Orissa High Court
Kendriya Vidyalaya Sangathan vs Shri Ananta Chandra Das And Others on 17 February, 2017
Author: S.N.Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.20352 of 2016
In the matter of application under Articles 226 and 227 of the Constitution
of India.
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Kendriya Vidyalaya Sangathan
and Others ...... Petitioners.
- Versus-
Shri Ananta Chandra Das and Others ...... Opposite Parties.
Counsel for Petitioners : Advocate Mr. Hrusikesh Tripathy.
Counsel for Opp.Parties : M/s.Satyajit Behera, A. Mishra, S. Soren,
C. K. Sahoo, A. K. Mohanty and Mr. A. K.
Bose
PRESENT:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
&
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing : 08.02.2017 ; Date of judgment : 17.02.2017
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S. N. Prasad, J.The Kendriya Vidyalaya Sangathana and its functionaries, being aggrieved with the order dtd.19th September, 2016 passed in Original Application No.1019 of 2012 by the Central Administrative Tribunal, Cuttack Bench, Cuttack are before this court by way of this writ petition whereby and where under the order dtd.09.03.2012 and 04.10.2012, the orders of dismissal of the opposite party no.1, has been quashed and set aside and the matter has been remitted back to the disciplinary authority to reconsider the matter de novo, after giving the applicant an opportunity of being heard.
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2. The brief fact of the case is that the opposite party no.1 was working as work-experienced teacher in Kendriya Vidyalaya Sangathana, after putting 18 years of service as a teacher at various places, was lastly posted at Kendriya Vidyalaya, Charbatia, while posted there, was removed from service on the allegation that he misbehaved a minor girl-student of about 11 to 12 years of age.
3. The case of the opposite party no.1 is that the order of dismissal has been passed without following the provisions as contemplated under Article 311(2) of the Constitution of India as also without initiating a regular departmental proceeding as per the Discipline and Appeal Rules governing the field, hence the order of dismissal is an arbitrary exercise of the authorities concern, hence according to him the order of dismissal is not fit to be sustainable in the eye of law.
4. While, on the other hand, the case of the Kendriya Vidyalaya Sangathana and its functionaries is that on the basis of allegation that the opposite party no.1 misbehaved a minor girl student aged about 11 to 12 years, on complaint having been received, a preliminary enquiry was directed to be conducted by the Asst. Commissioner of the Kendriya Vidyalaya Sangathana, who constituted a fact finding committee and the committee after recording the evidence of various girl students including the lady teachers working in the school, has found the allegation to be true and as such the matter has been referred before the Commissioner, being the competent disciplinary authority, who has taken recourse of the provision of Section 81(b) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (herein after referred to as the Rules, 1965) since according to him it is not expedient to hold regular inquiry on 3 account of embarrassment to student or their guardians or for other practical difficulties, after recording reasons in writing, the Commissioner, in exercise of power conferred under Article 80 and 81(b) of the Kendriya Vidyalaya Sangathana Education Code, has passed the order of dismissal and as such in such circumstances it cannot be said that the order of dismissal is illegal and arbitrary exercise of power.
It has been submitted that the Commissioner has got power under the provision of Article 81(b) of the Kendriya Vidyalaya Sangathana Education Code to dismiss an employee if in his opinion it is not expedient to hold regular departmental proceeding and to that effect he can pass an order of dismissal after getting prima facie report on the basis of preliminary inquiry by the Asst. Commissioner, Kendriya Vidyalaya Sangathana and invoking the said jurisdiction he has rightly passed the order of dismissal taking into consideration the nature of allegation upon a working teacher.
