Gujarat High Court
Kasim Ibrahim Sumra S/O Late Ibrahim ... vs Kendriya Vidyalaya Sangathan on 6 March, 2018
Author: A.Y. Kogje
Bench: M.R. Shah, A.Y. Kogje
C/SCA/1382/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1382 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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KASIM IBRAHIM SUMRA S/O LATE IBRAHIM HASAM SUMARA
Versus
KENDRIYA VIDYALAYA SANGATHAN
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Appearance:
MR MS RAO for the PETITIONER(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 06/03/2018
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.Y. KOGJE)
1. This petition under Article 226 and 227 of the Constitution of India is challenging the proprietary and legality of the order dated 06.05.2016 passed by learned Central Administrative Tribunal, Ahmedabad Bench in O.A. Page 1 of 13 C/SCA/1382/2018 JUDGMENT No. 386/2012 filed by the petitioner by the impugned order the Central Administrative Tribunal, Ahmedabad Bench declined to interfere with the order of termination passed against the petitioner after due inquiry.
2. The facts in brief are as under.
3. The petitioner was employed as Laboratory Attendant and was posted in Kendriya Vidyalaya, Air Force Station, Naliya at the relevant time.
4. A complaint was made against the petitioner by the parents of a female student studying in class 7th-B that she was subjected to sexual harassment at the hands of the petitioner. A preliminary inquiry was conducted by a committee constituted by the Principal and the petitioner was placed under suspension, the committee constituted came to the conclusion that the committee could not come to consensus with regards to content of the complaint against the petitioner.
5. It appears thereafter, the Assistant Commissioner, KVS, Ahmedabad region conducted a inquiry by constituting a committee consisting of teachers from various areas serving in Kendriya Vidyalaya. This committee submitted a report dated 11.09.2007 holding that the complaint was genuine. Page 2 of 13
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6. It appears that yet another inquiry committee was constituted to ascertain the contents of the complaint, and this committee recorded the statements of a victim girl, her parents, the then officiating Principal, the students, the teachers and that of the petitioner. This committee submitted its report on 23.02.2008 concluding that the behavior of the petitioner amounted to moral turpitude involving immoral sexual behavior. The report was placed before the Commissioner, KVS Head Quarters based on which show cause notice dated 22.04.2008 was issued thereby exercising the powers under Article 81(B) of the Education Code for KVS. In reply to the show cause notice the petitioner submitted his representation dated 05.05.2008, however, by order dated 26.06.2008 the Commissioner terminated the services of the petitioner and thereafter, the petitioner came to be relieved.
7. The petitioner preferred departmental appeal within the prescribed period, however, such appeal remained pending before the Appellate Authority as a result of which the petitioner filed O.A. No. 84-2009 before the Central Administrative Tribunal, Ahmedabad Bench. Notice came to be issued on such application by the tribunal and it appears Page 3 of 13 C/SCA/1382/2018 JUDGMENT that, thereafter the appeal of the petitioner before the Appellate Authority came to be rejected by and order dated 31.03.2009, in view of this development the petitioner moved an amendment application to amend the O.A. No. 84 of 2009 to include in his challenge the order of rejection of his appeal. O.A. No. 84 of 2009 came to be disposed of by order dated 18.11.2009 the tribunal was pleased to remit the matter back to the Appellate Authority to decide the appeal having regard to the law as explained in order of the tribunal and after taking into consideration the provisions of KVS Code and circulars issued if any by KVS as per Article 81(D) (15) the order also provided for an opportunity of personal hearing. The order also provided for the respondents to place the applicant under deem suspension.
8. It appears that upon the remand by tribunal the matter was taken up by the Appellate Authority and the final decision on the petitioners appeal was taken by order dated 10.03.2010 whereby, the appeal preferred by petitioner stood rejected. Once again the petitioner filed a substantive application O.A. No. 220 of 2011 challenging the order of Appellate Authority dated 10.03.2010. It was mainly contended in the application before the tribunal that while passing the impugned order the Appellate Authority had not Page 4 of 13 C/SCA/1382/2018 JUDGMENT taken into consideration the views expressed by the Hon'ble Tribunal in its previous order dated 18.11.2009 especially the observations contained in para 21 of such order. The tribunal passed final orders in O.A. No. 220 of 2011 quashing the order dated 10.03.2010 of the Appellate Authority with the direction to pass orders afresh within period of two months after considering all the observations/ directions contained in the order of the tribunal dated 18.11.2009 in O.A. No. 84 of 2009.
