Central Administrative Tribunal - Hyderabad
V Balakrishna Rao vs M/O Human Resource Development on 16 March, 2022
OA/020/00984/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH
HYDERABAD
OA/020/00984/2015
Date of CAV:03.03.2022
Order Pronounced on: 16.03.2022
Hon'ble Mr. AshishKalia, Judl. Member
Hon'ble Mr. B.V. Sudhakar, Admn. Member
Between:
V. Bala Krishna Rao, S/o. late V. Sanyasi Rao,
Aged 66 years, Occ: Ex.TGT (Maths),
Kendriya Vidyalaya, Visakhapatnam,
R/o. MIG 28, Ratnagiri Housing Colony,
PM Palem, Visakha - 530041.
... Applicant
(By Advocate: Mr. D. Linga Rao)
Vs.
1. The Union of India Rep. by its Secretary to the Govt.,
Ministry of Human Resources Development,
Shastri Bhavan, New Delhi.
2. The Additional Secretary (HE), M/HRD,
Vice Chairman, Kendriya Vidyalaya Sangathan, New Delhi.
3. The Commissioner,
Kendriya Vidyalaya Sangathan,
18, Institutional Area, SIS Marg, New Delhi - 110 602.
4. The Assistant Commissioner,
Kendriya Vidyalaya Sangathan,
Regional Office, Hyderabad.
5. The Principal
Kendriya Vidyalaya,
Steel Plant, Visakhapatnam, Andhra Pradesh.
....Respondents
(By Advocate: Mr. Ajay Kumar, Proxy counsel for
Mr. B.N. Sharma, SC for KVS)
Page 1 of 23
OA/020/00984/2015
ORDER
(As perHon'bleMr. B.V. Sudhakar, Admn.Member)
2. The OA is filed challenging the termination of services of the applicant.
3. Brief facts of the case are that the applicant while working as a Trained Graduate Teacher (for short TGT) in the respondents organization was placed under suspension based on a complaint submitted by Smt. V.Suguna, the mother of a VII class girl student alleging molestation. Thereafter, a show cause notice was issued on 13.8.2009 invoking Rule 81 (B) of the Education Code indicating the last date to submit the reply as 25.8.2009. Without receipt of his reply, the services of the applicant were terminated on 28.8.2009 and hence the OA.
4. The contentions of the applicant are that his services were terminated just 3 days before his retirement date of 31.8.2009 in haste by R-3. The applicant has submitted the reply by fax, speed post and registered post to the concerned on 25.8.2009. Applicant sought time up to 31.8.2009 since a bundle of papers running into 142 pages were delivered to the applicant along with the show cause notice to submit his reply and further, as the notice related to depriving the livelihood of the applicant. The complaint submitted is false and motivated. Appeal preferred, by stating that there was no complaint against him in his 7 years of service at the particular school, entire staff deposed before the inquiry committee that he was sincere, complainant withdrew the complaint on 17.4.2009/21.4.2009 and that his reply was incorrectly reported to have not been received; was rejected mechanically by R-2 on 4.1.2010 without considering the Page 2 of 23 OA/020/00984/2015 contentions raised. The statements given by the Teachers and the Principal, which were in favour of the applicant were not considered. There is no rule to reopen a closed complaint. As a regular inquiry was dispensed with and a summary inquiry was conducted in the absence of the applicant, at least the material on record ought to have been gone through carefully rather than mechanically. Had a regular inquiry been instituted, the applicant would have mounted a valid defense. The impugned order are vitiated since the complaint was withdrawn and moreover, the Principles of Natural justice were not followed. CCS (CCA) Rules apply to the staff of the respondents organization. Rules 11 & 14 of the said Rules have not been followed. Applicant represented for grant of pensionary benefits considering his service of 30 years and the same stands rejected on 22.6.2015. Termination is not a mode of penalty prescribed under the rules and it does not entail forfeiting of past service by illegal proceedings to deny terminal benefits. Further, Rule 24 does not apply since the applicant was not dismissed/ removed to reject the request made. At least compensation allowance ought to have been granted under Rule 41 of CCS (Pension) Rules. The applicant is aged 66 years (in 2015) and has no source of livelihood to eke out a living at the fag end of his life. The impugned orders are unjust, unfair, arbitrary and illegal. Applicant cited the judgments of the Hon'ble Apex Court in support of his contentions.