On this factual aspects, the learned Tribunal, before whom the order of dismissal has been put to judicial review, has passed order and while disposing of the original application the order of dismissal passed by the appellate authority as well as the original authority has been quashed and set aside by remitting the matter back before the authority to initiate de novo enquiry, the order is under challenge before this court under Article 226 and 227 of the Constitution of India having been assailed by the Kendriya Vidyalaya Sangathana on the ground that the Tribunal has not taken into consideration the nature of allegation, the preliminary enquiry report of the committee constituted under the direction of Asst. Commissioner of Kendriya Vidyalaya Sangathana who has found the 4 allegation true on the basis of the statements recorded by him of the victim girl and other girls who were studying in the school including the lady teacher and thereafter the allegations of guilt having been proved in the preliminary enquiry, has been sent before the Commissioner who is the competent authority to impose punishment upon the employee working under the Kendriya Vidyalaya Sangathana under the prevalent rule and the Commissioner after being satisfied with the report and after recording reasons of not holding regular enquiry as contemplated under the prevalent rule, as also making deviation of Article 311(2) of the Constitution of India by recording specific reason for doing this, has passed the order of dismissal in exercise of power conferred under Article 81(b) of the Kendriya Vidyalaya Sangathana Education Code and as such the order cannot be said to be without jurisdiction and suffers from non-application of mind, but the Tribunal has not taken into consideration this aspect of the matter and set aside the order of dismissal passed by the disciplinary authority against the opposite party no.1.
The other ground has been taken that the Court of Law is to judicially review the order of punishment if there is non-consideration of reply, but the fact finding given by the disciplinary authority cannot be reversed assuming the power of appellate court by a Court sitting under Article 226 of the Constitution of India.
Further it has been argued that the provisions of following the principle of natural justice is required to be followed, it is not in dispute, but there is exception carved out even under Article 311(2)(b) of the Constitution of India read with Article 81(b) of Kendriya Vidyalaya Sangathan Code and it is open to the 5 disciplinary authority to deviate from the settled proposition to initiate regular departmental proceeding in case of exceptional circumstances but the requirement is to record the reason for deviating from the settled proposition to initiate a departmental enquiry by providing opportunity to defend the delinquent employee, here in the instant case the allegation leveled against the opposite party no.1 is to sexually harass the girl student of 11 to 12 years age and the girl student herself has disclosed before the preliminary enquiry committee regarding the veracity of the allegation which has been supported by the other girl students studying in the school including the lady teacher and as such in the preliminary enquiry the allegation has been found to be true and accordingly the Commissioner, on examination of the preliminary enquiry report, has exercised the power conferred under Article 81(b) of the Kendriya Vidyalaya Sangathana Education Code by recording reasons to deviate from the regular departmental proceeding since it will cause embarrassment to the victim girl student and the guardians if they will be asked to go for examination and cross-examination in course of enquiry and as such the competent authority, in exercise of power vested upon him, has passed the order of dismissal and hence the Tribunal ought not to have interfered with the decision taken by the disciplinary authority by setting aside the same.
5. We have heard the learned counsels for the parties at length and perused the written notes of submission filed on behalf of opposite party.
We, after going through the factual aspects, have found that the questions arose for consideration are:-
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(i) whether the dismissal of opposite party no.1 is vitiated by error of law and whether he is entitled to full-fledged enquiry and opportunity to cross-examine the girl students who have given the statement against him;
and
(ii) whether the Central Administrative Tribunal was right in allowing the original application under the impugned order dtd.19th September, 2016.
6. Indisputably, the provision of Rules, 1965 of the Government of India is applicable to the employees of the Kendriya Vidyalaya Sangathana. The Kendriya Vidyalaya Sangathana has also constituted its own Education Code. The provision under Article 80 and 81(b) of the Kendriya Vidyalaya Sangathana Education Code is as under:-
"Article 80 - Extension of the application of Central Civil Services (Classification, Control and Appeal) Rules, 1965:
(a) All employees of Kendriya Vidyalayas, Regional Offices and the Headquarters of the Sangathan shall be subject to the disciplinary control of the Sangathan and the Central Civil Services (Classification, Control and Appeal) Rules, 1965, as amended from time to time, will apply mutatis mutandis to all Members of the staff of the Sangathan except when otherwise decided. (In the above Rules, for the words "Government Servant", whether they occur, the words "Employee of Kendriya Vidyalaya Kendriya Vidyalaya Sangathan" shall be substituted.
