Allahabad High Court
Gyanesh Shukla vs Chancellor, University Of Lucknow on 16 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 1918, (2019) 11 ADJ 625 (ALL)
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
Reserved
Court No. - 3
Case :- SERVICE BENCH No. - 1711 of 2000
Petitioner :- Gyanesh Shukla
Respondent :- Chancellor, University Of Lucknow
Counsel for Petitioner :- I.B.Singh,A.Bharat,A.M.Tripathi,Abhinav N. Trivedi,Anil Kumar Tiwari,J.B.Singh,U N Misra
Counsel for Respondent :- P.C.Agarwal,Brijesh Kr. Shukla,S.P. Shukla,Savitra Vardhan Singh
Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
( As per Anil Kumar, J.) Heard Sri Anil Kumar Tiwari, Senior Counsel assisted by Sri Aditya Tiwari, learned counsel for the petitioner, Sri Brijesh Kumar Shukla, learned counsel for opposite party no.1 and Sri Savtra Vardhan Singh, learned counsel for opposite party no.2.
In the instant writ petition the petitioner has challenged the order of dismissal dated 14.02.2000 passed by Lucknow University, Lucknow and order dated 30.09.2000 passed by the Chancellor, Lucknow University, Lucknow. The petitioner was dismissed from the post of Lecturer in Commercial Arts in the College of Arts and Crafts, Lucknow. The allegations of molestation with a girl student are the basis of order of dismissal.
Facts, in brief, as submitted by Sri Anil Kumar Tiwari, learned Senior Counsel for the petitioner are that petitioner was awarded Bachelors Degree in Fine Arts from the College of Arts & Crafts, Lucknow affiliated to Lucknow University. Thereafter petitioner was awarded Master's Degree in Fine Arts from Maharaja Sayaji Rao University, Baroda, State of Gujrat and he was appointed on the post of Lecturer in Commercial Arts on 16.10.1993 . He was confirmed on the post of Lecturer on 19.11.1994. The petitioner being the senior most Lecturer and having been found suitable was promoted as Head of Department of Commercial Arts. However, in most arbitrary manner services of the petitioner as Lecturer in Commercial Arts, College of Arts and Crafts, Lucknow by exercising the power under Statute 16.04 (b) (e) of the First Statutes of Lucknow Universities (hereinafter referred as ''Statutes') was dismissed by means of impugned order dated 14.02.2000 ( Anneure no.2 to the writ petition) passed by Lucknow University, Lucknow. Without considering the facts of the case in its true spirit and ignoring the prescribed procedure under the Statutes for imposing major punishment the petitioner was dismissed. The order of dismissal was passed in violation of principles of natural justice .The Chancellor also failed to appreciate the fact of the case and also did not consider that the order dated 14.02.2000 has been passed in violation of procedure prescribed under the Statues for imposing major punishment while passing the order dated 30.09.2000.
Learned counsel for the petitioner while challenging the impugned orders further submits that the same are not in consonance with Statute 8.10 read with statue 16.04, which provides that a teacher of the University may be dismissed or removed or terminated on one or more grounds specified therein.
He further submits that order of dismissal is not in accordance with the Statute 16.06 which provides no order of dismissing, removing or terminating the services of a teacher of the University on any ground mentioned in clause (1) of Statute 16.04 ( except in the case of a conviction for an offence involving moral turpitude or of abolition of post) shall be passed unless charges has been framed against the teacher and communicated to him with a statement of the grounds on which it is proposed to take action and he has been given adequate opportunity to the concerned teacher to submit his written statement in his defence, personal hearing and to call upon and examining the witness in his defense.
In order to emphasis his arguments he has placed reliance on Statute 8.10,16.04 and 16.06.
Statute 8.10 reads as under:-
"8.10(1) The Executive Council shall consitute for such time as it thinks fit a Disciplinary Committee in the University which shall consist of the Vice-Chancellor, or the Pro Vic-Chancellor nominated by him , an two persons nominated by it Provided that if the Executive Council considers it expedient, it may constitute more than one such Committee to consider different cases or classes of cases.
(2) No teacher against whom any case involving disciplinary action is pending shall serve as member of the Disciplinary Committee dealing with the case.
(3) The Executive Council may at any stage transfer any case from one Disciplinary Comittee to another Disciplinary Committee."
Statue 16.04 reads as under:-
"16.04(1) A teacher of the University may be dismissed removed or his services terminated on one or more of the following grounds:
(a) wilful neglect of duty;
(b) misconduct;
(c) breach of any of the terms of contract of service;
(d) dishonestly connected with University Examination;
(e) Scandalous conduct or conviction for an offence involving moral turpitude;
(f) physical or mental unfitness;
(g) incompetence;
(h) abolition of the post (2) Except as provided by Section 31 (2), not less than three months notice ( or where notice is given after the month of October then three months' notice or notice ending with the close of the session, whichever is longer) shall be given on either side for terminating the contract or in lieu of such notice, salary of three months ( or such longer period as aforesaid ) shall be paid.
Provided that where the University dismisses or removes or terminates the services of a teacher of the University under clause (1) , or when the teacher terminates the contract for breach of any of its terms laid down by the University , no such notice shall be necessary:
Provided further that the parties will be free to waive the condition of notice in whole or in part by mutual agreement."
And Statue 16.06 reads as under:-
"16.06. (1) No order of dismissing , removing or terminating the services of a teacher of the University on any ground mentioned in clause (1) of statute 16.04 ( except in the case of conviction for an offence involving moral turpitude or of abolition of post) shall be passed unless a charge has been framed against the teacher and communicated to him with a statement of the grounds on which it is proposed to take action and he has been given adequate opportunity.
(i) of submitting a written statement of his defence;
(ii) of being heard in person , if he so chooses; and
(iii) of calling and examining such witnesses in his defence as he may wish.
Provided that the Executive Council or an officer authorized by it to conduct the enquiry may, for sufficient reasons to be recorded in writing , refuse to call any witness.
(2) The Executive Council may , at any time ordinarily within two months from the date of inquiry officer's report pass a resolution dismissing or removing the teacher concerned from service or terminating his services mentioning the ground of such dismissal , removal or termination.
(3) The resolution shall forthwith be communicated to the teacher concerned.
(4) The Executive Council may, instead of dismissing removing or terminating the services of the teacher, pass a resolution inflicting a lesser punishment by reducing the pay of the teacher for a specified period not exceeding three years and or by stopping increments of his salary for a specified period or may deprive the teacher of his pay during the period of his suspension, if any."
Sri Anil Kumar Tiwari, learned counsel for the petitioner further submitted that from the perusal of Statue 16.04 it transpires that the some ground (s) provides on which a teacher of the University may be dismissed, removed or terminated.
He further stated that from the bare perusal of Statue 16.06 it transpires that no order of dismissing, removing or terminating the services of a teacher of the University on any ground mentioned in clause (1) of Statute 16.04 (except in the case of conviction for an offence involving moral turpitude or of abolition of post) shall be passed unless a charge has been framed against the teacher and communicated to him .
Accordingly ,it is submitted by Sri Anil Kumar Tiwari, learned counsel for the petitioner that a combined reading of Statute 16.04 and Statue 16.06 the position which emerge out is that in order to dismissing, removing or terminating the service of a teacher of the University, charges should be framed and charge-sheet is required to be issued to the concerned teacher but in the present case neither charges were framed nor charge-sheet was issued to the petitioner.
He also submitted that after constitution of Disciplinary Committee on 01.12.1998 no charge-shseet was ever issued to the petitioner and he was informed of constitution of the Disciplinary Committee vide letter dated 26.7.1999 whereby he was directed to appear before the committee on 29.7.1999.
He further submitted that in the present case Disciplinary Committee was constituted on 01.12.1998 and the petitioner was required to appear before the committee on 29.7.1999 which consist of Professor R.R. Verma, Vice- Chancellor, Dr. Amrit Dass, Director Institute of Career Studies, Lucknow and Sr. D.S. Bhatnagar, Retd. D.G.P., U.P. Lucknow. Prior to direction issued by the competent authority to the petitioner to appear before the Disciplinary Committee, neither charges were framed nor any charge-sheet was given nor any material was supplied to him in order to defend his case. However, petitioner appeared before Disciplinary Committee and on the said date his statement was recorded by the Disciplinary Committee but the documents which were placed before the Disciplinary Committee were not given to the petitioner nor he was allowed to confront with the persons whose statements were recorded by the Disciplinary Committee.
Accordingly, it is submitted by Sri Anil Kumar Tiwari, learned counsel for the petitioner that regular inquiry, which was/is required in order to take action as per the provisions of Statute 16.06 was not carried out prior to passing of the order of dismissal.
He further submitted that Disciplinary Committee had made two recommendations i.e. dismissal of the petitioner and investigation by CID ( Crime Branch).
On behalf of the petitioner it is also submitted that no report of Disciplinary Committee was served on the petitioner and straightaway order of dismissal dated 14.02.2000 was served on the petitioner without issuing any show cause notice.
Feeling aggrieved against the order dated 14.02.2000 ( Annexure no.2 ) the petitioner had preferred a representation under Section 68 of the U.P. State Universities Act, 1973 to the Chancellor of the University. The Chancellor of the University passed an order dated 30.09.2000 ( Annexure no.1) thereby rejected the representation of the petitioner by way of non-speaking order.