9. It appears that as a respondent authorities were not taking decision within time period prescribed by the tribunal in its order dated 20.03.2012 in O.A. No. 220 of 2011. The petitioner preferred a Contempt Petition 25 of 2012, notice came to be issued by the tribunal and thereafter, the authorities passed an order dated 07.06.2012 regarding the status of the petitioner as well as his subsistence allowance. Thereafter, considering the case of the petitioner on merits the appeal of the applicant came to be rejected by an order dated 28/30.07.2012.
10. Once again the petitioner filed O.A. No. 386 of 2012 before the tribunal challenging the legality and validity of the order dated 28/30.07.2012 bearing file no. 12061(4- Page 5 of 13
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3)/AP/2009-KVS/Vig. It appears from the record that in the afore mentioned O.A. written reply came to be filed on 15.01.2013 to which the petitioner filed his rejoinder dated 31.02.2013. The tribunal took up the matter for final hearing on 02.05.2016 and pronounced the final order on 06.05.2016 whereby, the application of the petitioner was dismissed thereby upholding the order of termination. It is this order which is now the subject matter of challenge.
11. Heard learned advocate Mr. M.S. Rao for the petitioner.
12. Learned advocate for the petitioner vehemently submitted that the petitioner has been highly discriminated and the entire proceedings against applicant were influenced by the father of the so called victim, who was at the relevant point of time serving as a High Rank Officer posted in Indian Air Force at Naliya. It is also submitted that the proceedings against the petitioner was on account of the fact that the wife of the petitioner was running the canteen at Kendriya Vidyalaya, Air Force, Naliya and the mother of the victim had an eye on taking over such canteen.
13. It is further submitted that the procedure adopted by the authorities was completely faulty in as much as the constituting of the summary inquiry committee is not provided Page 6 of 13 C/SCA/1382/2018 JUDGMENT for under the code governing the working of Kendriya Vidyalaya. It is also submitted that such an action of constituting second committee is not tenable more particularly when the first committee constituted for the very purpose had clearly reported that the committee was unable to come to a definite conclusion regarding genuineness of the complaint. It is submitted that the constitution of summary inquiry committee was also under the influence of such High Ranking Air Force Officer. It is further submitted that the power to constitute summary inquiry procedure is only with the Commissioner, whereas, in the present case it was the Assistant Commissioner, KVS Ahmedabad Region who had ordered for the summary inquiry procedure by Constituting a Committee.
14. Learned advocate for the petitioner has assailed the order of the tribunal on the ground that the tribunal has erred in law on interpreting the ruling of the Apex Court rendered in case of Vishaka and others V/s State of Rajasthan and others reported in (1997) 6 SCC 241. He also submitted that the tribunal has erred in placing reliance on the ruling of the Apex Court in the case of Kendriya Vidyalaya Sangthan V/s J. Hussain reported in (2013) 10 SCC 106.
15. Learned advocate submitted that the tribunal has not Page 7 of 13 C/SCA/1382/2018 JUDGMENT taken into consideration its own order dated 18.11.2009 in O.A. No. 84 of 2009 wherein, the tribunal has questioned the procedure in para 21 of its order. The subsequent procedure adopted by the authority was also not in consonance with such observations and spirit of the directions given by the tribunal, still the tribunal by the impugned order proceed to uphold the action taken by authority and the decision passed on such action.
16. Learned advocate submitted that the tribunal ought to have taken into consideration the guidelines laid by the Apex Court in case of Vishaka (Supra) and that it would have been necessary that the complaints committee appointed for inquiry consisted of a third party or an NGO in absence of these constituents in the complaints committee the procedure adopted by the authority was not in consonance with the guidelines of the Apex Court in the case of Vishaka (Supra).
17. He therefore, submitted that entire procedure adopted by the authority is vitiated and therefore, the decision is also vitiated. Hence, he has prayed for quashing and setting aside the order of termination as well as the impugned order of the CAT.