Article 81(B) - Termination of services of an employee found guilty of immoral behavior towards students:
Whether the „Commissioner‟ is satisfied after such a summary enquiry as „he‟ deems proper and practicable in the circumstances of the case that any member of the Kendriya Vidyalaya is prima facie guilty of moral turpitude involving sexual offence or exhibition of immoral sexual behavior towards any student, he can terminate the services of that employee by giving him one month‟s or three months pay and allowances accordingly as the guilty employee is temporary or permanent in the service of the Sangathan. In such cases, procedure prescribed for holding enquiry for imposing major penalty in accordance with CCS (CCA) Rules, 1965 as applicable to the employees of the Kendriya Vidyalaya Sangathan, shall be dispensed with, provided that the „Commissioner‟ is of the opinion that it is not expedient to hold regular enquiry on account of embarrassment to student or his guardians 7 or such other practical difficulties. The „Commissioner‟ shall record in writing the reasons under which it is not reasonably practicable to hold such enquiry and he shall keep the Chairman of the Sangathan informed of the circumstances leading to such termination of services."
The petitioner before this court is running nation wide co- educational, specialized and prestigious school in which almost half of the students are girls, with a view to ensure safety and security to the girl student, to protect their modesty and prevent their unnecessary exposure at an enquiry in relation to the conduct of a teacher resulting in such harassment of the girl student, etc. involving misconduct of moral turpitude, the provision has been made under the Kendriya Vidyalaya Sangathana Education Code under Article 81(b) providing therein the power upon the Commissioner to terminate the services of an employee found guilty of immoral behaviour towards students if the delinquent is found to be prima facie guilty of moral turpitude involving sexual offence for exhibition of immoral sexual behavior towards any student, he can terminate the services of that employee by giving him one months‟ or three months pay and allowances accordingly as the guilty employee is temporary or permanent in the Sangathan. In such cases, procedure prescribed for holding enquiry for imposing major penalty in accordance with the Rules, 1965 as applicable to the employees of the Kendriya Vidyalaya Sangathana, shall be dispensed with, provided that the Commissioner is of the opinion that it is not expedient to hold regular enquiry on account of embarrassment to student or his guardians or such other practical difficulties. The commissioner shall record in writing the reasons under which it is not reasonably practicable to hold such enquiry and he shall keep the Chairman of the Sangathan informed of the circumstances leading to such termination of service. Before doing this, an enquiry is to be conducted by the committee and it will submit report before the Commissioner and if the 8 Commissioner found to be satisfied for deviating from initiating regular departmental enquiry, he can do so in exercise of power conferred under Article 81(b) of the Kendriya Vidyalaya Sangathana Education Code.
It is not in dispute that the provisions of Rules, 1965 is mutatis mutandis applied to the disciplinary proceeding initiated against employees of the Kendriya Vidyalaya Sangathan and the provisions made in the Kendriya Vidyalaya Sangathana Education Code is parameteria to the Rules, 1965. Under the provisions of Rules, 1965 it has been provided to impose major punishment by holding regular enquiry, i.e. by providing adequate and sufficient opportunity to the delinquent employee with an exception as contemplated under the provisions of Rule 19 which is parameteria to the provision of Article 81(b) of the Kendriya Vidyalaya Sangathana Education Code. The provision to hold regular enquiry is contemplated under Rule 14 of the Rules, 1965 which is in compliance to the provision as contained in Article 311 of the Constitution of India, i.e. by way of complying the principle of natural justice.
Sub-clause (2) of Article 311 contains exception, i.e.:
(a) Where a person is dismissed or removed or reduced in rank on the ground of conduct, which has led to his conviction on a criminal charge; or
(b) Whether the authority is empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) Whether the President or the Governor, as the case may be, is satisfied that in the interest of security of the State, it is not expedient to hold such enquiry.9
It is evident from the Constitutional provision as contained under Article 311 that the order of dismissal or removal can only be passed after providing adequate and sufficient opportunity of being heard to the delinquent employee subject to some exception, one of such exception is that the order of dismissal or removal can be passed without holding any enquiry, but by reflecting reasons to be recorded in writing to show that the enquiry is not reasonably practicable.