In nut shell, learned counsel for the petitioner has assailed the impugned order(s) dated 14.2.2000 passed by the University, by which the petitioner was dismissed and order dated 30.9.2000, by which Chancellor of the University had rejected the representation of the petitioner, on the following grounds :-
(a) Before passing impugned order of punishment of dismissal from service no charge-sheet was ever issued against the petitioner.
(b) The petitioner was not associated in the enquiry proceedings and the statements of the complainant as well as the police officer were recorded and perused behind the back of the petitioner
(c) Petitioner was not afforded any opportunity to lead any evidence in his defence.
(d) No evidence was recorded by associating the petitoner nor any opportunity was afforded to him to cross examine any witness.
(e) the entire enquiry proceedings and the impugned orders are vitiated for non observation of the provisions of the Statutes especially Statutes 16.04 and 16.06 and the alleged inquiry and the enquiry report was vitiated for the non observance of the procedure prescribed under the Statutes as well as Principles of Natural Justice.
(f) The petitioner has been deprived of his livelihood in an absolute arbitrary and illegal manner by way of the impugned orders which are against the settled legal position that if the law prescribes a manner for doing a particular thing then it can be done only in that manner and no other manner at all, and moreover the general propositions of law that no punishment order can be passed in violation of Principles of Natural Justice.
Leaned counsel for the petitioner submitted that all steps to be followed in a departmental enquiry. In this regard he has placed reliance on the following judgments:-
(a) Yatendra Kumar Vs. State of U.P. and others (2019) (2) ESC 561, para 24-26
(b) C/M Distt Cooperative Bank Ltd. Vs. U.P. Cooperative Institutional Service Board, 2019 (3) ESC 978 , Para 9-30
(c) Sunil Kumar Gupta Vs. State of U.P., Writ Petition No.451 ( SB) of 2013; paras 6-22
(d) Chamoli District Cooperative Bank Ltd. Vs. Raghunath Singh Rana , (2016) 12 SCC 204; para 21 Learned counsel for the petitioner submitted that departmental proceedings commence only when charge-sheet is issued to the delinquent employee. In this regard he has relied the following judgments:-
(a) Union of India Vs.Anil Kumar Sarkar, (2013) 4 SCC 161, Para 19-21
(b) Delhi Development Authority Vs. H.C. Khurana (1993) 3 SCC 196, Para 09 It has also been submitted that it is not permissible to hold enquiry on vague charges. In this regard he relied on the following judgment:-
Anant R. Kulkarni Vs. Y.P. Education Society, (2013 ) 6 SCC 515, para 15 and 16.
It is stated that when law provides for a particular thing to be done in a particular manner when it must be done in that manner and in no other way on the point in issue he relied the following judgment:-
Mackinnon Macjenzie Vs. Mackinnon Employees Unin(2015) 4SCC 544, Para 43 It is also stated that the order of dismissal passed without regular enquiry and in breach of Principles of Natural Justice, is liable to be set aside. On the point in issue he relied the following judgments:-
(a) State of U.P. Vs. Saroj Kumr Siniha (2010) 2 SCC 772, para 27-30, 39.
(b) Roop Singh Negi Vs. Punjab National Bank (2009) 2 SCC 570, paras14 and 15.
(c) State of Uttranchal Vs, Kharak Singh (2008) 8 SCC 236, para 15.
(d) U.P. Warehousing Corporation Vs. V.N. Vajpaee (1980) 3 SCC 459, paras 14-18 It is also stated that the document relied in departmental proceedings should be provided to the delinquent employee. On the point in issue he relied the following judgments:-
(a) Union of India Vs. S.K. Kapoor, (2011) 4 SC 589; Para 5
(b) Union of India and others Vs. Mohd. Ramzan Khan (1991) 1 SCC 588, para 13 and 15.
On the point in issue that delinquent employee is required to be afforded reasonable opportunity to cross-examine the witness and produce the witness in his defence he relied on the following judgments:-
(a) P.N. Srivastava Vs. State of U.P. and others (1999) 1 UPLBEC 672 , para10
(b) Kuldeep Singh Vs. The Commissioner of Police and others (1999) 2 SCC 10 paras 26 and 32.
Learned counsel for the petitioner submitted that delinquent should be provided a copy of the enquiry report . On the point in issue he has relied the following judgment:-
M.D. ECIL Hyderabad Vs. B. Karunakar (1993) 4 SCC 7277, para 30.
Learned counsel for the petitioner submitted that after receipt of report it is mandatory for the disciplinary committee to serve a copy of the show cause notice alongwith the enquiry report. On the point in issue he relied on the the following judgment:-
(a) Nanhey Lal Gupta Vs. U.P. Upbhogta Sahkari Sangh Ltd and another (2007) 2 UPLBEC 1510 , paras 3 & 4 Learned counsel for the petitioner submitted that principles of evidence Act shall be applicable to departmental enquiry. In this regard he has relied the following judgments:-
(a) Asha Ram Verma and others Vs. State of U.P. and others (2003) 2 UPLBEC 1726, paras 7 and 8.
(b) Ministry of Finance and another Vs. S.B. Ramesh (1998) 2 UPLBEC 1087 , paras 13 &14.
In the matter of departmental enquiry the High Court can only look into the procedural aspects of the case and cannot enter into fact finding. On this point he has relied the following judgment:-
High Court of Judicature at Bombay Vs. Shashikant S. Patil (2000) 1 SCC 416 para 16.
Employee shall be given full back wages at the time of reinstatement. In this regard reliance has been placed on the following judgment:-
Pawan Kumar Agarwala Vs. State Bank of India (2015) 15 SCC 184, para 24-26 Learned counsel for the petitioner submits that the complainant is not a necessary party . In this regard he has relied the following judgments:-
Poonam Vs. State of U.P. (2016) 2 SCC 779 para 16-18,21,49 Lastly, it is submitted by learned counsel for the petitioner that on the recommendation of the Disciplinary Committee the matter was referred to CBCID, who had submitted his report on 22.7.2003 stating therein that there is no hope of success even if an F.I.R. is lodged as no evidence has come to the light to successfully prosecute the petitioner as such the investigation was closed and accordingly in this view of the fact the dismissal order is unjust.
It is submitted by learned counsel for the petitioner that impugned order dated 14.2.2000 (Annexure no.2) passed by opposite party no.2 by which petitioner was dismissed from the post of Lecturer in the department of Commercial Arts and Crafts College affiliated to Lucknow University as well as the order dated 30.9.2000 (Annexure no.1) passed by opposite party no.1/Chancellor, Lucknow University, Lucknow under section 68 of the Act may be set aside and the writ petition may be allowed with cost.
Sri Savitra Vardhan Singh, learned counsel for opposite party no.2/University while defending the impugned orders, on the basis of pleadings, submitted as under:-
(i) The complaint was made against the petitioner/Gyanesh Shukla on 20.2.1998 by the students of college of Arts, Lucknow University signed by Chabbi Chaube, Swati Sinigh, Rahul Saxena , Rajesh and Mamta, which was addressed to the Principal, Arts and Crafts College and copies were endoresed to the Vice- Chancellor and others alleging that the petitioner is linked with a gang who indulge in anti-social and criminal activities of exploiting girl students by calling them to residence, taking their nude photos and video graphs, blackmailing and threatening them, which is damaging the reputation of the college and requested for necessary action in the matter.
(ii) Another complaint dated 15.9.1998 was made by the Km. Renu Singh, as student of the College and addressed to the Vice-Chancellor, Lucknow University giving reference of her earlier letter dated 20.02.1998 and alleged that the anti-social and criminal activities in the campus being carried out by certain persons, who were linked with the petitioner.
(iii) It is also mentioned in the said complaint that she had requested for a secret inquiry, but the police office making the inquiry has not maintained secrecy and she had repeatedly received telephonic call threatening physical harm to her and her family members and because of the same she withdraw her complaint by writing to the police on 18.01.2018 and requested the Vice Chancellor that the matter be referred to CBI for enquiry against the petitioner and other persons involved in the activity.
(iv) The Vice Chancellor vide his D.O. letter dated 19.09.1998 sent the copy to the complaint to the Principal Secretary Home mentioning therein that as the allegations of the students are very serious and sensitive as such matter be investigated , so that truth be revealed and action be taken against the guilty person.
(v)The Vice Chancellor received another representation dated 21.11.1998 from the students of the college for taking appropriate action against the petitioner. The Vice-Chancellor again wrote to the Secretary, Home , thereby giving reference to her earlier letters addresssed to Principal Secretary, Home for holding of CBI inquiry. On the representation made by the students, the matter was put up as item no.1 in the meeting of the Executive Council of the Lucknow University on 01.12.1998 and the same was discussed in the meeting of the Executive Council as per the First Statute of Lucknow University. As per the First Statute, the Executive Council had decided to appoint a Disciplinary Committee to enquire in the matter.The Disciplinary Committee consisting of Vie-Chancellor as Chairman, and two others members, namely, Sri D.S. Bhatnagar, Retired, Director General of Police, U.P. and Dr. Amrita Dass, Director , Institute of Career Studies to make enquiry with respect to the allegations of the Miss Renu Singh, a student of college, and submit its report within six weeks.
