Kerala High Court
Moses Packiamony vs Union Of India on 20 October, 2020
Bench: A.M.Shaffique, P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
TUESDAY, THE 20TH DAY OF OCTOBER 2020 / 28TH ASWINA, 1942
OP (CAT).No.117 OF 2017(Z)
AGAINST THE ORDER IN OA 80/2015 DATED 08-03-2017 OF CENTRAL
ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONER/APPLICANT:
MOSES PACKIAMONY
AGED 55 YEARS
S/O.P.ASHIRVATHAM, PHYSICAL EDUCATION TEACHER
(TERMINATED), JAWALAR NAVODAYA VIDYALAYA (JNV),
EXTENSION TRAINING CENTER,KOTTARAKARA, RESIDING
AT 1/180, SOUTH THAMARAIKULAM, KANYAKUMARI
DISTRICT, TAMIL NADU-629701
BY ADVS.
SRI.K.GOPALAKRISHNA KURUP (SR.)
SRI.B.HARISH KUMAR
SMT.K.R.RENJU
RESPONDENTS/RESPONDENTS:
1 UNION OF INDIA,
REPRESENTED BY THE SECRETARY,
MINISTRY OF HUMAN RESOURCES DEVELOPMENT,
DEPARTMENT OF SCHOOL EDUCATION AND LITERACY,
SASTHRI BHAVAN, NEW DELHI-110001
2 THE COMMISSIONER
NAVODAYA VIDYALAYA SAMITHI, B-15, INSTITUTIONAL
AREA, SECTOR 62, NOIDA, UTTAR PRADESH-201307
OP(CAT) No.117/2017
-:2:-
3 THE DEPUTY COMMISSIONER
NAVODAYA VIDYALAYA SAMITHI, HYDERABAD REGION,
H.NO.1-1013 S.D.ROAD, SECUNDERABAD,
ANDHRA PRADESH-500003
4 THE PRINCIPAL
JAWAHAR NAVODAYA VIDYALAYA (JNV), EXTENSION
TRAINING CENTER,KOTTARAKARA, KOLLAM-691531
R2-4 BY ADV. SRI.MILLU DANDAPANI,
SC, NAVODAYA VIDYALAYA SAMITI
ASGI- FOR R1
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 06-10-2020,
THE COURT ON 20-10-2020 DELIVERED THE FOLLOWING:
OP(CAT) No.117/2017
-:3:-
"C.R."
JUDGMENT
Dated this the 20th day of October, 2020 Shaffique, J.
This original petition is filed by the applicant in OA No.80/2015 challenging order dated 8/3/2017 of the Central Administrative Tribunal, Ernakulam Bench. The petitioner filed the Original Application challenging the disciplinary action taken against him by the management of Navodaya Vidyalaya Samiti. The petitioner started his service in the Navodaya Vidyalaya Samiti as a Physical Education teacher since 25/2/1993. While working at Jawahar Navodaya Vidyalaya, a complaint came to be filed against him alleging immoral sexual behaviour towards a girl student studying in the 11th Standard. Disciplinary authority conducted enquiry and by order dated 5/11/2013, he was terminated from service. He preferred an appeal, which also came to be rejected. Petitioner therefore filed OA No.80/2015 before the Central Administrative Tribunal inter alia contending that there was procedural irregularity in conducting the enquiry, that he was not supplied with any of the complaint, documents or OP(CAT) No.117/2017 -:4:- the statement of the victim or the witnesses, that the findings in the enquiry was not communicated to him and on account of which, there is violation of principles of natural justice.