5. Respondents per contra state that to safeguard the interests of female students and protect them from the immoral behavior of teachers Article 81 (B) of the Education Code has been framed by the competent authority in the respondents organization. A complaint was received from the mother of Page 3 of 23 OA/020/00984/2015 a girl student on 9.4.2009 stating that the applicant has misbehaved with her daughter while clearing a doubt in Maths. Preliminary inquiry held by a committee found that the applicant was prima facie guilty on 13.4.2009 and therefore, another committee was constituted to conduct summary inquiry on 26.6.2009. The dictum laid by the Hon'be Apex Court in Director, NVS & Ors v. Babban Prasad Yadav in SLP (C) No. 9808 of 2002 was followed in conducting the summary inquiry under the said code, wherein the applicant was found guilty of exhibiting immoral behavior with a girl student on 08.04.2009 and therefore, his services were terminated on 28.8.2009. From the inquiry, it was revealed that the applicant had a past history of misbehaving with girl students. In cases of sexual offences, the need to conduct regular inquiry under CCS (CCA) Rules is dispensed with provided the Commissioner is of the opinion that regular inquiry is not expedient on account of embarrassment to the girl student/guardian or other such practical difficulties. The opinion has to be recorded in writing. Meanwhile, the applicant sought voluntary retirement, which was rejected on 4.8.2009. R-3 gave notice to the applicant and since no reply was received by the stipulated date, the services of the applicant were terminated. Appeal preferred was rejected after hearing the applicant in person. The mercy petition filed by the wife of the applicant for pensionary benefits, was rejected by informing her on 21.10.2014/ 22.6.2015 that consequent to termination, an employee is ineligible for pension. The appellate order is dated 4.1.2010 and therefore the OA filed in 2015 is barred by limitation. The applicant admitted in the preliminary inquiry and by his letter dated 13.4.2009 that the complaint given against him is true and he apologizes for the same (R-1). During the summary inquiry, the Page 4 of 23 OA/020/00984/2015 applicant was given an opportunity to present his case. The notice was delivered to the applicant on 17.08.2009 wherein it was indicated that if the reply was not given within the specified period, it would be presumed that he has no reply to offer. The contention of the applicant that he has sent the reply by fax, speed post and registered post is not true, as they were not received by any authority even by 28.8.2009. Further, the applicant has not sought any extension of time and in fact, the applicant could have submitted the document to R-5 and taken acknowledgment. The discipline and Appellate authority considered the submissions made and thereafter imposed/ confirmed the penalty as per rules. The withdrawal of the complaint has no consequences. Grant of compassionate allowance under Rule 41 of CCS (Pension) Rules would not arise for misconduct.
Both the applicant and the respondents have submitted written submissions which have been gone through carefully.
6. Heard both the Counsel and perused the pleadings on record.
7. I. The dispute is about the termination of the services of the applicant. The facts are that the applicant while working as TGT in the respondents organization is alleged to have been involved in immoral behavior with a girl student of VII standard and for the same, respondents invoked Article 81 (B) of the Education Code to terminate the services of the applicant vide impugned orders under reference. Apparently, the OA is barred by limitation since the cause of action arose in 2009/2010 and the OA was filed in 2015. However, as the OA was admitted and no objection was raised at the time of its admission by the respondents, it would not be fair to dismiss the OA at this juncture of time when it has come up for final Page 5 of 23 OA/020/00984/2015 adjudication after a lapse of 7 years. Therefore, we proceed to adjudicate the dispute in the succeeding paras.
II. To begin with, the applicant was issued a show notice on 13.08.2009 invoking Article 81 (B) of the Education code indicating the last date to submit the reply as 25.8.2009. For having not received the reply even by 28.08.2009, respondents terminated the services of the applicant vide memo dated 28.08.2009. The applicant states that he sent his reply by fax, speed post and registered post on 25.8.2009. By appending the speed post/ Registered receipts to the OA dated 25.8.2009, the applicant claims that he has submitted the reply. The Show cause notice makes it clear that the reply has to be received by 25.8.2009 which the applicant could have complied by submitting the same to the Principal (R-5) and taken acknowledgement evidencing submission in time. It is not known as to why the applicant has not done so when it was easy and convenient to hand over the documents to the Principal, who was locally placed. Had he done so, the controversy would not have arisen. Similarly, in respect of the request made for extension of time to submit the reply. Respondents state that they have not received the reply or the letter seeking extension of time. When a sensitive matter pertaining to the livelihood of the applicant was being dealt, it was incumbent upon him to ensure that his reply or request for extension reaches the respondents in the time schedule prescribed. More over, when there was an avenue of presenting the reply through the Principal, it could have been utilized for the purpose of good evidence. The applicant not availing the same is his mistake and not that of the Page 6 of 23 OA/020/00984/2015 respondents. In sum and substance, the reply was not received by R-3 in time and hence, the order of termination on 28.8.2009. III. The applicant claims that the complaint dated 9.4.2009 is false and motivated and that that it was withdrawn on 27.4.2009 by addressing the Asst. Commissioner, Kendriya Vidyalaya, Secunderabad. The report of the Summary Inquiry dated 4.8.2009 submitted by a 3 member committee at para 2.3 reads as under:
"Mrs. Suguna, M/o. Ku. Nandita had withdrawn the complaint letter written against Mr. V.B. Rao, TGT (Maths) on the basis of the assurance given by the authorities of the Vidyalaya that he will not be allowed to enter the school till his retirement (i.e. 31.08.2009). But, Mr. V.B. Rao is attending school after reopening of the Vidyalaya (after Summer Vacation). (Vide e-mail addressed to the Assistant Commissioner - Page No.10)."