(vi) The first meeting of the Disciplinary Committee was held on 08.12.1998 in the Chamber of Vice Chancellor, Lucknow University, wherein all the papers submitted by the students and other available material was discussed in detail and it was decided to make the case profile point by point and also to ask the Senior Superintendent of Police to provide the Confidential Report of Enquiry, which was recorded to be conducted by some Police Officers in this case.
(vii) The second meeting of the Disciplinary Committee held on 30.12. 1998 and the case profile prepared by Sri D. S. Bhatnagar was discussed point by point and it was decided to send communication to main compliant that her statement needed to be made before the Disciplinary Committee and to assure her of full secrecy. It was also decided that if there were any other volunteers, who wished to give statement and evidence in this case, they must be given hearing by the Disciplinary Committee and full confidentiality must be assured to all such persons.
(viii) The third meeting of the Disciplinary Committee held on 04.01.1999 and the complainant Renu Singh appeared before the Committee and handed over a written letter dated 04.01.1999 addressed to the Committee stating therein that most of the fact had already been mentioned in her earlier complaint and that her statement and all facts in her knowledge had been given during the enquiry by Senior Superintendent of Police, Lucknow on 20.12.1998 and that should be taken to her submission in the present inquiry. The Disciplinary Committee referred all the complaints to her and she confirmed and further, clarification orally made by her were recorded and it was decided to obtain copy to her statement given to Senior Superintendent of Police, Lucknow on 20.12.1998.
(ix) In pursuance to the decision of the Disciplinary Committee , Vice Chancellor vide letter dated 09.03.1999 requested the Senior Superintendent of Police, Lucknow to provide the copy of the enquiry report and statement of Miss Renu Singh and the Senior Superintendent of Police send the copy of the statement of the Miss Renu Singh only. Since the statement has been sent as confidential as such the same have been kept under the seal cover and will be produced before this Court, if so desires.
(x) The Disciplinary Committee in its meeting dated 03.05.1999 reviewed the statement of Miss Renu Singh, received from the Senior Superintendent of Police, Lucknow and it was decided by the Committee that the statement of the petitioner be also obtained from the Senior Superintendent of Police, Lucknow.
(xi) In pursuance to the decision of the Disciplinary Committee, a letter was sent by Vice- Cahancellor on 03.05.1999 to the Senior Superintendent of Police, Lucknow requesting therein for sending one missing page no.20 of the statement send on 03.05.1999 and also requested for sending the statement to the petitioner. Thereafter reminder was sent by the Vice Chancellor vide letter dated 04.06.1999 for sending the desired statement.
(xii) The Senior Superintendent of Police, Lucknow send the copy of the statement of petitioner in the sealed cover and the same was review by the Disciplinary Committee and after perusal of the same, it was decided by the Committee to give an opportunity of hearing to the petitioner.
(xiii) The statement of the petitioner send by the Senior Superintendent of Police, Lucknow has been kept under the sealed cover and the same will be produced before this Court as and when the Court, so desires.
(xiv) Petitioner was directed to appear before the Disciplinary Committee on 29.07.1999 and the petitioner appear before the Disciplinary Committee on the said date and his statement was recorded.
(xv) On 01.09.1999, the statement of Ms. Sunita Singh, Dy. S.P., Lucknow was recorded and it was stated by her that in pursuance to the directions of the Senior Superintendent of Police, Lucknow, she was entrusted with the enquiry with respect to the complaint of Miss. Renu Singh and during the course of enquiry she has taken the statement of certain persons and the statement of petitioner was recorded in her presence and after recording of the statement the same was given to the petitioner for signature. It was also specifically stated by her that no pressure was put and the same was recorded as was spoken by the petitioner and after the enquiry she has submitted her Confidential Report to the Senior Superintendent of Police, Lucknow.
(xvi)The Disciplinary/ Enquiry Committee considered the complaint made against Shri Gyanesh Shukla in various meetings held on 08.12.1998, 30.12.1998, 03.05.1999,22.06,1999, 28.10.1999, 18.11.1999, 11.12.1999 and 27.01.2000.
(xvii)The Disciplinary Committee after examining the whole issue in depth submitted its report on 27.01.2000 and the recommendation of the Disciplinary Committee are as below:-
(i) " That this to be investigated by the State C.I.D. ( Crime Branch) because there are allegations which concern operations of larger gang in specific offence of drugging taking objectionable photos and video graph , Physical assault, unlawful restrain and threats.
(ii) That Sri Gyanesh Shukla be dismissed from service for his scandalous misconduct as per the Statue 16.04 (e) of the University of Lucknow First Statute."
(xviii)The report of the Disciplinary committee in the case of sri Gyanesh Shukla was put up before the Executive Council in its meeting dated 05.02.2000 and it was unanimously resolved that the recommendation of disciplinary committee be accepted and accordingly the State Government be requested to entrust the investigation to C.I.D (Crime Branch) and for this purpose a copy of the report of the disciplinary committee be forwarded to the State Government and the petitioner be dismissed forthwith from the post of Lecturer in Commercial Act, Faculty of Fine Arts, College of Arts & Crafts, Lucknow under Statute 16.04 (b) (e) of the First Statutes.
(xix)In pursuance to the decision of the Executive Council, the petitioner was dismissed from service in pursuance to the provision of 16.04 (b) (e) of the First statute of Lucknow University , Lucknow and the order was communicated vide order dated 14.2.2000.
(xx)The petitioner feeling aggrieved against his dismissal preferred a representation under section 68 of the U.P. State University Act 1973 (as amended).
(xxi)The Chancellor sought comments from the University on the representation of the petitioner. Copy of comments sent by the University to the Chancellor is annexed as Annexure No.CA -21 to the counter affidavit.
(xxii)The Chancellor considered the representation of the petitioner and rejected the same by means of order dated 30.09.2000.
(xxiii) In view of the aforesaid facts and circumstances, it is evident that the allegation made against the petitioner were of a such grave nature involving, moral turpitude and as such Disciplinary Committee was constituted to hold a close camera proceeding inquiry, in which petitioner was given opportunity to defend himself and the Disciplinary Committee came to the conclusion that the allegations constitute ingredients of crime in society being jointly operated by a group of persons also including a University teacher. The group alleged indulged in organized criminal activity of enticing girls into a place pre-set with photo and videos studio for taking their nude and semi- nude objectionable photos and video graphs and selling them to foreign magazines and subjecting the trapped girls to threat, and black mailing.
(xxiv) The Disciplinary Committee further concluded that as far as the petitioner is concern, his individual conduct is also indictable for scandalous misconduct according to his own duly recorded and signed statement in which he has himself stated to have clicked the camera for the photograph of Km.Renu Singh and molested her and accordingly looking into the gravity of the misconduct and scandalous act of the petitioner , the Executive Council decided to dismiss the petitioner from University services.
Accordingly, it is submitted by Sri Savitra Vardhan Singh that the writ petition filed by the petitioner lacks merit and is liable to be dismissed.
Sri Brijesh Kumar Shukla, learned counsel for opposite party no.1 submitted that in the present case petitioner appeared before the Disciplinary Committee on 29.7.1999 on the said date his statement was recorded and he had put his signature on the statement before the Disciplinary Committee. Taking into consideration the said facts as well as the other facts the Chancellor has rightly passed the order dated 30.9.2000 (Annexure no.1) thereby rejecting the representation of the petitioner under section 68 of the Act. So there is no illegality or infirmity in the impugned orders passed by opposite parties as such the writ petition filed by the petitioner liable to be dismissed.
We have heard learned counsel for the parties and gone through the record.
It order to decide the controversy we feel appropriate to consider the " human dignity" and its importance.
What is Dignity?
Dignity is the quality of being honourable, noble, excellent or worthy. With a human regarded as the most supreme living creature, dignity, in its appealing sense, is better referred to as human dignity. It is the conceptual basis for the formulation and execution of human rights and is neither granted by the society nor can it be legitimately granted by the society. An imperative implication of human dignity is that every human being should be regarded as a very invaluable member of the community with a uniquely free expression of their right to life, integrated bodily attributes and their spiritual nature .
Human dignity is a sense of self-worth. Therefore, dignity is a sense of pride in oneself that a human being has with them. This conscious sense makes them feel that they deserve respect and honour from other human beings. Many scholars argue that if a human being is in a humiliating or compromising situation then this is a major threat to their dignity. However, other human persons may still assert that they have dignity even though they find themselves in such situations. All in all, humans deserve dignity not because of their lifelong achievements but by the fact they are already human beings .
Three Perspectives of Human Dignity The question of human dignity has hit the headlines world over in the recent past. The pre-colonial period has been used as the base reference for crimes against humanity and abuse of human dignity, thence redefinition of the term human dignity by international law courts and the United Nations. Human dignity has been defined from the philosophical, religious and legalistic perspectives.