The provision to Article 311(2)(b) is attracted when the authority is satisfied from the materials placed before him that it is not reasonably practicable to hold a departmental inquiry. The authority empowered to dismiss etc. must record his reason in writing for denying the opportunity under Clause 2 before making the order of dismissal etc. and the reasons recorded must ex facie show that it was not reasonably practicable to hold a disciplinary enquiry. To emphasize, the provision of Rule 14 of Rules, 1965 is parameteria to Article 311 of the Constitution of India while the provision of Article 80 and 81(b) of the Kendriya Vidyalaya Sangathana Education Code the parameteria to Art.311(2)(b) of the Constitution of India.
On the subject, we thought it proper to have a discussion regarding the propositions laid down by the Hon‟ble Apex Court and the relevant is the judgment pronounced by Hon‟ble Apex Court in the case of Union of India v. Tulsiram Patel, AIR 1985 SC 1416, wherein at paragraphs 130 and 133, their Lordships have been pleased to hold as follows :
"130. The condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that "it is not reasonably practicable to hold" the inquiry contemplated by clause (2) of Article 311. What is 10 pertinent to note is that the words used are "not reasonably practicable" and not "impracticable". According to the Oxford English Dictionary "practicable"
means "Capable of being put into practice, carried out in action, effected, accomplished, or done; feasible". Webster's Third New International Dictionary defines the word "practicable" inter alia as meaning "possible to practice or perform: capable of being put into practice, done or accomplished:
feasible". Further, the words used are not "not practicable" but "not reasonably practicable". Webster's Third New International Dictionary defines the word "reasonably" as "in a reasonable manner: to a fairly sufficient extent". Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry. x x x"
"133. The second condition necessary for the valid application of clause (b) of the second proviso is that the disciplinary authority should record in writing its reason for its satisfaction that it was not reasonably practicable to hold the inquiry contemplated by Article 311(2). This is a Constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional."
The judgment rendered in the case of Jaswant Singh v. State of Punjab, (1991) 1 SCC 362 wherein their Lordships at paragraph 5 have been pleased to hold as follows:-
"The decision to dispense with the departmental enquiry cannot be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a court of law. it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer."
In the case of Avinash Nagra Vrs. Navodaya Vidyalaya Samiti and Others, reported in (1997) 2 SCC 534 in the similar nature of allegation, the Hon‟ble Apex Court while dealing with the subject, has been pleased to hold that the decision taken by the Director not to conduct any enquiry exposing the student and modesty of the girls and to terminate the services of the appellant by giving one month‟s salary and allowance in lieu of notice as he is a temporary 11 employee under probation, their Lordships have taken view that the conduct of the appellant is unbecoming of a teacher much less a loco parentis, and therefore, dispensing with regular enquiry under the rules and denial of cross-examination are legal and not vitiated by violation of principle of natural justice.
Hon‟ble Apex court in the case of Director, Navodaya Vidyalaya Samiti and Others Vrs. Babban Prasad Yadav and Another, reported in (2004) 13 SCC 568, after putting reliance upon the judgment rendered in the case of Avinash Nagra‟s case (supra) has been pleased to observe that in deviating from holding regular enquiry in a case of sexual harassment against the girl student, no illegality can be said to be committed.
In the case of Commissioner, Kendriya Vidyalaya Sangathan and Others Vrs. Rathin Pal (S.L.P.(C) No.4627 of 2008, decided on 16th August, 2010) their Lordships of the Hon‟ble Apex Court after taking into consideration the judgment rendered in the case of Avinash Nagra (supra) has been pleased to approve the decision taken by the competent authority by invoking the provision of Article 81(b) of the Kendriya Vidyalaya Sangathan Education Code dispensing with holding regular departmental enquiry before passing order of punishment in a case of sexual harassment towards the girl student.