The complaint per se indicates that the applicant while clearing a doubt in Maths has held complainant's daughter tightly with his left hand and pressed her chest with the right hand. The withdrawal letter was given based on the assurances given by the concerned authorities. The complainant desired that the applicant shall not attend the school till his retirement as is seen from the summary report. Effectively the withdrawal was thus conditional as per the summary report. The concerned authorities have not complied with their assurances and therefore the parent's withdrawal letter cannot be treated as withdrawal of the complaint since the condition to not to allow the applicant to work as teacher till his retirement was not met. The committee has also observed that the complainant was pressurized to withdraw the complaint in its last para of the report. In fact, the applicant has admitted that the complaint is true as per his letter which is extracted hereunder:
Page 7 of 23
OA/020/00984/2015 "The complaint given on me on 08/04/09 by parent V. Suguna is true and I strongly apologize.
Dated: 13.04.09 Sd/xxx
Place: Visakhapatnam (V.B. Rao)"
The ld. Counsel for the applicant pleaded that the said letter was given under duress in view of the protests organized by the complainant and therefore lacks sanctity. Even presuming so, the applicant was given reasonable opportunity to present his case before the summary committee and the said committee after due deliberations has come to the conclusion that the applicant was guilty of immoral behavior. It should not be forgotten that a mother would not make a complaint of the nature in question since it would have far reaching psychological ramifications on the behavior of the child who is the victim. Unless it is too serious and in compelling circumstances such complaints would not be made. The summary report also cites the instances of misbehavior of the applicant with other girl students of different classes at para 5.14 as under:
"5.14 Instances of such nature (misbehaving with girl children) happened with some other girl children also. (vide her letter-dated 09.04.2009 - Page 4).
5.15 All the fourteen girls of Class VII D commented adversely on the misbehavior of Mr. V.B. Rao, TGT (Maths) in the written statements they made before the Summary Inquiry Committee. Similarly, all the 18 girl students of Class VIII B and 24 girls of XC stated about the range of his misbehavior with them. The misbehaviours as stated by the students are given below:
(i) Touching the shoulder and chest and pressing, pinching the waist, hands, hugging etc (Vide page No.11 - ("making round and round on Kusuma‟s chest") -, 18, 19, 21, 22, 24, 25, 29, 30 (Touched Kusuma tightly and circled on her chest), 31, 32, 33, 35, 37, 44, 45, 47, 48, 51, 52, 53, 54, 55, 56, 58, 61, 62, 63, 68, 70, 72, 74 ("Touching the badge - means on bad location"), 83, 84, 90, 92))
(ii) Touch the back and pressing and misbehaving, (vide page No. 19, 21, 27, 32, 37, 47, 48, 49, 50, 57, 58, 68, 69, 72, 77, 83)
(iii) Putting the hands inside girl‟s pockets (48, 49, 50)
(iv) Scolding, using bad language, rude language, beating, kicking, touching here and there, misbehaving, touching the back and pressing Page 8 of 23 OA/020/00984/2015 (vide page No.20 & 21, 22, 29, 38, 39, 40, 43, 44, 48, 50, 51, 56, 57, 61, 62, 63, 65, 68, 76).
(v) Pushing a girl badly resulting in the girl getting hurt on her knees: (Vide page No. 75, 78, 79).
(vi) Holding hands, pressing hands, dragging by the hand etc; (Vide page No.39, 45, 46, 48, 55, 56, 72, 74, 75, 76, 78, 82, 85, 86, 87, 88, 89, 92, 93)
(vii) Kissing the girls: (Vide page Nos. 39, 41, 44, 45, 46, 47, 49, 50, 53, 55, 57, 58)
(viii) Entering girls‟ toilet on some pretext (51, 56, 57) 5.16 In addition to the list of abhorrent behaviors, Mr. V.B. Rao indulging in the following activities also have been stated by the students:
(a) Using Telugu to teach and school. (b) Showing preference to girls for doing all sorts of work. (c) Calling girls to the staff room. (d) Using rude language with parents (e) Coming late to the class and missing the class (f) And Blackmailing the students. 5.17 The repulsive behavior of the teacher created a range of emotions
in the children, which they expressed in writing during the course of the Summary Inquiry. Some of them are given below:
(a) I do not like that Sir (24, 30, 31)
(b) It is horrible for us to manage it - the behavior of Mr. V.B.