The deep philosophical roots of the term human dignity were articulated by Emmanuel Kant, a great philosopher of the famous late Enlightenment. He is considered as the source of the now contemporary concept of human dignity. He holds that the fundamental principle behind moral duties of human beings is a categorical imperative. According to Kant, imperative means that it commands us to exercise our wills in a particular way. As a result, human beings with respect for human dignity should not possess any irrational wills against their fellow human beings and the generally acceptable societal norms and values.
And according to Emmanuel Kant, the only thing we should will about is our happiness as human beings. Once we have happiness we'll be able to enjoy good health and nourish proper relationships. Human dignity should operate on the basis of volitional principles or maxims. Hence, the basic rational requirements and morality should be the primary demands that apply to these maxims which motivate all our actions.
Human dignity has also been developed along the lines of religious, theological and ethical perspectives. Christian and Islam views make up this perspective at large. According to the Christians, the Bible reveals that God not only created the human nature but also endowed man with unique qualities after creating man in His own image and likeness . It is from this basis that we can deduce that the human nature deserves a very inherent dignity.
According to the Russian Orthodox Church's basic teaching on the issue of human dignity, God has endowed all human beings in a very generous manner by distributing His gifts equally such that His showing of human dignity, nature and abundance of His unending grace remains undisputable. Owing to the fact that Jesus Christ offered His life as a ransom for sin and the sinful nature of human beings, human dignity was lifted at its best, hence it should be respected. The Bible also asserts that life according to the desires of the flesh that don't withstand respect for other human beings is loss of and abuse of human dignity.
The Islam Texts Society puts forth the idea that human dignity is the basis of human rights. Several references are drawn from the Holy Quran which indicates that a human being deserves dignity as a result of their physical and spiritual nobility. The Quran says that God's love for humanity is immense, the sanctity for human life immeasurable, the necessity for freedom a prerequisite thus restating the need for human equality and accountability for all acts done to humanity (Kamali, H, M, 1999) .
For this reason, Sharia Laws have been developed to help in protecting human dignity and also promote a high level of social interaction. Since God has honoured mankind by His great love, human beings should also reciprocate the same and show their love and respect for their fellow human beings. In other words, dignity is not earned by the meritorious conduct which is an expression of the favour and grace of God towards human beings.
The legal perspective of the concept of human dignity was coined at the end of the Second World War. It has been regarded as the central perspective that discourses human rights. The Universal Declaration of Human Rights states that all humans have been born with equality in dignity and rights. For this reason, they are endowed with enough reason and pure conscience, hence should acts towards one another with a deep spirit of brotherhood. In its preamble, the Universal Declaration of Human Rights seeks for recognition and respect for the inherent dignity as well as the equal and inalienable rights of every member of the human dignity despite where they come from, their religious beliefs or background history.
Drafters of this perspective add that the human person possesses many rights because of the fact they have been born as a person, wholly, a master and manager of oneself in many aspects (Frame Tom, 2007). Therefore, all human beings deserve to be treated with utmost dignity. International Law, in pointing out the contempt of and disregard for human dignity says that abuse of human rights has resulted in numerous barbarous acts that have completely outraged the pure conscience of mankind. Digging deep the question of human dignity has led to the coining of and questions in aspects of human liberty, equality and fraternity because many people died and suffered in the hands of their fellow human beings during the war.
Definition of Sexual Harssment Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when either:
The conduct is made as a term or condition of an individual's employment, education, living environment or participation in a University community.
The acceptance or refusal of such conduct is used as the basis or a factor in decisions affecting an individual's employment, education, living environment, or participation in a University community.
The conduct unreasonably impacts an individual's employment or academic performance or creates an intimidating, hostile or offensive environment for that individual's employment, education, living environment, or participation in a University community.
Sexual harassment is defined by law and includes requests for sexual favors, sexual advances or other sexual conduct when (1) submission is either explicitly or implicitly a condition affecting academic or employment decisions; (2) the behavior is sufficiently severe or pervasive as to create an intimidating, hostile or repugnant environment; or (3) the behavior persists despite objection by the person to whom the conduct is directed. The University considers such behavior, whether physical or verbal, to be a breach of its standards of conduct and will seek to prevent such incidents and take corrective action when sexual harassment occurs Types of Sexual Harassment Generally speaking, there are two types of sexual harassment, "quid pro quo" and hostile environment.
Quid pro quo (meaning "this for that") sexual harassment occurs when it is stated or implied that an academic or employment decision about a student or employee depends upon whether the student or employee submits to conduct of ca sexual nature . Quid pro quo sexual harassment also occurs when it is stated or implied that an individual must submit to conduct of a sexual nature in order to participate in a University Program or activity. So, for example, if an employee is made to believe that a promotion is likely if the employee goes on a date with the employee's supervisor, the employee is possibly being subjected to "quid pro quo" sexual harassment.
Hostile environment sexual harassment occurs when unwelcome conduct of a sexual nature creates an intimidating, threatening or abusive working or learning environment or is so severe, persistent or pervasive that it affects a person's ability to participate in or benefit from a University program or activity. While a person engaging in harassing behavior most often has some form of power or authority over the person being harassed, that is not always the case. The harasser can be a peer of the person being harassed. Sometimes the harasser is harassing a person who has power over them. For example, a supervisee can sexually harass a supervisor or a student can sexually harass a faculty member Examples of Sexual Harassment The following descriptions, while not all-inclusive, will help you understand the types of behavior that are considered "conduct of a sexual nature" and that, if unwelcome, may constitute sexual harassment:
Unwanted sexual statements: Sexual or "dirty" jokes, comments on physical attributes, spreading rumors about or rating others as to sexual activity or performance, talking about one's sexual activity in front of others and displaying or distributing sexually explicit drawings, pictures and/or written material. Unwanted sexual statements can be made in person, in writing, electronically (email, instant messaging, blogs, web pages, etc.) and otherwise.
Unwanted personal attention: Letters, telephone calls, visits, pressure for sexual favors, pressure for unnecessary personal interaction and pressure for dates where a sexual/romantic intent appears evident but remains unwanted.
Unwanted physical or sexual advances: Touching, hugging, kissing, fondling, touching oneself sexually for others to view, sexual assault, intercourse or other sexual activity.
What does it include?
Sexual harassment can include someone:
touching, grabbing or making other physical contact with you without your consent making comments to you that have a sexual meaning asking you for sex or sexual favours leering and staring at you displaying rude and offensive material so that you or others can see it making sexual gestures or suggestive body movements towards you cracking sexual jokes and comments around or to you questioning you about your sex life insulting you with sexual comments committing a criminal offence against you, such as making an obscene phone call, indecently exposing themselves or sexually assaulting you.
Human beings have explored more civilizations with the passage of time and we are now in the 21st century. But, in some countries and societies that is merely a technicality and nothing more. The archaic and often criminal notions of justice and honour, particularly the treatment meted out to women, speak of a society that remains mired in a medieval mindset. This is evident judging by news from different countries and societies and because the world has emerged as a global village such news and stories are easily accessible.
Respect and tolerance towards each other is one of the great human values. It is said that "love creates love". I also believe that "respect creates respect". And when everyone tries to respect one another and when men and women are equally respected in a society, then the social and family system will become stronger and healthier.
Women constitute almost half of the world population and are one of the main stakeholders of a society. Women play a great role in the social and family system. Sometimes, a woman appears as a mother, sometimes as a wife and sometimes as a daughter. All these roles are respected and dignified.
But, most unfortunately, we sometimes find that women are not treated well and are dishonored.
Violence against women is rampant in all corners of the world. Such violence is a human rights violation that manifests itself in a number of ways, including: violence against women in custody, women trafficking, forced and unwilling marriages, acid burning, dowry and inheritance deaths, genital mutilation, domestic violence, stoning to death and so-called honour killing.
Sadly, the underlying issue remains a barbaric and heinous mindset in which an innocent woman is held for personal interests. It was a case in which people took the law into their own hands and, with the power of a gun, abused the dignity of a woman. The police investigated the case and arrested some of the suspects. But different questions arise: Will the culprits be punished? Will justice be done? Will such humiliation and violence against women end? Will that woman regain her honour and dignity?
Hon'ble the Apex Court in the case of Ajit Savant Majagvai v. State of Karnataka, (1997) 7 SCC 110 has held as under :-
"Social thinkers, philosophers, dramatists, poets and writers have eulogised the female species of the human race and have always used beautiful epithets to describe her temperament and personality and have not deviated from that path even while speaking of her odd behaviour, at times. Even in sarcasm, they have not crossed the literary limit and have adhered to a particular standard of nobility of language. Even when a member of her own species, Madame De Stael, remarked "I am glad that I am not a man; for then I should have to marry a woman", there was wit in it. When Shakespeare wrote, "Age cannot wither her; nor custom stale, her infinite variety", there again was wit. Notwithstanding that these writers have cried hoarse for respect for "woman", notwithstanding that Schiller said "Honour women! They entwine and weave heavenly roses in our earthly life" and notwithstanding that the Mahabharata mentioned her as the source of salvation, crime against "woman" continues to rise and has, today undoubtedly, risen to alarming proportions."