7. We, in the light of these judgments of Hon‟ble Apex Court, have examined the factual aspects and on its perusal it is evident that a written complaint has been submitted by the father of the victim girl student of class-VII regarding sexual harassment by opposite party no.1, explanation was called for by the authority, i.e. Principal, Kendriya Vidyalaya, Charbatia, opposite party no.1 12 has given its explanation, the Principal has constituted a school-level preliminary enquiry committee, statement of victim girl student with others before preliminary committee have been recorded and the preliminary enquiry report has been submitted holding that the complaint made by the father of the victim girl is genuine.
We have gone through the preliminary enquiry report, perused the statements of the girl students including the victim girl and the lady teachers and found that the girl of such a minor age cannot tell lie regarding the fact which has been stated in her statement recorded by the preliminary inquiry committee.
We have also gone through the memorandum of appeal filed by the opposite party no.1 and from its perusal it is evident that the fault has been admitted by opposite party no.1 where he has said that the occurrence might have committed by him once or twice, but it is only by chance and not intentional, but thing is that a teacher who is imparting study in a co-educational institution cannot be expected to deal with the girl student in such a manner and as such we are also of the view that even the delinquent employee, the opposite party no.1 has admitted his guilt.
The statutory provision provides that the Commissioner is to act upon on the basis of the preliminary enquiry report, if he has to invoke the jurisdiction conferred to him under Article 81(b) of the Kendriya Vidyalaya Sangathana Education Code, we have found from the record that the preliminary enquiry report has been submitted before it, the statement of various girl students have been recorded including the lady teachers and it is not to be disbelieved that 13 the girl student will tell lie for false implication of the teacher who is imparting teaching to the students without any rhyme and reason, that too, a girl aged about 11 to 12 years.
The Commissioner, after going through the report submitted by the Committee constituted under the order of Asst. Commissioner of the Kendriya Vidyalaya Sangathana, has exercised the power conferred to him under Article 81(b) of the Kendriya Vidyalaya Sangathan Education Code by recording its reason that it is not practicable to hold regular enquiry in order not to embarrass the student who is a girl having the age of 11 to 12 years and the guardians subjecting them to examination and cross-examination and thereby deviated from holding regular departmental proceeding and accordingly imposed the punishment after issuing show cause notice to him to explain the reason as to why he will not be dismissed from service.
We have also found from the record that the delinquent employee has submitted his detail reply in terms of the show cause given by the Commissioner and the Commissioner, after taking into consideration the reply having not found to be satisfactory and accepting the statement of the girl students including the lady teachers, has dismissed him from service.
The opposite party no.1 has preferred an appeal before the competent appellate authority wherein he has stated that the occurrence might have committed by him once or twice but the explanation given to that effect that it is by chance but not intentional but according to us even if it is not intentional the question is why a teacher will commit such type of behaviour with the girl 14 students studying in class-VII and further more whether it was intentional or non- intentional, it cannot be assessed by going through the mind of the teacher and further it is expected from every one that they must remain under their parameter and behave rationally and with morale.
The appellate authority after taking into consideration the various grounds taken by o.p.1 in the memorandum of appeal has declined to interfere with the final order of dismissal by rejecting it. The opposite party no.1, being aggrieved with the order of dismissal and the appellate order, has preferred original application before the Central Administrative Tribunal and the Central Administrative Tribunal, Cuttack Bench, Cuttack, after taking into consideration the submission of the opposite party no.1 that even in the preliminary enquiry he has not been provided with an opportunity to participate in the same and the enquiry has been conducted behind his back, the order of dismissal has been quashed and set aside which is under challenge in this writ petition.