2. The Tribunal however rejected the plea of the petitioner and sustained the order passed by the disciplinary authority. While impugning the aforesaid order, learned Senior Counsel Sri.K.Gopalakrishna Kurup submits that the factual aspects involved in the case would disclose that there is clear violation of principles of natural justice. Learned counsel points out that the applicant was suspended from service on 4/1/2013 pending disciplinary proceedings. He submitted a representation dated 29/1/2013 as against the order of suspension. He stated that the allegations were not true. He received the communication dated 26/2/2013 stating that a Committee has been constituted to conduct a summary trial in terms of the Samiti's notification dated 20/12/1993. The applicant appeared before the Committee and stated that he is innocent of the allegations levelled against him. Later, his period of suspension was extended. However, without anything further, he was served with an order of termination dated 31/10/2013 (Annexure A7), OP(CAT) No.117/2017 -:5:- which was followed by the communication dated 5/11/2013 (Annexure A8) issued by the Principal of the School. Learned counsel submits that a preliminary enquiry was conducted by the Principal on 13/10/2012 and the victim and a housemistress are seen to have been examined. A show cause notice had been issued to him on 17/10/2012 for which he had given a reply on 19/10/2012. Without issuing any charge memo, he was called upon for a hearing at Noida. He was permitted to examine the documents and peruse the statements at Noida. Subsequently, members of the Committee came to Kerala and the victim and witnesses were examined on 18/4/2013 and thereafter a report was submitted on 4/1/2014. As far as the petitioner is concerned, he was given a show cause notice on 17/10/2012, for which he had given a reply on 19/10/2012. The Committee had heard him on 26/3/2013 at Noida. Thereafter, he was not made known about the findings of the Committee, its report or any other material. Learned Senior Counsel would submit that the procedure adopted by the management is a summary enquiry as evident from the notification dated 20/12/1993. It is pointed out that though the Director can dispense with a regular enquiry on account of OP(CAT) No.117/2017 -:6:- serious embarrassment to the student or his guardian, or on account of other practical difficulties, it is incumbent on the part of the disciplinary authority to provide a copy of the report available after the summary enquiry. Failure to give such a report after the summary enquiry amounts to violation of principles of natural justice. Learned counsel placed reliance on the judgment of the Apex Court in Avinash Nagra v. Navodaya Vidyalaya Samiti and Others [(1997) 2 SCC 534]. The Apex Court held that when there are allegations of sexual abuse against girl children, regular enquiry can be dispensed with and not providing opportunity for cross-examination does not amount to violation of principles of natural justice. Learned counsel however would submit that, that was a case in which, after issuing the show cause notice, together with statement of the girl and other witnesses, and after receiving his explanation, a report was drawn which was submitted to the Court wherein there is a finding that appellant is guilty of moral turpitude involving exhibition of immoral sexual behaviour. It is pointed out that when the said petition had come up for admission, counsel insisted for enquiry to be conducted against the alleged OP(CAT) No.117/2017 -:7:- misconduct and the Apex Court directed the management to issue show cause notice, to conduct an enquiry and submit a report. It is only under the aforesaid factual circumstances that such a view had been taken by the Apex Court. Learned counsel also referred to a judgment of the learned Single Judge of this Court in Sibu v. Air India Ltd. [2016 (2) KLT 374]. That was a case in which this Court was considering the scope of enquiry with reference to a complaint filed under the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013. It was held that as per the rules framed under the Act, the Committee has to follow the principles of natural justice and finally it was held at paragraph 17 as under:-
"17. The fundamental principles relating to the principles of natural justice is that when a prejudicial statements are made, the same shall not be used against any person without giving him an opportunity to correct and contradict. In sexual harassment complaint, sometimes the complainant may not have courage to depose all that has happened to her at the work place. There may be an atmosphere restraining free expression of victim's grievance before the Committee. The privacy and secrecy of such victims' also required to be protected. It is to be noted that verbal cross examination is not the sole criteria to controvert or contradict any statement given by the aggrieved before any authority. Primarily, in a sexual OP(CAT) No.117/2017 -:8:- harassment complaint, the committee has to verify and analyse the capability of the aggrieved to depose before them fearlessly without any intimidation. If the Committee is of the view that the aggrieved is a feeble and cannot withstand any cross examination, the Committee can adopt such other measures to ensure that the witnesses statement is contradicted or corrected by the delinquent in other manner. The fair opportunity, therefore, has to be understood in the context of atmosphere of free expression of grievance. If the Committee is of the view that the witness or complainant can freely depose without any fear, certainly, the delinquent can be permitted to have verbal cross examination of such witnesses. In cases, where the Committee is of the view that the complainant is not in a position to express freely, the Committee can adopt such other method permitting the delinquent to contradict and correct either by providing statement to the delinquent and soliciting his objections to such statement ."