Rao (26)
(c) I do not like V.B. Rao Sir because that sir was behaving
badly with girls only (27, 44)
(d) V.B.Rao is very bad character..we are afraid of going near
him, sir is very bad etc. (28, 33)
(e) He has had behaviors (32); I do not like his behavior, he is
not good (40)
(f) We always feel insecure with his behavior (39)
(g) I did not like his behavior; he is not a good person, when he
touches my body I got so much crying and I cried. But I did not tell my parents because it will become a big problem (41, 42)
(h) I was so scared of him and want to beat him and I want to tell him that your behavior is not nice (46)
(i) I hate that sir; these dirty behaviours, I do not like (47)
(j) We are feeling so uneasy with him (52)
(k) Don‟t leave sir, he has to be punished severely (55) Page 9 of 23 OA/020/00984/2015 5.18 The students of Classes VII, VIII and X came out in detail and used words like dirty, indecent, bad, cheap etc. to describe the behavior of Mr. V.B. Rao. It is clear from the statements of the students‟ - boys as well as girls - of the classes he had taught that his behavior was totally unbecoming of a teacher and that he was indulging in objectionable sexual acts like making unwarranted physical advances, touching the various body parts of the girls in an indecent manner, showed all sorts of unethical behaviours, and above all left an indelible scare on the minds of young children.
5.19 When asked Mr. V.B. Rao, he simply stated that he used to pat them and do handshake with them for encouraging them to do well. And he denied having scolded or beaten the students (vide page No. 107). 5.20 The lady teachers of the Vidyalaya who need to be with the girls seemed to have failed in their responsibility of winning over the minds and hearts of the students. Had they not chosen to ignore the closeness of Mr. V.B. Rao and had they talked to girls as mothers, the children would have come out of their woes. Their statements that the girls did not tell them the misbehavior of Mr. V.B. Rao showed their callous attitude towards their own students. (Vide page No. 113 to 115). The statements of the students clearly vindicate the allegation made by Mrs. Suguna M/o. Ku. Nandita of Class VII D. "
Therefore, it is clear that applicant is prone to misbehave with girl students and dong so with the child of the complainant cannot be denied. We are disturbed with the submissions of the children as recorded at para 5.17 and we are shocked that in a reputed institution like the respondents' organization under the GOI such things happen over a period of time and the management acts only when complaints are received. Sadly there is not even a whisper about the preventive measures taken by the respondents.
Teacher is more is like a Guru and he moulds the character of the children in their formative years. If they come across with dreadful instances as reported in the instant case they would tend to develop deviant behavior which is not good for them or to the Nation. Besides, the other contention of the applicant that staff members deposed before the committee that he was sincere is not in the realm of reason given the ghastly facts brought out in the summary inquiry. Similarly, the evidence of the teacher and the Page 10 of 23 OA/020/00984/2015 Principal which were claimed to be in favour of the applicant would not help the applicant given the findings of the committee and its castigation of the Principal/ Vice Principal/ 2 teachers at para 5.26 of the report. The submission of the applicant that there is no rule to reopen a closed complaint does not hold good in the teeth of the developments related to the complaint as expounded above. Therefore, considering the facts as brought out by the summary report it cannot be said that the complaint was motivated and false as contended by the applicant.
IV. The applicant submits that had a regular inquiry been conducted he could have defended himself ably. The Article 81 (B) of the Education Code is a special provision to safe guard the girl student from the immoral behavior of the teachers. The code is extracted is hereunder:
"(b) Termination of Services of An Employee Found Guilty of Immoral Behavior Towards Students 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 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 3 month‟s 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 Sanghathan, shall be dispensed with, provided that the Commissioner is of the opinion that it is not expedient to hold regular enquiry on account of serious embarrassment to the 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 services.
Note: Wherever and as far as possible a summary inquiry against the complaint of immoral behavious by a teacher towards the students of Kendriya Vidyalaya may be got investigated by the Complaints Redressal Committee constituted in the regional offices."
In accordance with the code the respondents conducted the preliminary inquiry by constituting a committee which submitted a report on Page 11 of 23 OA/020/00984/2015 13.04.2009, wherein the applicant was found prima facie guilty. Based on the report of the findings of the Preliminary Committee, a Summary Committee was constituted on 26.06.2009 to go into the complaint. The said committee conducted enquiry on 7th & 8th of July 2009 and submitted a detailed report dt.04.08.2009 holding the applicant guilty of immoral behavior. The Committee has touched upon 3 main allegations as under:
"Allegation No.1:
5.1 The allegation is that on 08.04.2009, Mr. V.B. Rao, Maths Teacher „held‟ Ku. Nandita D/o. Mrs. Suguna „tight with his left hand and pressed her very harshly at her chest with his right hand‟. This happened when she asked some doubts about the subject to Mr. V.B. Rao, during the Mathematics period."