Hon'ble the Apex Court in the case of Voluntary Health Association of Punjab vs. Union of India (UOI) and others, AIR 2013 SC 1571, after placing reliance on its earlier judgment i.e. State of H. P. v. Nikku Ram and Ors., (1995) 6 SCC 219, has held as under:-
"Yatra tastu na pujyante sarvastatraphalah kriyah"
A free translation of the aforesaid is reproduced below:
All the actions become unproductive in a place, where they are not treated with proper respect and dignity.
Another wise man of the past had his own way of putting it:
"Bhartr bhratr pitrijnati swasruswasuradevaraih Bandhubhisca striyah pujyah bhusnachhadanasnaih"
A free translation of the aforesaid is as follows:
The women are to be respected equally on par with husbands, brothers, fathers, relatives, in-laws and other kith and kin and while respecting, the women gifts like ornaments, garments, etc. should be given as token of honour.
Yet again, the sagacity got reflected in following lines: -
"Atulam yatra tattejah sarvadevasarirajam| Ekastham tadabhunnari vyaptalokatrayam tvisal."
A free translation of the aforesaid is reproduced below:
The incomparable valour (effulgence) born from the physical frames of all the gods, spreading the three worlds by its radiance and combining together took the form of a woman.
From the past, I travel to the present and respectfully notice what Lord Denning had to say about the equality of women and their role in the society: -
A woman feels as keenly, thinks as clearly, as a man. She in her sphere does work as useful as man does in his. She has as much right to her freedom -to develop her personality to the full as a man. When she marries, she does not become the husband's servant but his equal partner. If his work is more important in life of the community, her's is more important of the family. Neither can do without the other. Neither is above the other or under the other. They are equals.
In the present case petitioner was working on the post of Lecturer in Commercial Arts College affiliated to Lucknow University and the victim Km. Renu Singh was the student of said department.
On 20.2.1998 a complaint was made against the petitioner/Gyanesh Shukla by the students of college of Arts, Lucknow University signed by Chabbi Chaube, Swati Sinigh, Rahul Saxena,Rajesh and Mamta, which was addressed to the Principal, Arts and Crafts College and copies were endoresed to the Vice- Chancellor and others alleging that the petitioner is linked with a gang who indulge in anti-social and criminal activities of exploiting girl students by calling them to residence, taking their nude photos and video graphs, blackmailing and threatening them, which is damaging the reputation of the college and requested for necessary action in the matter. Another complaint dated 15.9.1998 was made by the victim/ Km. Renu Singh, a student of the College,addressed to the Vice-Chancellor, Lucknow University raising her grievance in respect to harassment by the petitioner. On 21.11.1998 another representation was moved by the students of the College for taking appropriate action against the petitioner.
In view of the above the said facts,the Executive Council of the Lucknow University in the meeting held on 01.12.1998, as per the First Statutes, decided to constitute a Disciplinary Committee to inquire into matter in which complaints were made against the petitioner.
Further, the services of the petitioner is governed by the Statutes known as First Statutes of Lucknow University. Dismissal, removal or termination of a teacher can be made on one or more of grounds mentioned in Statute 16.04(1) Statutes and no order of dismissing, removing or terminating the services of a teacher of the University on any ground mentioned in clause (1) of the Statute 16.04 ( except in the case of a conviction for an offence involving moral turpitude or of abolition of post) can be passed without following the procedure as provided in Statute 16.06 .
In the instant case, it is not disputed, on the basis of arguments submitted by leaned counsel for the petitioner and perusal from the record as well as the original record which has been produced by Sri Savitra Vardhan Singh learned counsel for the Lucknow University, that no charge-sheet was ever issued to the petitioner and in view of the complaint which was made against the petitioner by the victim, a Disciplinary Committee was constituted as per statute 8.10.
By letter dated 26.07.1999 petitioner was required to appear before the Disciplinary Committee to put forward his version in his defence. The victim and the petitioner appeared before the Disciplinary Committee and on the basis of material available, the Committee submitted its report.
The relevant portion of report of Disciplinary Committee constituted under Statutes of Lucknow University to enquire into charges of Molestation and threats of Physical Harm alleged by a girl student of College of Arts & Crafts, Lucknow University, against a Lecturer of the College is quoted below:-
"How the Enquiry started:
Complaint dated 20.02.1998 was made purported to be by all students of College of Arts & Crafts,L.U. signed by Chhabi Chube, Swati Singh, Rahul Saxena, Rajesh and Mamta, addressed to the Principal and copies endorsed to Vice-Chancellor and others, alleging that Sri Gyanesh Shukla, who was Lecturer in the College since 1994, was linked with a gang who indulged in anti-social and criminal activities of exploiting girl students by calling them to residence, taking their nude photos and videographs, blackmailing and threatening them, which was damaging the reputation of the College. It was requested that necessary action be taken in the matter.
Another complaint dated 15.09.1998 was made by Km. Renu Singh, a student of the College, addressed to the Vice-Chancellor, Lucknow University, giving reference of her earlier complaint dated 20.02.1998 alleging anti-social and criminal activities in the campus being carried out by certain persons who were linked with Sri Gyanesh Shukla. It was further stated that she had asked for a secret enquiry but the police officer making the enquiry was not maintaining secrecy. She had repeatedly received telephonic call threatening physical harm to her and her family members and , because of that she had felt compelled to give in writing to police on 01.08.1998 that she was withdrawing her complaint and did not want any action therein. Now she wanted that C.B.I. should conduct the enquiry to bring to book the improper activities of the gang which comprised Gyanesh Shukla, Prem Narain Sharma, Mohd. Islam and Ashok Seth.
The Vice-Chancellor sent the said complaint dated 19.09.1998 to Principal Secretary, Home vide her D.O. letter dated 19.11.1998 mentioning that students were agitated and proposing enquiry by CBI.
The Vice Chancellor received another representation dated 21.11.1998 from student of the college asking for the suspension of the Lecturer, Sri Gyanesh Shukla for reason of his sexual activities with a girl student of the College. In this application, no specific case was indicated.
The Vice Chancellor sent the aforesaid application dated 21.11.1998 with D.O. letter dated 21.11.1998 to the Home Secretary inviting reference to her earlier D.O. letter dated 19.11.1998 addressed to the Principal Secretary, Home.
The complainant, Km. Renu Singh also handed over copies of the following complaints made earlier by her in this matter:
(1) Complaint dated 23.06.1996 to S.S.P., Lucknow alleging that Gyanesh Shukla had taken her objectionable photos and she desired that photos and negatives be secured to her.
(2) Complaint dated 19.07.1996 to S.P. Aliganj, alleging that Gyanesh Shukla, Prem Sharma, Islam and Anand Seth , since after her making complaint to police, have been threatening her with physical harm and that they were a gang which jointly operated in unlawful activities of taking photos and videographs of nude girls and selling them to foreign magazines.
(3) Complaint dated 03.10.1996 to S.P. Aliganj, alleging that the S.O., Aliganj, Sri Durgesh Tewari and C.O. Sri Asutosh Pandey had not registered her F.I.R. and instead assured her that they would secure to her photos and negatives within three days but nothing had happened ever after three months. She was receiving threats. She desired that her photos, negative and video cassette be availed to her.
The matter was discussed in the meeting of the Executive Council for discussion as Item no.1 of the agenda for the meeting of 01.12.1998. Under the Lucknow University Statue, the Executive Council decided to constitute a Disciplinary Committee to enqire into matter. Besides the Vice Chancellor, the two other members of the Committee were as below:
(1) D.S. Bhatnagar, IPS Ex- Director General of Police, U.P. (2) Dr. Ms. Amrita Dass, Director, Institute of Career Studies & Social Worker.
Allegation:
The allegation are below:
(1) Renu Singh has stated that she had requested prem to make portrait of her uncle and prem had agreed and told her that, for the purpose, she should reach the residence of Gyanesh. Accordingly, on 18.05.96 at about 9:00 A.M. when she went there prem and gyanesh were present. They had conversations for some time. She was persuaded to change her clothes to banyan and slacks of Gyanesh and they all took tea after which she became unconscious and , in that state, her objectionable photos were taken. In her complaint to SSP, Lucknow, she desired that her only immediate worry was that the photos and negatives be secured to her.
(2) It is stated by Renu Singh that , on 14.07.96, she was informed by Islam to go the residence of gyanesh for obtaining her photos and negatives. Accordingly. She went there where prem met her. When she asked for photos and negatives, Prem told her to first take bath and, upon her refusal, beat her so badly that two of her ribs were fractured and, with pistols in hand he threatened her so that she forced to take bath while he remained standing there, and it appeared to her that there was a hidden videocamera and the scene,was videographed. She had verbally informed that S.O. of Police Station, Aliganj about this incident. She had received repeated threats of physical harm to her.
(3) It is stated in complaints that Islam, Prem, Gyanesh Shukla and Ashok Seth were a gang of criminals who indulged in unlawful activities of taking photos and videos of nude girls for sale to foreign magazines and then threatening and blackmailing them.
Brief facts of the case .................................
................................
Gyanesh has said in his statement that photography had been his subject and that he also made portraits. Renu had come to his residence and asked for Prem who was staying with him those days. He (Gyanesh) had gone to take bath and when he came out, he saw that she had changed her dress to his ''banyan' and slacks. Prem told Gyanesh that she was insisting on being photographed. Gyanesh did not have a film but prem proposed to him to do a bluff by flashing the empty camera so that she would go. As she posed,Gyanesh told her to lift the ''banyan' further up. She raised it above the breasts. Gyanesh thrice flashed the camera. Gyanesh had pressed her breasts. She complained to Prem about Gyanesh having misbehaved with her. After that she went away.