A judgment of the Karnataka High Court in Government of India and Others v. Dhanu S. Rathod [ILR 2002 KAR 4911] has been relied upon. That was a case in which the Karnataka High Court was considering as to what should be the nature of enquiry that should be conducted in the matter. Rule 81(b) of the Education Code of Kendriya Vidyalayas indicated that if the Commissioner is satisfied after a summary enquiry that any member of Kendriya Vidyalaya is prima facie guilty of moral turpitude involving sexual offence or exhibition of immoral sexual OP(CAT) No.117/2017 -:9:- behaviour towards any student, he can terminate the service of that employee by giving him one month's notice or three months' pay and allowances. In such cases, procedure for holding enquiry for imposing major penalty is not required and the Commissioner shall record in writing reasons why it is not practical to do so. The Karnataka High Court after placing reliance on the judgment in Avinash Nagra (supra) held that compliance with principles of natural justice does not require holding a full-fledged regular enquiry in all situations and circumstances. In extra ordinary circumstances, where it is reasonably impracticable to hold a regular enquiry, a summary enquiry will be adequate compliance of principles of natural justice. It was further held that a summary enquiry is gathering of evidence by way of statements from the complainant and witnesses and making available the same or purport thereof in the form of a report along with the charge to the concerned employee and giving an opportunity to show cause. It is further held that no process of collecting evidence and assessing its effect can be called an enquiry either regular or summary, unless the person against whom it is held is permitted to participate in it or at least given an opportunity to deny the OP(CAT) No.117/2017 -:10:- charge or show cause against the material proposed to be used against him. It was finally held at paragraphs 20 and 21 as under:-
"20. The term 'summary enquiry' occurring in Article 81(b) cannot be interpreted as denying any kind of opportunity to show cause to an employee, as contended by the petitioners. Apart from the fact that such an interpretation is unwarranted by the wording of the rule, it will give room to misuse of the provision, to get rid of any employee by dubbing him to be a sexual pervert or a person guilty of moral turpitude. In this case the Commissioner at New Delhi, has passed the order of termination. He has not held a summary enquiry. He has merely acted on the report of the Assistant Commissioner based at Bangalore. The incident/s allegedly occurred in Kudremukh. The respondent has specifically alleged mala fides against the Chairman of the local Kendriya Vidyalaya. If the Commissioner does not even hear or grant an opportunity to the employee to deny the charge or show cause in regard to evidence collected, there will be violation of Article 81(b) which requires a summary enquiry. Further, giving an opportunity to the respondent to show cause or giving him a personal hearing will in no way embarrass the students or their parents, nor will it delay the proceedings. The termination under Article 81(b) being an exception to the general rule, the requirements thereof should be strictly followed.
21. We find that the Tribunal has rightly held that the basic principle of natural justice, that is giving an opportunity to show cause cannot be dispensed with. All that we have to OP(CAT) No.117/2017 -:11:- clarify is that reservation made to the Sanghathan to take action will not require the Sanghathan to hold a regular enquiry permitting cross-examination of the complainant/s or witnesses of the management. It will be sufficient if opportunity as contemplated in Avinash Nagra's case, supra, is given, if it wants to take further action, that is, issue a show-cause notice containing the charge and the facts in support of the charge together with the statements recorded in the preliminary enquiry and the findings of the preliminary enquiry and give an opportunity to the respondents to submit his explanation and thereafter consider the same and pass appropriate orders. In that event it is open to petitioners to keep the respondent under suspension till the process is completed."
