru, is set aside by restoring the termination order dated 05.12.2013 issued by the Commissioner, Kendriya Vidyalaya Sangathan and the order dated 03.04.2014 by the Appellate Authority/Vice Chairman, Kendriya Vidyalaya Sangathan.
The petition is allowed and no costs.
Sd/-
JUDGE Sd/-
JUDGE Psg*