Sri Gyanesh, in his statement before the present Committee said that his statement had been recorded under threat. The Committee also examined the enquiry officer who stated that the statement was recorded as was stated by Gyanesh and that it was read out and then handed over to him to read, and he had read then only signed it, and that there was no reason for the statement being wrongly recorded.
Report:
The allegations by Renu Sing, prior to 20.02.1998, made in complaints to police only, were in the usual procedure of report by victim of the crime. Subsequently, in her statement before enquiry officer, she made supplementary accusations
- of having been drugged into unconsciousness through something administered to her in her cup of tea and, in that condition, her semi- nude photos were taken.
- of having been enticed to the same place where, earlier, her semi-nude photos had been taken in there subjected by another member of the group viz. Prem stated by her to be her friend, to severe beating resulting in rib-fractures and, under threat by pistols in hand, forced by him to take bath and the scene having been videographed.
- of having been threatened and black-mailed by group members who are alleged to be a gang of professionals whose ''mudus operandi' was to take photos and videos of nude girls and selling the picture to foreign magazines and also black-mailing the subject girl.
2.These allegations by victim girl make out ingredients of serious congizable crime. Even the first written complaint to Senior Superintendent of Police, Lucknow by Renu Singh of having been exposed for objectionable photos and threatened were sufficient to constitute F.I.R. of a criminal case and Senior Superintendent of Police had rightly reacted by making clear orders for "S.O. Aliganj to lodge F.I.R.". Had the subordinate staff of levels of S.O. and C.O. duly registered and investigated , the matter would not have prolonged. As it is , the case was not registered and investigated and, after being fed for about three months on vain expectations from local police that the photos and negatives would be secured to her, the story temporarily ended there.
3. Apparently, the complainant herself also had not been keen on police investigation and her interest in reporting to police was limited to her photos and negatives being secured to her. She did not mention in any of her written complaints about having been rendered unconscious through to intake in her tea cup and even of the more serious incident about having been severely beaten to extent of rib-fractures and having been forced to be videographed in bathing scene. However, this does not lead to dismissal of her version. For an unmarried girl-complainant in such a case, it was only natural to be primarily concerned and upset about her objectionable photos and negatives being in hand of others who could anytime blackmail her.
4. Afterwards, when the complaint had joined the University as a student of Arts College where Gyanesh Shukla was a Lecturer, she re-invoked the complaints as students alleging organised activity of sex exploitation of girls by a College Lecturer, whereupon enquiry was started by a lady police gazetted officer but, before the enqiry was completed, the complainant gave in writing to police withdrawing her complaint. After sometime, she petitioned to the Vice Chancellor that she had given in writing to police for withdrawal of her complaint because she felt that the enquiry was being conducted in open manner without maintaining confidentiality and she desired that secret enquiry by C.B.I. should be made on her complaints. The Vice-Chancellor sent up the complaints to State Government, Home Department, recommending enquiry by C.B.I.
5. The allegation by Renu Singh make out an organised crime in society and, in the chain of persons alleged against, there is also the link of Gyanesh Shukla. The C.B.I. is a Central Government Organization and normally deals with economic offences pertaining to subjects of Central Government. It would be proper if the case is dealt with as a crime by the Criminal Investigation Department (Crime Branch) of the State, which is the appropriate agency for the purpose. A substantial spade-work has been already done by the police under Senior Superintendent of Police, Lucknow and confidential report prepared, which would help CID(CB) to make the work easier and quicker. The culprits , whoever they be, should be dealt with according to law.
6. There is one aspect of the matter which needs to be also considered. Renu Singh has stated that the first and last act of misbehavior by Gyanesh Shukla with her was on 18.05.96. During police enquiry, Gyanesh Shukla, in reference to same incident, is on record for having stated that when he had exposed Renu Singh to camera lens, he asked her to lift up the 'banyan' and upon her having lifted the same higher up her breasts, he had pressed her breasts, which was objected to by her. When examined by the present Committee, Gyanesh said that his statement, in course of police enquiry was made under threat. He could give no explanation as to how an educated person of his status could agree to sign that statement. The Committee examined the lady police officer who had the statement recorded and she stated there was no question of any pressure or threat and only what he had stated had been recorded and after recording his statement, the same was read over to him and also handed over to him to read which he had read and thereafter he had signed it of his own free will. The denial of his own recorded and signed statement by Gyanesh Shukla is far from convincing. Such behavior by a University Lecturer, even at his private residential premises and even with an outside girl is self- admitted act of misconduct and moral turpitude.
Conclusion:
(1) The allegation constitute ingredients of crime in society being jointly operated by a group of persons also including a university teacher. The group allegedly indulged in organised criminal activity of enticing girls into a place pre-set with photo and video studio for taking their nude and semi-nude objectionable photos and videographs and selling them to foreign magazines and subjecting the trapped girls to threats and black-mailing. It would be appropriate if this alleged organised criminal activity is investigated by state CID (Crime Branch) so that whoever if found guilty get suitably dealt with according to law.
(2) In so far as the University Lecturer. Sri Gyanesh Shukla is concerned, his individual conduct is also indictible for scandulous misconduct according to his own duly recorded and signed statement in which he has himself stated to have clicked the camera for the photograph of Renu Dingh and molested her by pressing her breasts.
Recommendation:
in view of the above mentioned facts, the Disciplinary Committee recommends:
(1) that this case be investigation by the CID (Crime Branch) because there are allegation which concern operations of a larger gang in specific offences of drugging, taking objectionable photos and videograph, physical assault, unlawful restraint and threats.
(2) that Sri Gyanesh Shukla be dismissed from service for his scandulous misconduct vide statute 16.04(e) of University of Lucknow First Statute."
In the present case, no charge-sheet was given to the petitioner as per the provisions as provided under Statute 16.06(1) and there is some infirmity in conducting the enquiry as per the provisions as provided under Statute 16.06. on the basis of recommendation of Disciplinary Committee, petitioner was dismissed vide order dated 14.02.2000 and the same was confirmed vide order dated 30.09.2000."
In the facts of the present case, we feel appropriate to mention few shlokas and couplets related to the greatness and importance of the "Guru"
1. Gurur-brahma Gurur- vishnu Gurur-devo maheshwarah, Guru Sakshat Para brahma tasmai shri Guruve namah.
2. Dhyan moolam Gurur-murti pooja moolam Guror-padam, Mantra Moolam Gurur-vakyam moksha moolam Gurur Kripa.
3. Guru Govind Dono Khade Kake Lagoon paye, Balihari Guru apne Govind Diyo bataye.
4. Yeh tan vish ki belari Guru amrit ki khan Sheesh diya jo Guru mile to bhi sasta jaan.
5. Sab dharti kagaz karu lekhani sab ban raye Saat samand ki mas karu Guru guna likhyo no jaye.
6. Teerath gaye se ek phal, sant mile phal char Sad Guru mile anek phal kahe kabir vichar
7. Guru binu bhav nidhi tarai na koi Jo viranchi Shankar sam hoi
8. Guru bina gyan na upaje, Guru bina mite na bhed Guru bina sanshaya na mite jai jai gurudeva.
9. Guru ko sir par rakhiye chaliya agya mahi Kahe kabir ta das ko teen lok bhay nahi
10. Jaisi preet kutumb mein, taisi Guru mein hoye Kahe Kabir ta das ko pala na pakade koye
11. Man ki jane sab Guru kahan chi pave andh Sad Guru seva keejiye sab kat jave phand.
12. Nank Sad Guru bhentiya mal janam janam de lathe Aoukhee gharree n dhaekhan dhaee Sad Guru apne biradh samaalae
13. Guru bina bhajan haram hai Guru bin dete dhaan Bina Guru narak mein jayi hai, kehte ved puran.
14. Guru ki aur nihariye, auran syon kya kaam Guru updesh vichar kar, rakhiye mann ko tham.
15. Guru se kuchh no duraiye, Guru se jhooth na bol Buri-bhali khoti-khari Guru aage sab khol.
16. Nigura mo ko na mile, paapi mile hazar Ik nigure ke sheesh pe, lakh-paapi ka bhar.
17. Kabir te nar andh hai, Guru ko kehate aur, Hari roothe Guru thaur hai, Guru roothe nahi thaur.
18. Guru agya mane nahin, chale atpati chal, Lok Veda dono gaye, aaye siir par kaal.
In regard to relationship between teacher/ Guru and the students, the Bombey High Court in the case of Shashikant B. Kulkarni (prof.) Vs. Principal, BPCS College of Physical Education and other, (2008) 110 (5) Bom LR 1819 after placing reliance on supreme court's judgment(s) has observed as under:-
"54.As the conduct of the petitioner has been clearly found to be one which amounts to Misconduct as defined by the statute of the University of Mumbai and as appropriate disciplinary action has not only been initiated but also completed strictly in conformity with its statutes by the management, we do not find any substance whatsoever in these contentions raised on behalf of the petitioner by placing reliance on the judgement of Vishaka's case (supra). We have serious doubt as to whether a male delinquent can raise such a contention in the facts and circumstances of this case, without being able to even contend that any prejudice was caused to him on account of the alleged improper constitution of the Inquiry Committee. Even otherwise while examining this case in exercise of writ jurisdiction, it will not be just and proper to accept such an argument and consider a further consequential request for a wholesale fresh inquiry, requiring reexamination of especially girl students, etc.