Yet another judgment relied upon is judgment dated 28/11/2013 of the Karnataka High Court in WP(C) No. 12682/2011 [Union of India and others v. S.B.Sankdavar]. In that case, after referring to Dhanu S. Rathod (supra), it was held at paragraph 6 as under:-
"6. In the said judgment, this court has observed that the summary enquiry does not empower the authority to dismiss or remove an employee without giving opportunity of hearing, on the charge or to have his say with regard to the evidence. It is also observed that giving opportunity to the respondent to show cause or giving personal hearing is a must but without causing embarrassment to the student or parent. In the matter on hand, even before this court, OP(CAT) No.117/2017 -:12:- the Inquiry report is not furnished. In this view of the matter, we do not find any ground to interfere with the impugned order in as much as the tribunal is correct in directing the petitioners to conduct denovo enquiry. However, we direct the petitioners to take note of the observations made by this court in the case of Dhanu S. Rathod, cited supra before proceeding further against the respondent."
3. On the other hand, learned counsel appearing for the management would argue that the management has complied with all the necessary formalities as required in such cases and the contrary contention is totally out of place. It is submitted that petitioner admits the fact that a show cause notice had been issued to him and he had given his reply. The Tribunal had the occasion to verify the entire file and it is after verifying the same that the Tribunal had arrived at the aforesaid finding and therefore there is no reason for any interference.
4. The Tribunal after verifying the file had observed that a complaint was given by the victim to the Housemistress on 2/10/2012. The victim did not even disclose to her mother about the said incident. From the complaint, the Tribunal noticed that the victim had disclosed the misbehaviour by the delinquent teacher to her friends. Those three girls and the victim had given OP(CAT) No.117/2017 -:13:- separate letters to the Housemistress. A preliminary enquiry was conducted by the Principal on 13/10/2012 in the presence of victim's mother and the Housemistress and thereafter, after getting a complaint on 16/10/2012, show cause memo was issued to the applicant on 17/10/2012 to which he submitted a written reply on 19/10/2012 stating that the allegations are false and that no such incident had taken place. Therefore, it is rather clear that a show cause notice was issued to him, he was aware of the allegations in the complaint and he had given a reply on 19/10/2012, which fact apparently was not mentioned anywhere in the Original Application. Thereafter, he was examined on 26/3/2013 by the Committee. The victim girl was examined on 18/4/2013 by the Committee. She did not change her stand before the Committee. Other witnesses were examined by the Committee on the same day.
5. From the aforesaid factual background available in the case, the only question to be considered is whether the enquiry conducted in the matter was sufficient to issue an order of termination or whether the procedure adopted by the respondents amount to violation of the principles of natural OP(CAT) No.117/2017 -:14:- justice. The relevant rule in terms of the notification dated 20/12/1993 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 the Navodaya Vidyalaya is prima facie guilty of moral turpitude involving sexual offence or exhibition of immoral sexual behaviour towards any student, he can terminate the services of that employee by giving him one month's 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 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 of account of serious embarrassment to the student or his guardians or such other practical difficulties. The Director shall record in writing the reasons under which it is not reasonably practicable to hold such enquiry and he shall keep the Chairman or the Samiti informed or the circumstances leading to such termination of services."