The provisions of the Kendriya Vidyalaya Sangathana Education Coder as contained in Article 81(b) which provides that where the commissioner is satisfied after such a summary enquiry as he deems proper and practicable in the circumstances of the case that any member of the Kendriya Vidyalaya is prima facie guilt of moral turpitude involving sexual offence or exhibition of immoral sexual behaviour towards any student, he can terminate the service of employee by giving him one months‟ or three months pay and allowances, accordingly as the guilty employee is temporary or permanent in the service of the Sangathan. 15
In such cases procedure prescribed for holding enquiry for imposing major penalty in accordance with Rules, 1965 as applicable to the employees of the Kendriya Vidyalaya Sangathan, shall be dispensed with, provided that the commissioner is of the opinion that it is not expedient to hold regular enquiry on account of embarrassment to the student or his guardian or such other practical difficulties. The commissioner shall record in writing the reason under which it is not reasonable practicable to hold such enquiry and he shall keep the Chairman of the Sangathan informed of the circumstances leading to such termination of service. Under the note it has been provided that wherever and as far as possible summary enquiry in the complaint of immoral behaviour by a teacher towards a student of Kendriya Vidyalays may be got investigated by the complaints redressal committee constituted in the regional offices.
We have found from the record that on complaint being received from the father of the victim girl student a complaint redressal committee was constituted by the Asst. Commissioner, Kendriya Vidyalaya Sangathana, who have called upon the girl students including the lady teachers, who have deposed regarding the truthiness of the allegation leveled against opposite party no.1 and accordingly the Commissioner has proceeded with the matter, by deviating from the initiation of regular departmental proceeding by recording specific reasons thereof, hence according to us, the reasons stipulated in the order of dismissal cannot be said to be erroneous in the facts and circumstances of the instant case.
So far as the ground that opposite party no.1 has not been provided with an opportunity to participate in the enquiry conducted by the committee, we have not found anything on record or under the statute that in case enquiry to be 16 conducted, the opportunity of being heard is to be provided to the teacher against whom the allegation of sexual harassment has been leveled, rather the provision of Article 81(b) of the Kendriya Vidyalaya Sangathan Education Code stipulates that whether the Commissioner is satisfied after such a summary enquiry as he deems proper and practicable in the circumstances of the case that any member of the Kendriya Vidyalaya is prima facie guilty of moral turpitude involving sexual offence or exhibition of immoral sexual behavior towards any student, he can terminate the services of that employee by giving him one month‟s or three months pay and allowances. In such cases, procedure prescribed for holding enquiry for imposing major penalty in accordance with CCS (CCA) Rules, 1965 as applicable to the employees of the Kendriya Vidyalaya Sangathan, shall be dispensed with, provided that the „Commissioner‟ is of the opinion that it is not expedient to hold regular enquiry on account of embarrassment to student or his guardians or such other practical difficulties. The „Commissioner‟ shall record in writing the reasons under which it is not reasonably practicable to hold such enquiry.
According to our conscious view, the Commissioner has not exceeded his jurisdiction, rather he has passed order in consonance with the power conferred upon him under Article 81(b) of the Kendriya Vidyalaya Sangathan Education Code and in terms thereof he has given specific reasons for deviating with the established procedure for imposing major penalties.
Moreover, the Commissioner before imposing the punishment of dismissal, has issued a show cause notice upon opposite party no.1 which has been replied in detail and after going through the response the order of dismissal has been passed and as such it is not a case that the petitioner has not been 17 heard, the only question is that the initiation of regular departmental proceeding and as to whether this case is coming under the exception as to cover under the provision of Article 81(b) of the Kendriya Vidyalaya Sangathana Education Code which we have already discussed in detail in preceding paragraphs and answered it, hence the argument advanced on behalf of opposite party no.1 basis upon which the order of dismissal has been found to be incorrect by the Tribunal is not seems to be sustainable.
We have also seen in the order passed by the Tribunal, in which it has been observed that;
"The girls cannot be exposed during enquiry, but certainly that principle cannot be applied in so far as collecting evidence in presence of the parents of the members of teaching and nonteaching staff of the school".