"Allegation No.2 5.14 Instances of such nature (misbehaving with girl children) happened with some other girl children also. (Vide her letter dated 09.0.2009 - Page 4)."
"Allegation No.3 5.21 Mrs. Suguna, M/O. Ku. Nandita had withdrawn the complaint letter written against Mr. V.B. Rao, TGT (Maths) on the basis of the assurance given by the authorities of the Vidyalaya that he will not be allowed to enter the school till his retirement (i.e on 31.08.2009). But, Mr.V.B. Rao is attending school after reopening of the Vidyalaya (after Summer Vocation). (Vide e-mail addressed to the Assistant Commissioner - Page No.10)."
Each of the allegation has been held to be proved as under:
"5.13 The statement of students and teachers provide corroborative evidences, which point to the fact that Mr. V.B. Rao misbehaved with the girl student Ku. Nandita. His act of holding her tight with the left hand and pressing her hand on her chest, which are variedly described by the students and teachers as pressing on the chest, squeezing the chest etc., has thus been established."
"5.20 The lady teachers of the Vidyalaya who need to be with the girls seemed to have failed in their responsibility of winning over the minds and hearts of the students. Had they not chosen to ignore the closeness of Mr.V.B. Rao and had they talked to girls as mothers, the children would have come out of their woes. Their statements that the girls did not tell them the misbehavior of Mr. V.B. Rao showed their callous attitude towards their own students. (Vide page No. 113 to 115). The statements of the students clearly vindicate the allegation made by Mrs. Suguna, M/O. Ku. Nandita of Class VII D."Page 12 of 23
OA/020/00984/2015 "5.26 Neither the behavior of the Principal, nor the behavior of the Vice- Principal and two teachers (Mr. Mishra and Mrs. P.SN Raju) in taking the serious matter lightly could be condoned. The apparent effort of them to hush up the matter to save the offender is evident from the statements of the parents and that of the Principal and the Vice-Principal and the teacher Mr. A.K. Mishra. Therefore, the pain of the parent as written to the Assistant Commissioner, proved to be real, and the responsibility for causing pain rests on the school authorities, which acted imprudently in a matter that requires serious and timely action."
6. Findings & conclusions of the Inquiry:
6.1 The first allegation that "on 08.04.2009, Mr. V.B. Rao, Maths Teacher „held‟ Ku. Nandita D/o. Mrs. Suguna „tight with his left hand and pressed her very harshly at her chest with his right hand‟. This happened when she asked some doubts about the subject to Mr. V.B. Rao, during the Mathematics period" has been established. The teacher‟s misbehavior is well documented and there are corroborative evidences to that effect. 6.2 The second allegation that "Instances of such nature (misbehaving with girl children) happened with some other girl children also (Vide her letter dated 09.0.2009 - Page 4)." Has been established conclusively. The unanimous statements of the girls and boys of the classes VII D, VIII B and X C (the classes which are allotted to Mr. V.B. Rao) with graphic details of the misbehaviors of varying nature prove that the teacher was indulging in objectionable sexual acts like making unwarranted physical advances, touching the various body parts of the girls in an indecent manner, showed all sorts of unethical behavious, and above all left an indelible scare on the minds of young children.
6.3. The third allegation that "Mrs. Suguna, M/O. Ku. Nandita had withdrawn the complaint letter written against Mr. V.B. Rao, TGT (Maths) on the basis of the assurance given by the authorities of the Vidyalaya that he will not be allowed to enter the school till his retirement (i.e on 31.08.2009).
But, Mr.V.B. Rao is attending school after reopening of the Vidyalaya (after Summer Vocation). (Vide e-mail addressed to the Assistant Commissioner - Page No.10)" too has been proved. The insensitive manner in which the Principal, the Vice Principal and the teachers dealt with the case was evident in their trying to (i) desist the parent from making the complaint (ii) delaying the conduct of preliminary inquiry and in pressurizing the parent to withdraw the complaint in order to save the unscrupulous teacher." The summary report is precise, analytical and to the point establishing the misbehavior of the applicant with the girl child. Importantly the summary inquiry was conducted by adopting the procedure prescribed by the Hon'ble Apex Court in Director, NVS & Ors. v. Babban Prasad Yadav in SLP (C) No.9808 of 2002 on 02.05.2003 as under:
Page 13 of 23
OA/020/00984/2015 "1. Holding of summary inquiry.
2. A finding in such summary inquiry that the charged employee was guilty of moral turpitude.
3. The satisfaction of the Disciplinary Authority on the basis of such summary inquiry that the Charged Officer was prima facie guilty.
4. Satisfaction of the Disciplinary Authority that it was not expedient to hold an enquiry on account of serious embarrassment to be caused to the student or his guardians or such other practical difficulties.