Apparently, the Director, for reasons to be recorded, can dispense with a regular enquiry and what is required is only a summary enquiry "as he deems proper and practicable in the circumstances of the case". Each case will have to be considered OP(CAT) No.117/2017 -:15:- on its own facts. The judgment in Sibu's case (supra) cannot have any application to the factual aspects involved in the case as the law is well settled by the Apex Court in Avinash Nagra (supra). Paragraph 12 of the judgment reads as under:-
"12. It is axiomatic that percentage of education among girls, even after independence, is fathom deep due to indifference on the part of all in rural India except 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 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. The teacher who has been kept in charge, bears more added higher responsibility and should be more exemplary. His/her character and conduct should be more like Rishi and as loco parentis 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-fledged enquiry as demanded by him? The fallen standard of the appellant is the tip of the iceberg in the discipline of teaching, a noble and learned profession; it is for each teacher and collectively their body to stem the rot to OP(CAT) No.117/2017 -:16:- sustain the faith of the society reposed in them. Enquiry is not a panacea but a nail in the coffin. It is self-inspection and correction that is supreme. 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. It is seen from the record that the appellant was given a warning for his sexual advances towards a girl student but he did not correct himself and mend his conduct. He went to the girls' hostel at 10 p.m. in the night and asked the hostel helper, Bharat Singh to misguide the girl by telling her that Bio-Chemistry Madam was calling her; believing the statement, she came out of the hostel. It is the admitted position that she was an active participant in cultural activities. Taking advantage thereof, he misused his position and made sexual advances towards her. When she ran away from his presence, he pursued her to the room where she locked herself inside; he banged the door. When he was informed by her roommates that she was asleep, he rebuked 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 the Enquiry Officer, namely, Asstt. Director. 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 OP(CAT) No.117/2017 -:17:- 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 parentis 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."
Of course, in that case, when the matter came up for hearing, the management was directed to issue show cause notice to the petitioner, conduct an enquiry and submit a report within a specified time. Even in that case, the management was only asked to issue a show cause notice, get a reply, conduct an OP(CAT) No.117/2017 -:18:- enquiry and submit a report. Contention was urged that delinquent officer was not given an opportunity to cross-examine the victim and witnesses. But the Apex Court held that dispensing with regular enquiry and denial of cross-examination are legal and not vitiated by violation of the principles of natural justice. When we apply the said principle, the contention urged by the learned counsel for petitioner that after an enquiry, the report has to be supplied and the delinquent should be called upon to answer the findings thereon cannot be justified.
6. The position of law in that regard is covered by the judgments in Ajit Kumar v. State of Jharkhand [(2011) 11 SCC 458] and Director, Navodaya Vidyalaya Samiti v. Babban Prasad Yadav [(2004) 13 SCC 568]. In Ajit Kumar's case (supra), the delinquent officer was a Subordinate Judge. Allegation was that, judgments were written by somebody else. It was held at paragraphs 9 to 12 as under:-
"9. Article 311 provides for the protection to public servants against punitive action being taken against them by an authority subordinate to one who appointed them. Exceptions to Article 311 have been provided in clauses (a), (b) and (c) (sic of the second proviso) to clause (2) of Article 311 itself, which OP(CAT) No.117/2017 -:19:- provide that the said article shall not apply to such employees who have been punished for conviction in a criminal case, where inquiry is not practicable to be held for reasons to be recorded in writing or where the President or the Governor as the case may be is satisfied that such an inquiry is not to be held in the interest of the security of the State.
10. In order to appreciate the power to be exercised under Article 311 of the Constitution of India, it would be appropriate to look at Article 310 of the Constitution of India. Under the doctrine of pleasure, which has been recognised under our constitutional framework, all civil posts under the Government are held at the pleasure of the Government under which they are held and are terminable at its will. The aforesaid power is what the doctrine of pleasure defines, which was recognised in the United Kingdom and also received the constitutional sanction under our Constitution in the light of Article 310 of the Constitution of India. However, it is to be noticed that in India the same is subject to other provisions of the Constitution which include the restrictions imposed by Article 310(2) and Articles 311(1) and (2). Therefore, under the Indian constitutional framework, dismissal of civil servants must comply with the procedure laid down in Article 311 and Article 310(1) cannot be invoked independently with the object of justifying a contravention of Article 311(2).