18. We have heard learned advocate for the petitioner at Page 8 of 13 C/SCA/1382/2018 JUDGMENT length and have perused the documents on record. It appears that the petitioner was issued a show cause notice on account of his misconduct/ misbehavior as a Laboratory Assistant in the school, where the victim Kumari Shivangi Sethi was studying in standard 7th-B. Kumari Shivangi Sethi happens to be daughter of Wing Commander Jitendra Sethi and her mother was also a teacher in the school. The complaint was made in connection with incident on 17.03.2007 wherein, it was narrated that on the previous day student Shivangi was sitting in the middle on the first day of the exam but the petitioner asked her to come and sit facing him, and she was made to sit on the same table facing the petitioner. The petitioner kicked student Shivangi with his legs and Shivangi immediately took her leg away. Thereafter, also the petitioner continued to kick her on her legs. Upon completion of the exams the boys left the exam room. The petitioner bolt the door of the exam room from inside and gave answer sheet of one of the boys to student Shivangi, which she refused to take the paper, it is stated that similarly other girls were also given papers of the boys for copying. The other girls after completing their exams left the room while student Shivangi continued to write the exam. When she was alone the petitioner had bolted the door and window and started Page 9 of 13 C/SCA/1382/2018 JUDGMENT molesting the student Shivangi. He also issued threat that if she discloses this, her younger sister who is studying in the same school will also be harassed. The committee had recorded the statements of student Shivangi herself, her father Wing Commander Jitendra Sethi, her Mother Vandana Sethi, the students who had wrote the exam along with student Shivangi and eight other teachers. On the strength of the nature of such complaint the school authorities constituted a committee consisting of local teachers and first report was received, which concluded that the committee is unable to give an authoritative statement regarding the truth of the incident and also an authenticity of the complaint. As the said report remains in-conclusive a new committee was appointed consisting of members belonging to Kedriya Vidyalaya School. This committee called for the written statements from the student Shivangi herself, her father Wing Commander Jitendra Sethi, her Mother Vandana Sethi, the students who wrote the exam along with student Shivangi and eight other teachers. From the report it appears that, the student who were in examination had supported the version given in the complaint. It appears that the authority for its own satisfaction appointed yet another committee which consisted of members from different Kendriya Vidyalaya Page 10 of 13 C/SCA/1382/2018 JUDGMENT Schools. This committee also independently examined the version of the witnesses, which included the student and the committee came to the conclusion that as per the evidence on record the inquiry committee confirmed that the complaint made against the petitioner by Wing Commander Jitendra Sethi about his misbehavior, moral turpitude involving immoral sexual behavior. Based on this the proceedings were initiated in the education code in the perusal of record revealed with sufficient opportunity was given to the petitioner to offer his explanation and defend his case. The perusal of his explanation reveals that the petitioner has emphasized on the procedural lapse and on the fact that, he was sought to be victimized on account of the interest of the mother of the victim student in running the canteen. The Court had independently considered such stand of the petitioner and from the perusal of the record it clearly appears that the father of the victim is a high rank officer in the Air Force and the mother herself was a teacher. Therefore, such explanation of petitioner is not at all tenable and is rightly rejected by the authorities as well as by the tribunal.
19. The submissions regarding the procedural lapse more particularly constitution of two summary inquiry committees, Page 11 of 13 C/SCA/1382/2018 JUDGMENT when the first report was already there, this Court is of the view that perusal of the first report would reveal that the committee was unable to come to any definite conclusion, moreover, it is observed that the first report submitted by committee was consisting of the local teachers of the same school, which in any case can not be considered to be an independent report. It appears that on account of in- conclusive nature of report the authorities were justified in constituting another committee, which consisted of senior teachers from school other than the school where the incident took place. This committee after examining all the concerned, which included the co-students of the victim found the petitioner guilty of the misconduct of moral turpitude involving immoral sexual behavior. This Court does not find any reason for doubting the findings of the committee report. Moreover, nothing is pointed out on behalf of the petitioner that any provision exists in the education code, which would prohibit the constitution of the summary inquiry report as is done in the present case.
20. This Court finds that the tribunal has given proper reasons while dismissing the application of the petitioner. The Court also finds that the reliance placed by the tribunal on the judgment of J. Hussain (Supra) was justified and that the Page 12 of 13 C/SCA/1382/2018 JUDGMENT reliance on the observations of the Apex Court in case of Vishaka (Supra) is justified. The Court is in agreement with the observations of the tribunal regarding the applicability of the guidelines in case of Vishaka (Supra) to the facts of the present case to the extent that merely because no NGO or independent third party is not part of the committee, which inquired would not vitiate the report of the committee or the inquiry procedure.
21. Over and above the findings of the tribunal, this Court also independently on perusal of the record is of the view that procedure adopted by authorities and the findings given on basis of evidence needs no interference in the order of the tribunal as well as the order of termination dated 06.05.2016 in O.A. No. 386 of 2012 or the Order of Termination bearing F No. 10-6-2007-KVS-(Vig) dated 26.06.2008 or the order of the Appellate Authority dated 28.07.2012. In view of the aforesaid the petition stands dismissed. No order as to costs.
(M.R. SHAH, J) (A.Y. KOGJE, J) URIL Page 13 of 13