55. The Supreme Court in the case of (Avinash Nagra v. Navodaya Vidyalaya Samiti), reported in 1996 DGLS 1526 (soft): 1997 (2) S.C.C. 534, had an occasion to explain the importance of the character and conduct of a teacher in the following words:--
"10. Mahatma Gandhi, the Father of the Nation has stated that "a teacher cannot be without character. If he lacks it he will be like salt without its savour. A teacher must touch the hearts of his students. Boys imbibe more from the teacher's own life than they do from books. If teachers impart all the knowledge in the words to their students but do not inculcate truth and purity amongst them, they will have betrayed them......"
56. In the same paragraph, it is further observed thus:
".............Dr. S. Radhakrishnan has stated that "we in our country look upon teacher as gurus or, as acharyas. An Acharua is one whose aachar or conduct is exemplary. He must be an example of Sadachar or good conduct. He must inspire the pupils who are entrusted to his care with love of virtue and goodness. The ideal of a true teacher is andhakaraniridhata gururitya bhidhiyate. Andhakar is not merely intellectual ignorance, but is also spiritual blindness. Me who is able to remove that kind of spiritual blindness is called a guru. Are we deserving the noble appellation of an acharua or a guru?" Swami Vivekananda had stated that "the student should live from his very boyhood with one whose character is a blazing fire and should have before him a living example of the highest teaching. In our country, the imparting of knowledge has always been through men of renunciation. The charge of imparting knowledge should again fall upon the shoulder of Tyagis."
57. In the same judgement, further giving the background as to why in our Indian society, teachers are placed on the pedestal below the parents, the Supreme Court has observed thus:--
"11. It is in this backdrop, therefore, that the Indian society has elevated the teacher as "Guru Brahma, Gurur Vishnu, Guru Dcvo Maheswaraha." As Brahma, the teacher creates knowledge, learning, wisdom and also creates out of his students, men and women, equipped with ability and knowledge, discipline and intellectualism to enable them to face the challenges of their lives. As Vishnu, the teacher is preserver of learning. As Maheswara, he destroys ignorance. Obviously, therefore, the teacher was placed on the pedestal below the parents."
58. In another judgement delivered by the Supreme Court in the case of (Manager, Nirmala Senior Secondary School, Port Blair v. N.I. Khan), reported in 2003 DGLS 244 (soft): 2003 (12) S.C.C. 84: A.I.R. 2004 S.C. 499 regarding the importance of the character of a teacher, the Supreme Court has observed thus:--
"2........... An educational institution runs smoothly when the teacher and the taught are engaged in the common ideal of pursuit of knowledge. It is, therefore, manifest that the appointment of teachers is an important part in educational institutions. The qualifications and the character of the teachers are really important."
59. Particularly when we are concerned with teachers employed for teaching girl students, the teacher by his character and conduct must exhibit and justify the status so given to him by the Indian society, especially when such a teacher is a male. In the same judgement in Avinash Nagra (supra), the Supreme Court has observed thus:--
"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."
60. We are constrained, in view of the aforesaid aspects of the matter, to observe that the charges proved against the petitioner, are very serious in nature and do not befit "a teacher".The observations of the Supreme Court made in paragraph 10 of the decision in Manager, Nirmala Senior Secondary School (supra) set out hereunder should not be overlooked:--
"10. The allegations made against respondent Khan are no doubt of a very serious nature and certainly if proved, do not befit a teacher. The clay-like minds of young children are shaped into beautiful moulds by teachers. They shape the future course of the students. To a great measure their behaviour, character, reputation leave imprints in the minds of the young children. If their conduct, behaviour and reputation is full of blemish that would not be in the interest and for the welfare of the students."
In view to status of a "Guru" in Indian society , the Guru/Teacher" is required to maintain highest level of "ethical standards" and "integrity", which includes social and moral standards and he should be a role model of students and society. The purpose of highest level of ethical standards for teaching profession are (i) to inspire members of the society to reflect and uphold the honour and dignity of the teaching profession, (ii) to identifying the ethical responsibilities and commitments in the teaching profession, (iii) to guide ethical decision and action in teaching profession and (iv) to promote public trust and confidence in teaching profession.
Any short coming in the highest level of "Ethical Standards" and "Integrity", a Guru/Teacher is unbecoming of "Guru/Teacher.
From the pleadings on record including the report of the Disciplinary Committee , the relevant portion of which is quoted herein above, and also from the original record to which we have gone through the position which culled out is to the effect that :-
(i) After complaint dated 20.02.1998 made by girl students of Arts College and complain dated 15.09.1998 made by Km. Renu Singh against the petitioner Gyanesh Shukla and report dated 21.11.1998 against the petitioner, a Disciplinary Committee was constituted by the Vice Chancellor of Lucknow University on 01.12.1998.
(ii) Km. Renu Singh appeared by the Disciplinary Committee and gave her statement against the petitioner on 01.04.1999.
(iii) Vide letter dated 26.07.1999 the petitioner/Gyanesh Shukla was directed to appear before the Disciplinary Committee on 29.07.1999 and on the date he appeared before the Disciplinary Committee and gave his statement .
(iv) In the letter dated 26.07.1999 it has been specifically mentioned that the Disciplinary Committee was constituted to consider the complaint lodged by the Km. Renu Singh against the petitioner/Gyanesh Shukla. Meaning thereby that the petitioner/Gyanesh Shukla was aware about the charge against him.
(v) It appears that from the statement, on record, of the petitioner that he never asked to cross- examine Km. Renu Singh.
(vi) Statements of both the persons were recorded separately.
(vii) The statements of both persons were also recorded by the Senior Police Officer.
(viii) Before police officer, the petitioner admitted the allegations made in the complaint made by Km. Renu Singh.
(ix) Before Disciplinary Committee, the petitioner said that his statement before police officer is under threat.
(x) There is no allegation of bais or mala fide against the respected members of Disciplinary Committee consisting of Vice Chancellor, as Chairman, Sri D.S. Bhatnagar, retired Director General of Police U.P. and Dr. Ms. Amrita Dass, Director, Institute of Career Studies .
(xi) As stated by the victim, Km. Renu Singh and as appears from the report of Disciplinary Committee that on 18.05.1996 when victim went to the house/ place of the petitioner he offered tea and after taking the same ,she become unconscious and the petitioner took some objectionable photographs and thereafter on 14.7.1996 the victim was informed by Islam to go to take the photographs and negatives and when the victim went there one Prem met and when she asked for photos and negatives, he told her to take bath and upon her refusal she was beaten and on gun point she was forced to take bath in front of him and the said seen was also, probably, video graphed.
(xii) During police enquiry, petitioner/ Gyanesh Shukla, in reference to same incident, stated that when he had exposed Renu Singh to camera lens, he asked her to lift up the 'banyan' and upon her having lifted the same above her breasts, he had pressed her breasts, which was objected to.
(xiii) Before the Committee, petitioner/ Gyanesh Shukla said that his statement,in course of police enquiry was made under threat.
(xiv) The Disciplinary Committee did not accepted the statement of the petitioner to the effect that the statement given by him to the police was under threat and in this regard adequate reasoning has been given by the Disciplinary Committee in its report, which is to the effect that he could give no explanation as to how an educated person of his status could agree to sign that statement.
(xv) The Committee examined the lady police officer, who in her statement stated there was no question of any pressure or threat and only what was stated by the petitioner was recorded and after recording his statement, the same was read over to him and also handed over to him to read which he had read and thereafter he had signed it of his own free will.
(xvi) After considering the entire facts the Disciplinary Committee said that the denial of his own recorded and signed statement by Gyanesh Shukla is far from convincing.
(xvii) The Disciplinary Committee on the basis of material on record before it came to the conclusion that petitioner is indictible for scandulous misconduct according to his own duly recorded and signed statement in which he has himself stated to have clicked the camera for the photograph of Renu singh and molested her by pressing her breasts. The said act is nothing but amounts to sexual harassment of victim.
(xviii) The proceedings against the petitioner were not carried out strictly as per the provisions as provided under Statute 16.06 of the Statutes.
(xiv) On the recommendation of Disciplinary Committee the petitioner was dismissed, which was communicated vide order dated 14.02.2000.
(xv) The order dated 14.02.2000 was affirmed by the Chancellor vide order dated 30.09.2000.
(xvi) The orders dated 14.02.2000 and 30.09.2000 have been challenged on the main ground to the effect that the same are in violation of the principles of "Audi Alterum Partem".
Keeping in view the basic principle "Audi Alterum Partem" and the aforesaid,we have to consider whether in the facts and circumstances of the present case, which is the case related to a Teacher/Guru and students the opportunity provided to the petitioner before passing the order of punishment was / is justified or not?