11. There is an exception provided by way of incorporation of Article 311(2) with sub-clauses (a), (b) and (c). No such enquiry is required to be conducted for the purposes of dismissal, removal or reduction in OP(CAT) No.117/2017 -:20:- rank of persons when the same related to dismissal on the ground of conviction or where it is not practicable to hold an enquiry for the reasons to be recorded in writing by that authority empowered to dismiss or remove a person or reduce him in rank or it is not practicable to hold an enquiry for the security of the State. These three exceptions are well recognised for dispensing with an enquiry, which is required to be conducted under Article 311 of the Constitution of India when the authority takes a decision for dismissal or removal or reduction in rank in writing. In other words, although there is a pleasure doctrine, however, the same cannot be said to be absolute and the same is subject to the conditions that when a government servant is to be dismissed or removed from service or he is reduced in rank, a departmental enquiry is required to be conducted to enquire into his misconduct and only after holding such an enquiry and in the course of such enquiry if he is found guilty then only a person can be removed or dismissed from service or reduced in rank.
12. As stated herein such constitutional provision for holding an enquiry as set out under Article 311 of the Constitution of India could also be dispensed with under the exceptions provided to Article 311(2) of the Constitution where clause (a) relates to a case where upon a conviction of a person by a criminal court on certain charges he could be removed from service without holding an enquiry. Similarly, under clause (c) an enquiry to be held against the government employee could be dispensed with if it is not possible to hold such an enquiry in the interest of the security OP(CAT) No.117/2017 -:21:- of the State. Sub-clause (b) on the other hand provides that such an enquiry could be dispensed with by the authority concerned, after recording reasons, for which it is not practicable to hold an enquiry. The aforesaid power is an absolute power of the disciplinary authority who after following the procedure laid down therein could resort to such extraordinary power provided it follows the preconditions laid down therein meaningfully and effectively".
In that case, there was only a report by an Inspecting Judge which was placed before the Chief Justice of the High Court. Chief Justice opined that it is not possible to hold an enquiry as it may lead to the big question of validity of several judgments rendered by the delinquent officer. Accordingly, enquiry was dispensed with.
7. In Babban Prasad Yadav (supra), an almost similar question had arisen for consideration. That was a case in which services of a teacher was terminated having found that he was guilty of moral turpitude. A regular departmental enquiry was not held, since it was found to be not expedient . The order indicated that the evidence on record establishes the guilt of the delinquent officer and his continuation in residential institution. The rule referred to is similar to the rule which we have extracted OP(CAT) No.117/2017 -:22:- as above. It was held at paragraphs 7 and 8 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 a situation as obtains in the present case. The rule is not under challenge. 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: (1) 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.
8. In this case, all the preconditions have been fulfilled. An Enquiry Committee was duly constituted. It held an enquiry and came to the conclusion that the respondent was guilty of the offence with which he was charged, namely, writing love letters to the student in question. The Director has recorded the reasons for dispensing with regular enquiry, reasons which have been upheld as being valid in the decision in Avinash Nagra [(1997) 2 SCC 534 : 1997 SCC (L&S) 565] wherein this Court has held: (SCC pp. 537 & 542, paras 6 & 12) "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 OP(CAT) No.117/2017 -:23:- 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.
*** 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 to Minister, Human Resources Department, Government of India in that behalf."
Therefore, what is necessary to justify an action after dispensing with a regular enquiry is holding of a summary enquiry and a finding in such summary enquiry that the charged employee was guilty of moral turpitude. Thereafter, the Director on the basis of the summary enquiry has to be satisfied that the charged officer was prima facie guilty. Once it is so found, the Director has to be satisfied that it is not expedient to hold a regular enquiry on OP(CAT) No.117/2017 -:24:- account of various factors and if the reasons are recorded in writing in support of his satisfaction that a regular enquiry need not be conducted, that would suffice. A further charge memo along with the enquiry report or a hearing on such charge memo is not contemplated.