But we are not in agreement with this observation, reason being that either before the parents or the members of teaching and non-teaching staff of the school, the girl student having such a tender age will be put to embarrassment in course of collecting evidence, which is admittedly through examination and cross- examination of the victim girl student, allowing this it will certainly create embarrassment to victim girl students who have been subjected to harassment, that too by her own teacher.
8. The opposite party no.1 has submitted a written note of submission wherein, apart from the factual aspects, reliance has been placed upon various judgments of Hon‟ble Apex Court. In the cases of Narinder Mohan Arya Vrs. United India Insurance Company Ltd, reported in (2006) I SCC (L&S) 840 and 18 Moni Shankar Vrs. Union of India & Another, reported in (2008) I SCC (L&S) 819, proposition has been laid down regarding the power of judicial review for the purpose of re-appreciating the evidence in order to take contrary view from the view of the disciplinary authority.
There is no dispute about the settled proposition of law as reflected in the Judgments referred in preceding paragraphs, but it is also settled that no judgment is of its universal application, rather the same is to be seen on the facts and circumstances of each and every case, the power of judicial review is vested upon the Court of Law for the purpose of judicially scrutinize the finding given by the disciplinary authority, but here in the instant case completely different situation is there since the question fell before this court regarding power of judicial review of an order of dismissal which has been passed against a teacher of an allegation of moral turpitude towards a girl student of about 11 to 12 years of age, the girl student, while deposing before the committee constituted for summary enquiry, has deposed regarding truthiness of the allegations and in that situation it would not be advisable for this Court to scrutinize the evidence given by the teen aged girl for the purpose of exercising the power of judicial review by assuming the power of disciplinary authority or enquiry committee.
Furthermore, it is not a trial of criminal case where the evidence, without any reasonable doubt is to be taken into consideration, rather it is a case of disciplinary enquiry where the preponderance of probability is required to be seen and from the facts and circumstances of the case, we have stated herein above that why a girl student aged about 11 to 12 years of age will depose against her teacher without any rhyme and reason, moreover, the opposite party no.1 19 himself has admitted in the memorandum of appeal that the occurrence might have been committed by him once or twice but it is not intentional, in that view of the matter there is no question of re-appreciating the evidence for the purpose of judicial review of the order of dismissal, hence these judgments are not applicable in the facts and circumstances of the instant case.
So far as the judgments rendered by Hon‟ble Apex Court in the cases of S. N. Mukherjee Vrs. Union of India, reported in 1990 SC 1984 and Divisional Forest Officer, Kothagudem and Others Vrs. Madhusudan Rao, reported in (2008) 1 SCC (L&S) 788, the ratio decided in these cases are regarding reasons to be assigned by the disciplinary authority, these judgments are also not applicable, reason being that in the order passed by the Commissioner or the appellate authority, reasons have been assigned by the authorities concerned basing upon the finding given by the summary enquiry committee as also the reply submitted by the opposite party no.1.
9. We, after having appreciated the factual aspect and dealing it with the proposition laid down by the Hon‟ble Apex Court in the cases of Union of India Vrs. Tulsiram Patel (supra), Jaswant Singh Vrs. State of Punjab (supra), Avinash Nagra Vrs. Navodaya Vidyalaya Samiti and Others (supra), Director, Navodaya Vidyalaya Samiti and Others Vrs. Babban Prasad Yadav and Another (supra) and Commissioner, Kendriya Vidyalaya Sangathan and Others Vrs. Rathin Pal (supra), are of the considered view that the competent disciplinary authority has not committed error in exercising power conferred upon him under Article 81(b) of the Kendriya Vidyalaya Sangathana Education Code 20 taking into consideration the nature of allegation and the teen age of the girl student who is studying in class-VII.
Accordingly, in our considered view the order passed by the Tribunal is not sustainable in the eye of law, hence the same is set aside, in the result the order of dismissal is restored.
The writ petition stands allowed.
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S.N.Prasad, J.
Sanju Panda, I agree.
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Sanju Panda, J.
Orissa High Court, Cuttack,
Dated the 17th February, 2017/mkp