5. The recording of the reasons in writing in support of the aforesaid."
Further, the Hon'ble Apex Court in K.V. Sangathan v Ratin Pal in SLP no 4627/2008 on 16.8.2010 has upheld the penalty imposed by the Commissioner by invoking Article 81(B) of the Education Code. The respondents claim that in the show cause notice issued to the applicant, they have cited the verdict of the Hon'ble Apex Court in Avinash Nagra v Navodaya Vidyalaya Samiti in Civil Appeal No. 14526/1996 in regard to the procedure to be followed under the education code referred to. The same was not rebutted by the applicant.
Thus, from the above, it is seen that, Article 81 (B) has passed the legal scrutiny of the Hon'ble Apex Court on many an occasion and therefore the contention of the applicant that regular inquiry instead of summary inquiry had to be conducted has no muscle in it. In fact the version of the applicant was also considered by the summary committee. Therefore it is incorrect on part of the applicant to state that the Principles of Natural Justice have not been followed by the respondents. V. The Article 81 (B) is like a special legislation and it would reign over any general rules like Rules 11 & 14 of the CCS (CCA) Rules. We take support of the Hon'ble Supreme Court Judgment in Managing Director, Chhattisgarh State Cooperative Bank, Maryadit vs. Zila Sahakari Page 14 of 23 OA/020/00984/2015 Kendriya Bank, Maraydit Citation :: 2020 Latest Caselaw 239 SC Judgment Date : 04 Mar 2020, as under, to affirm the above assertion:
31 xxx Where two provisions conflict, courts may enquire which of the two provisions is specific in nature and whether it was intended that the specific provision is carved out from the application of the general provision. The general provision operates, save and except in situations covered by the specific provision. The rationale behind this principle of statutory construction is that were there appears a conflict between two provisions, it must be presumed that the legislature did not intend a conflict and a subject-specific provision governs those situations in exclusion to the operation of the general provision. 32 xxx Consequently, where an enquiry was pending under Clause 23, an application under Clause 5(a) was barred. The Court held:
"9...We reach the same result by applying another well known rule of construction that general provisions yield to special provisions. The learned Attorney-General seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provision in one Act and the special provision in another Act, the rule cannot apply in resolving a conflict between general and special provisions in the same legislative instrument. This suggestion does not find support in either principle or authority. The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and Judges but springs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect.
10. Applying this rule of construction that in cases of conflict between a specific provision and a general provision the specific provision prevails over the general provision and the general provision applies only to such cases which are not covered by the special provision, we must hold that clause 5(a) has no application in a case where the special provisions of clause 23 are applicable."
33. XXX
29...It is well established that when a general law and a special law dealing with some aspect dealt with by the general law are in question, the rule adopted and applied is one of harmonious construction whereby the general law, to the extent dealt with by the special law, is impliedly repealed. This principle finds its origins in the latin maxim of generalia specialibus non derogant..." Xxx The principle that the general provision excludes the more specific has been consistently applied by this Court in South Indian Corporation (P) Ltd. v. Secretary, Board of Revenue, AIR 1964 SC 207, Paradip Port Trust v. Their Workmen, AIR 1977 SC 36, Maharashtra State Board of Secondary and Higher Education v. Paritosh Bhupesh Kumar Sheth, (1984) 4 SCC 27, CCE v. Jayant Oil Mills, (1989) 3 SCC 343 P S Sathappan v. Andhra Bank Ltd, (2004) 11 SCC 672, Sarabjit Rick Singh v. Union of India, Page 15 of 23 OA/020/00984/2015 (2008) 2 SCC 417 and Pankajakshi v. Chandrika, (2016)6 SCC 157.
VI. One another contention of the applicant is that the orders of disciplinary & appellate authority were mechanical in nature. We have gone through the orders and find that the relevant aspects have been touched citing the circumstances /rules, under which, the penalty was imposed. Hence it cannot be said that the orders are mechanical in nature. VII. The wife of the applicant represented for pensionary benefits and the same was negated by the respondents on 21.10.2014 / 22.6.2015. Once the services are terminated there is no employee - employer relationship to grant any sort of pension. The claim of the applicant that termination of services is not a mode of penalty prescribed under the rules is incorrect since the education code of KVs enclosed to the OA under Article 81 (B) speaks of 'Termination of services of an employee found guilty of immoral behavior towards students'. The Education Code has legal legitimacy as per the verdicts of the Hon'ble Apex Court verdicts cited supra. The contention of the applicant that termination of the services would not forfeit the past services is farfetched. Termination of services is an end to the career of the applicant in the respondents organization. It is akin to dismissal/removal wherein employees who suffer such penalties are not granted pension and pensionary benefits as per relevant Rules. The applicant has not produced any rules of the respondents organization to claim that he has to be paid terminal benefits when his services are terminated under the special dispensation of Article 81 (B) of Education Code. Grant of compassionate allowance / pension under Rule 41 of the Page 16 of 23 OA/020/00984/2015 CCS (Pension) Rules, 1972 is the discretion of the respondents based on special consideration and the overall conduct of the applicant. Rule 41 of the said Rules reads as under:
"41. Compassionate allowance (1) A Government servant who is dismissed or removed from service shall forfeit his pension and gratuity:
Provided that the authority competent to dismiss or remove him from service may, if the case is deserving of special consideration, sanction a compassionate allowance not exceeding two - thirds of pension or gratuity or both which would have been admissible to him if he had retired on compensation pension.