8. In Dhanu S.Rathod (supra) it was only held that a summary enquiry will be adequate compliance of principles of natural justice. The only requirement is giving of an opportunity to show cause which has already been given in an earlier instance. Thereafter, a summary enquiry was conducted and the Director was of the opinion that a regular enquiry is not required, which can be dispensed with. He had stated reasons for arriving at such a conclusion. In S.B.Sankdavar's case (supra), the enquiry report was not even filed before the High Court. Therefore, the High Court had proceeded on the basis that there was no enquiry at all. That is not the situation here. It is an admitted case that there was an enquiry. But the only contention is that the enquiry report was not placed. The entire files were verified by the Tribunal including the enquiry report, in which event, the principles laid down in Avinash Nagra (supra) and OP(CAT) No.117/2017 -:25:- Babban Prasad Yadav (supra) squarely applies to the facts of the case. We do not find any reason to interfere with the said order.
Original Petition is dismissed.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
GOPINATH P.
Rp JUDGE
OP(CAT) No.117/2017
-:26:-
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE ORIGINAL APPLICATION
DATED 17.5.16 FILED BY THE PETITIONER
EXHIBIT P2 A TRUE COPY OF THE REPLY AFFIDAVIT
DATED 24.7.15 FILED BY THE RESPONDENTS
EXHIBIT P3 A TRUE COPY OF THE REPLY STATEMENT
FILED BY THE RESPONDENT TO THE AMENDED
ORIGINAL APPLICATION
EXHIBIT P4 A TRUE COPY OF THE ORDER IN
O.A.NO.80/15 DATED 8.3.2017 PASSED BY
THE CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
ANNEXURE A7 A TRUE COPY OF THE ORDER DATED
31.10.2013 ISSUED BY THE 2ND RESPONDENT.
ANNEXURE A11 A TRUE COPY OF THE ORDER DATED
02.01.2015 PASSED BY THE NAVODAYA
VIDYALAYA SAMITHI.
ANNEXURE A1 A TRUE COPY OF THE APPOINTMENT ORDER
DATED 25.02.1993 ISSUED BY THE DEPUTY
DIRECTOR OF NAVODAYA VIDYALAYA SAMITHI,
HYDERABAD REGION.
ANNEXURE A2 A TRUE COPY OF THE ORDER DATED
10.06.1998 ISSUED BY THE DEPUTY
DIRECTOR, NAVODAYA VIDYALAYA SAMITHI,
HYDERABAD REGION.
ANNEXURE A3 A TRUE COPY OF THE ORDER DATED
04.01.2013 ISSUED BY THE 3RD RESPONDENT.
ANNEXURE A4 A TRUE COPY OF THE 29.01.2013 ISSUED BY
THE 3RD RESPONDENT.
OP(CAT) No.117/2017
-:27:-
ANNEXURE A5 A TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE APPLICANT DATED
29.01.2013 BEFORE THE 3RD RESPONDENT.
ANNEXURE A6 SERIES A TRUE COPY OF THE COMMUNICATION DATED
26.02.2013 ISSUED BY THE ASSISTANT
COMMISSIONER ALONG WITH NOTIFICATION
DATED 20.12.1993 ISSUED BY THE
RESPONDENTS.
ANNEXURE A8 A TRUE COPY OF THE COMMUNICATION DATED
05.11.2013 ISSUED BY THE PRINCIPAL,
JNV, PUTHUCHERY TO THE APPLICANT.
ANNEXURE A9 A TRUE COPY OF THE APPEAL DATED
13.11.2013 SUBMITTED BY THE APPLICANT.
ANNEXURE A10 A TRUE COPY OF THE ORDER DATED
27.11.2013 PASSED BY THIS HON'BLE
TRIBUNAL.
ANNEXURE A12 SERIES A TRUE COPY OF THE APPLICATION DATED 17.01.2014 FILED BY THE APPLICANT ALONG WITH INFORMATION DATED 26.02.2014 FURNISHED BY THE RESPONDENTS.
ANNEXURE A13 A TRUE COPY OF THE OFFICE MEMORANDUM DATED 16.07.2015 ISSUED BY THE GOVERNMENT OF INDIA.