The Hon'ble Apex Court in the case of Hira Nath Mishra and others Vs. The Principal, Rajender Medical College, Ranchi and another, (1973) 1 SCC 895 ,wherein the facts are to the effect that for finding out the veracity of the allegations made by the girls students in the complaint the Committee of three persons was constituted. The Committee recorded the statement(s) of female student(s) and thereafter statement(s) of male student(s) were recorded, who denied the allegations before the Committee, and thereafter Committee came to the conclusion that the male student(s) were guilty of gross misconduct and on the basis of conclusion arrived by the Committee the male students were expelled.The order of expulsion was challenged in the writ proceedings on the ground. The High Court dismissed the writ petition. The judgment of the High Court was challenged before the Hon'ble Apex Court. While dismissing the appeal, the Hon'ble Apex court observed as follows:-
"The High Court was plainly right in holding that principles of natural justice are not inflexible and may differ in different circumstances. This Court has pointed out in Union of India v. P.K. Roy (1968)2 SCR 186 that the doctrine of natural justice cannot be imprisoned within the strait-jacket of a rigid formula and its application depends upon several factors. In the present case the complaint made to the Principal related to an extremely serious matter as it involved not merely internal discipline but the safety of the girl students living in the Hostel under the guardianship of the college authorities. These authorities were in loco parentis to all the students-male and female who were living in the Hostels and the responsibility towards the young girl students was greater because their guardians had entrusted them to their care by putting them in the Hostels attached to the college. The authorities could not possibly dismiss the matter as of small consequence because if they did, they would have encouraged the male student rowdies to increase their questionable activities which would, not only, have brought a bad name to the college but would have compelled the parents of the girl students to withdraw them from the Hostel and, perhaps, even stop their further education. The Principal was, therefore, under an obligation to make a suitable enquiry and punish the miscreants.
But how to go about it was a delicate matter. The Police could not be called in because if an investigation was started the female students out of sheer fright and harm to their reputation would not have cooperated with the police. Nor was an enquiry, as before a regular tribunal, feasible because the girls would not have ventured to make their statements in the presence of the miscreants because if they did, they would have most certainly exposed themselves to retaliation and harassment thereafter. The college authorities are in no position to protect the girl students outside the college precincts. Therefore, the authorities had to devise a just and reasonable plan of enquiry which, on the one hand, would not expose the individual girls to harassment by the male students and, on the other, secure reasonable opportunity to the accused to state their case.
Accordingly, an Enquiry Committee of three independent members of the staff was appointed. There is no suggestion whatsoever that the members of the Committee were any thing but respectable and independent. The Committee called the girls privately and recorded their statements. Thereafter the students named by them were called. The complaint against them was explained to them. The written charge was handed over and they were asked to state whatever they had to state in writing. The Committee were not satisfied with the explanation given and thereafter made the report.
We think that under the circumstances of the case the requirements of natural justice were fulfilled. The learned Counsel for the respondents made available to us the report of the Committee just to show how meticulous the members of the Committee were to see that no injustice was done. We are informed that this report had also been made available to the learned Judges of the High Court who heard the case and it further appears that the counsel for the appellants before the High Court was also invited to have a look into the report, but he refused to do so. There was no question about the incident. The only question was of identity. The names had been specifically mentioned in the complaint and, not to leave anything to chance, the Committee obtained photographs of the four delinquents and mixed them up with 20 other photographs of students. The girls by and large identified these four students from the photographs. On the other hand, if as the appellants say, they were in their own Hostel at the time it would not have been difficult for them to produce necessary evidence apart from saying that they were innocent and they had not gone to the girls Hostel at all late at night. There was no evidence in that behalf. The Committee on a careful consideration of the material before them came to the conclusion that the three appellants and Upendra had taken part in the night raid on the girls Hostel. The report was confidentially sent to the Principal. The very reasons for which the girls were not examined in the presence of the appellants, prevailed on the authorities not to give a copy of the report to them. It would have been unwise to do so. Taking all the circumstances into account it is not possible to say that rules of natural justice had not been followed. In Board of Education v. Rice 1911 AC 179 Lord Loreburn laid down that in disposing of a question, which was the subject of an appeal to it, the Board of Education was under a duty to act in good faith, and to listen fairly to both sides, inasmuch as that was a duty which lay on everyone who decided anything. He did not think that the Board was bound to treat such a question as though it were a trial. The Board need not examine witnesses. It could, he thought, obtain information in any way it thought best, always giving a fair opportunity to those who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view-More recently in Russell v. Duke of Norfolk 1949 1 All ER 109 Tucker, L.J. observed: "There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case." More recently in Byrne v. Kinematograph Renters Society Ltd. 1958 2 All ER 579 Harman, J. observed "what, then, are the requirements of natural justice in a case of this kind? First, I think that the person accused should know the nature of the accusation made; secondly that he should be given an opportunity to state his case; and thirdly, of course, that the tribunal should act in good faith. I do not think that there really is anything more".
Rules of natural justice cannot remain the same applying to all conditions. We know of statutes in India like the Goonda Acts which permit evidence being collected behind the back of the goonda and the goonda being merely asked to represent against the main charges arising out of the evidence collected. Care is taken to see that the witnesses who gave statements would not be identified. In such cases there is no question of the witnesses being called and the goonda being given an opportunity to cross-examine the witnesses. The reason is obvious. No witness will come forward to give evidence in the presence of the goonda. However unsavory the procedure may appear to a. judicial mind, these are facts of life which are to be faced. The girls who were molested that night would not have come forward to give evidence in any regular enquiry and if a strict enquiry like the one conducted in a court of law were to be imposed in such matters, the girls would have had to go under the constant fear of molestation by the male students who were capable of such indecencies. Under the circumstances the course followed by the Principal was a wise one. The Committee whose integrity could not be impeached, collected and sifted the evidence given by the girls. Thereafter the students definitely named by the girls were informed about the complaint against them and the charge. They were given an opportunity to state their case. We do not think that the facts and circumstances of this case require anything more to be done."
In the light of the observations made by the Hon'ble Apex Court in the Judgment passed in the case of Hira Nath Mishra (supra), we have considered the facts and circumstances of the case,which relates to a Teacher/Guru and Students, mentioned herein above in nutshell, including the fact that before the Disciplinary Committee the petitioner never objected the procedure followed by the Disciplinary Committee and after due consideration, we are of the view that in given situation an adequate opportunity was provided by the Disciplinary Committee to the petitioner.
Thus, we are of the view that on account of the plea based on Statute 16.06, the impugned orders are not liable to be interfered.
Another point which is to be considered is that whether on the basis of report of C.B.C.I.D., the order of punishment dated 14.02.2000 and order dated 30.09.2000 passed by Chancellor are liable to be interfered. This is on the basis of arguments raised by learned counsel for the petitioner that on the recommendation of the Disciplinary Committee, matter was referred to C.B.C.I.D. and in its report dated 22.07.2003 the C.B.C.I.D. has stated that there is no hope of success even if an F.I.R. is lodged as no evidence has come to the light to successfully prosecute the petitioner as such the investigation was closed and accordingly the dismissal order is unjust.
Needless to say that it is settled principle of law that in disciplinary proceedings the order of punishment can be passed on preponderance of probability and in criminal proceedings the order of punishment can be passed only if charge is proved beyond doubt.
Hon'ble the Apex Court in the case of Shashi Bhushan Prasad Vs. Inspector General Central Industrial Security Force and others, AIR 2019 SC 3586 after taking into consideration the earlier judgments on the point in issue has held as under:-
"The scope of departmental enquiry and judicial proceedings and the effect of acquittal by a criminal Court has been examined by a three Judge Bench of this Court in Depot Manager A.P. State Road Transport Corporation Vs. Mohd. Yousuf Miya and Others, 1997 (2) SCC 699. The relevant para is as under:-
"The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances.There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public (sic duty), as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct.The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of the Evidence Act. The evidence required in the departmental enquiry is not regulated by the Evidence Act. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304A and 338, IPC. Under these circumstances, the High Court was not right in staying the proceedings."
18. The exposition has been further affirmed by a three Judge Bench of this Court in Ajit Kumar Nag Vs. General Manager (PJ), Indian Oil Corporation Limited, Haldia and Others ,2005 (7) SCC 764, this Court held as under: -
"As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused "beyond reasonable doubt", he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of "preponderance of probability". Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside."
A Division Bench of this Court in the case of Sukh Ram Vs. State of U.P. and others, 2018 (4) ESC 1772 after taking into consideration the various judgments on the point in issue has held as under:-
"(19) The principles discussed above can be summed up and summarized as follows:
19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities;
19.2. The Courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority;
19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the Court;
19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The Court by itself cannot mandate as to what should be the penalty in such a case.
19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. This would be on the Doctrine of Equality when it is found that the concerned employee and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge sheet in the two cases. If the co-delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable.
In view of the above settled proposition of law, the arguments based on report of C.B.C.I.D., in our view, have got no force, accordingly rejected.
For the forgoing reasons, the writ petition lacks merit and is dismissed.
No order as to cost.
(Saurabh Lavania,J.) (Anil Kumar,J.) Order Date :- 16.11.2019 dk