(2) A compassionate allowance sanctioned under the proviso to sub-
rule (1) shall not be less than the amount of Rupees three thousand five hundred per mensem."
The applicant's misconduct has been proven and hence, the claim for pension under Rule 41 cited, lacks justification. VIII. The respondents have filed the judgments of the superior judicial fora as under, to support their contentions:
The Hon'ble Apex Court in Avinash Nagra v Navodaya Vidyalaya Samiti in Civil Appeal No. 14526/1996 vide judgment dt. 30.09.1996 held as under:
"The first question that arises for consideration is: whether the dismissal of the appellant in terms of his letter of appointment is vitiated by any error of law and whether he is entitled to a full-fledged enquiry and opportunity to cross- examine the girl students who have gave the statements against the appellant? The second question is: whether the High Court was right in dismissing the writ petition under the impugned order dated January 9, 1996? Indisputably, the provisions of C.C.S. (C.C.O.) Rules, 1965 of the Government of India would be applicable to the employees of Navodaya Vidyalaya. The respondent is running nation-wide co-educational specialized and prestigious schools in which 1/3rd of the students are girls. With a view to ensure safety and security to the girl students, to protect their modesty and prevent their unnecessary exposer at an enquiry in relation to the conduct of a teacher resulting in sexual harassment of the girl student etc. involving misconduct or moral turpitude, Page 17 of 23 OA/020/00984/2015 resolution prescribing special summary procedure was proposed and published by notification dated December 23, 1993, after due approval of the Executives of the respondent-Samiti.
Xxx In our considered view, the Director has correctly taken the decision not to conduct any enquiry exposing the students and modesty of the girl and to terminate the services of the appellant by giving one month's salary and allowances in lieu of notice as he is a temporary employee under probation. In the circumstances, it is very hazardous to expose the young girls for tortuous process of cross-examination. Their statements were supplied to the appellant and he was given an opportunity to controvert the correctness thereof. In view of his admission that he went to the room in the night, though he shifted the timings from 10 p.m. to 8 p.m. which was found not acceptable to the respondents and that he took the torch from the room, do indicate that he went to the room. The misguiding statement sent through Bharat Singh, the hostel peon, was corroborated by the statements of the students; but for the misstatement, obviously the girl would not have gone out from the room. Under those circumstances, the conduct of the appellant is unbecoming of a teacher much less a loco parentis and, therefore, dispensing with regular enquiry under the rules and denial of cross-examination are legal and not vitiated by violation of the principles of natural justice."
(ii) Hon'ble High Court of Judicature at Bombay, Bench at Aurangabad in Gokul Rajaramji Ingle v. Union of India in WP No. 2625/2014 vide judgment dt. 07.06.2016 held as under:
"20. In the light of discussions hereinabove, we are unable to persuade ourselves to cause interference in the order of termination and, also the impugned judgment and order passed by the CAT. We are of the view that the impugned termination order and also the reasons/ findings recorded by the Tribunal are in consonance with the relevant provisions of law and also material placed on record. We are also not inclined to accept the argument of the counsel appearing for the petitioner that Article 81(B) of the Education Code for KV is ultra vires to Article 14 of the Constitution of India. In that view of the matter, the Writ Petition stands rejected."
(iii) Hon'ble High Court of Orissa in KVS &Ors v. Shri Anantha Chandra Das & Ors in WP (C) No. 20352/2016 vide judgment dt. 17.02.2017 held as under:
"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 Page 18 of 23 OA/020/00984/2015 to be conducted, the opportunity of being heard is to be provided to the teacher against whom the allegation of sexual harassment has been levelled, 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.
Xxx xxxx
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 taking into consideration the nature of allegation and the teen age of the girl student who is studying in class-
VII."
IV. Hon'ble High Court Patna in The Commissioner, Kendriya Vidyalaya v. Ajit Kumar in Civil Writ Jurisdiction Case No. 14689/2009 vide its judgment dt. 14.05.2010 held as under:
"8. We are thus convinced that the learned disciplinary authority rightly took the decision to terminate the services of respondent no.1 after following the summary procedure. We are equally convinced that they took the precaution in terms Art. 81(B) to hold a preliminary enquiry and satisfied themselves prima-facie about the immoral behaviour of respondent no.1. This was fully considered by the learned appellate authority and has been rightly upheld. We are more than convinced that the authorities took the only appropriate Page 19 of 23 OA/020/00984/2015 action available to them in law after taking due care to satisfy themselves about the culpability of respondent no.1. Any action short of termination of service of respondent no.1 would have been an act of abdication of essential duties and functions. We are mindful of the position that a school imparting education to young ones are innocent of the wily ways of the world. Therefore, the greatest care and precaution has to be taken to protect them. It is for this reason, we say advisedly, that Article 81(B) has been incorporated in the Code which is exclusively meant to take care of the immoral behaviour of the employees towards students. The power has, therefore, to be exercised whenever occasion arises without any show of compassion or sympathy, lest children get on to the wrong side of life."
The above judgments squarely apply to the case of the applicant.
The applicant in his written arguments has submitted the following verdicts and extracted the observations of the Hon'ble Court in support of his contentions, as under:
(i) 2012 (6) SCJ 727 The complaint filed has become redundant on withdrawal by the complainant. Hence, it is deemed that there is no complaint against the applicant.
(ii) 2014 (11) SCC 684 Applicant‟s length of service, service record, tribulations in family are circumstances which ought to have been evaluated.
(iii) AIR 1991 SC 471 (SC) Article 311(2) of Constitution of India have laid down the test of natural justice in the matter of meeting the charges.
(iv) AIR 2000 SC 1080 (SC) Services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice.
Page 20 of 23
OA/020/00984/2015
(v) AIR 1994 SC 1074 (SC)
A denial of the Inquiry Officer‟s report before the disciplinary authority takes its decision on the charges is a denial of reasonable opportunity.
(vi) 2002 (7) SCC 142 The expression "Sufficiency of Evidence" postulates existence of same evidence which links the charged officer with the misconduct alleged against him. Evidence which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charge officer, is no evidence in law.
(vii) AIR 1987 SC 111 (SC) Rule authorizing termination of service of employee by merely giving a notice of termination - Violative of Articles 14 & 16.
(viii) 1998 (3) SCC 321 When the Rules specifically require than an opportunity of explaining himself should be given to the employee, the denial of such opportunity is a serious violation of the principles of natural justice and vitiates the justice.
(ix) AIR 1964 SC 600 (SC) Termination of the services of a permanent servant otherwise than on the ground of superannuation or compulsory retirement must, per se amount to his removal. Such a termination brought clearly contravenes Article 311(2) of the Constitution.
The applicant was given an opportunity to present his version before the summary committee. Show cause notice was issued to the applicant but he was careless to utilize the opportunity the way it ought to be. With the Page 21 of 23 OA/020/00984/2015 special provision of Article 81 (B) for KVs and the same having been held to be legally valid by the Hon'ble Apex Court in judgments cited supra the termination of services after issue of notice cannot be said to be invalid. The summary report has come up with invincible evidence about the immoral behavior of the applicant not merely against one child but against many. Child is the other form of God. They are innocent and are the epitomes of truth since in their tender age their minds are not polluted as well as not tricked by the maya of this tricky world. They have spoken the truth about the applicant in the summary inquiry. Article 81 (B) upheld by the Hon'ble Supreme Court does not prescribe supply of any I.O report. Services can be terminated under the said article. It is a special provision and prevails over the general rules as per settled law. Applicant's long years of service will be of no use when he has not developed the wisdom of not committing sexual offenses against innocent children. The complaint was not withdrawn as explained in the paras supra.
In view of the findings of the Hon'ble Apex court cited as well as our observations in the preceding paras, the judgments relied upon by the applicant would be of no assistance to him.
IX. Before we part, we hope and trust that the respondents have taken due notice of the adverse observations of the Committee in regard to the conduct of the Principal, the Vice-Principal as well the Teachers in trying to desist the parent from making the complaint, pressurizing her to withdraw the complaint and to delay the conduct of the preliminary inquiry so as to save the applicant who was found to exhibit sexually aberrant behavior with Page 22 of 23 OA/020/00984/2015 the girl students. The report is an example as to how difficult it is for the fairer sex to get justice from a society which still has not unshackled itself from the reality that they too are human beings and have to be allowed to live their own lives freely and happily, but not subjugate them to satisfy the sexual lust of the masculine marauders by force in a cruel manner. X. Hence, in view of the aforesaid circumstances, having found no merit in the OA, we dismiss it, with no order as to costs.
(B.V.SUDHAKAR) (ASHISH KALIA)
ADMINISTRATIVEMEMBER JUDICIAL MEMBER
/evr/
Page 23 of 23