Central Administrative Tribunal - Allahabad
Dr V S Rathore vs Union Of India on 2 June, 2023
Reserved
(On 29th March, 2023)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD
*********
Original Application No. 171 of 2011
Allahabad this the 02nd day of June, 2023
Hon'ble Mr. Justice B.K. Shrivastava, Member-J
Hon'ble Mr. Mohan Pyare, Member-A
Dr. Virendra Singh Rathore S/o Sri S.L. Rathore, R/o 88, R.K. Puram,
Agra Road, Aligarh.
Applicant
By Advocate: Shri Anwar Hussain
Vs.
1. Chairman, Kendriya Vidyalaya Sangathan, New Delhi.
2. Vice Chairman, Kendriya Vidyalaya Sangathan, New Delhi.
3. Commissioner, Kendriya Vidyalaya Sangathan, New Delhi.
Respondents
By Advocate: Mr. Devendra Pratap Singh
ORDER
Delivered by Hon. Mr. Justice B.K. Shrivastava, Member (J) This Original Application has been filed for the following relief (in para-8): -
" (A) To issue a suitable order quashing the impugned order dated 23/24.08.2006 passed by the then Commissioner, KVS, New Delhi/ disciplinary authority, whereby, the applicant was removed from services, order dated 01.02.2007 passed by the respondent no. 3/appellate authority, whereby, the appeal filed by the applicant against the aforesaid order of removal has been rejected and the order dated 29.11.2010 passed by the respondent no. 2/Revisional authority, whereby, the revision filed by the applicant against the aforesaid orders of the Disciplinary Authority & Appellate Authority has been dismissed.
(Annexure A-1, A-2 and A-3 respectively to the Compilation No. 1). (B) To issue a suitable order directing the respondents to reinstate the applicant from the date of removal from service giving all consequential benefits including retiral benefits treating to be in continuous service. 2 (C) any other order/direction/declaration as the Hon'ble Tribunal may deem fit and proper in the circumstances of the case.
(D) Award cost of this application to the applicant."
2. It appears from the O.A. that by order dated 23/24-08-2006 (annexure A-1), the applicant has been removed from service by respondent No. 4. The applicant preferred an appeal on 02.09.2006 and 01.10.2006 (annexure A-9 and A-10) but the appeal was also dismissed by order dated 01.02.2007 (annexure A-2) passed by respondent No. 2. Thereafter, the applicant preferred a revision (annexure A-11) on 05.02.2007. When the revision was pending before the respondent No. 3, the applicant preferred the O.A. No. 1096/2010 for early disposal of the revision by a reasoned and speaking order and the Central Administrative Tribunal, Allahabad passed the order dated 31.08.20100 directing the revisional authority to decide the revision dated 05.02.2007 within four months from the date when the copy of order is produced before them. Thereafter, the revisional authority decided and dismissed the revision on 29.11.2010 vide annexure A-3.
3. It is submitted by the applicant that he was initially appointed on 19.11.1982 as Post Graduate Teacher (Chemistry) in the Central School Dinjan (Assam). Thereafter, he worked about 24 years upon the post of teacher and principal. On 10.07.2005, the applicant joined as Principal, Kendriya Vidyalaya, Balrampur. The applicant was having a good reputation and he was appreciated by the superior authorities from time to time.
4. It is submitted that when the applicant was posted as Principal, KV, Balrampur at that time one lady teacher Mrs. Abha Singh, at the behest of the then Commissioner, KVS namely Raglal Jamuda, filed a complaint about "sexual harassment" against the applicant. As per applicant, false and forged complaint was made against him by the lady teacher Mrs. Abha Singh on 11.02.2006 related to exhibiting unwelcome sexually 3 determined behaviour. Mrs. Abha Singh was employed as contractual teacher in KV, Balrampur and had been working there since 2003 whereas the applicant joined as Principal on 10.07.2005 and when on 20.01.2006 she was discontinued from service by the applicant, then an afterthought, she lodged the complaint against the applicant on 11.02.2006.
5. It is further submitted that the applicant was placed under suspension and the appointing authority in exercise of power conferred by sub rule (1) of Rule 10 of CCS (CCA) Rules, 1065 referred the matter to the "Complaint Redressal Committee" (for short CRC) for conducting an inquiry vide order dated 28.02.2006 and the matter was referred vide letter dated 18.04.2006. The copy of suspension order is annexed as annexure A-4.
6. It is further submitted that CRC submitted its report in May, 2006. Thereafter, the Commissioner being disciplinary authority issued a memorandum dated 14.06.2006 (Annexure A-5) to the applicant asking him to explain as to why the suitable major penalty would not be imposed upon him for such a perverse act dispensing with the regular inquiry, as per the direction issued by the Supreme Court. It is further submitted that the applicant submit his explanation on 01.07.2006 (Annexure A-6) followed by a supplementary explanation dated 04.07.2006 (Annexure A-
7). The applicant stated in his explanation that the complaint filed by Mrs. Abha Singh had been only the result of her inimical and vindictive attitude against him as she was not allowed to work after 20.01.2006 due to her disqualification for the post and no evidence or witnesses could be presented by her in support of any allegation levelled by her before the inquiry committee. It is also submitted by the applicant that the appellate authority vide order dated 01.02.2007 (annexure A-2) rejected the appeal without considering the issue raised through supplementary appeal dated 01.10.2006.
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7. It is also submitted by the applicant that he preferred a revision under Rule 9 of CCS (CCA) Rules, 1965 on 05.02.2007 (annexure A-11) but the concerned authority the respondent No. 2 dismissed the aforesaid revision holding that the applicant has not come with the new grounds which need consideration and the grounds raised in his petition have already been considered by the appellate authority.
8. In the background of the aforesaid, the applicant preferred this O.A. and challenged the aforesaid orders (annexure A-1, A-2 and A-3) upon the following main grounds: -
(a) Before referring the matter to the CRC, the disciplinary authority required to prepare the charge sheet and served upon the applicant along with the list of documents and witnesses but no such procedure was followed by the authority.
(b) As per Rule 14 (1) of the Rules, 1965, no order imposing any major penalty shall be imposed except after an inquiry held as far as may be in the manner prescribed in Rule 14 and 15 of the Rules, 1965.
(c) The redressal committee has conducted the inquiry in the self styled manner without providing opportunity to the applicant to cross examine the complainant and the witnesses produced against him as well as to lead the evidence in his defence.
(d) The committee failed to consider the fact that the complainant Mrs. Abha Singh never made any complaint against the applicant to anyone before her termination from service by the applicant and made the complaint only when she left the school.
(e) The committee failed to consider that the complainant did not submit any documentary evidence in support of her allegation levelled against the applicant.5
(f) The copy of complaint which is the basis of disciplinary proceeding not supplied to the applicant and no opportunity was provided to cross examine the complainant and witnesses produced against him.
(g) The order of removal has been passed only on the basis of report submitted by the redressal committee dispensing with the regular inquiry, would amount to violation of safeguards provided under Article 311 of the Constitution of India.
(h) The order of removal from service imposed upon the applicant is too harsh and disproportionate to the charge levelled against the applicant, even assumed to be proved.
(i) The inquiry report is based upon no evidence, therefore, it would cause huge mental, social and physical loss to the applicant which cannot be compensated in any mode.
9. The respondents filed the counter affidavit on 05.09.2011 and strongly opposed the case of applicant. It is submitted by the respondents that upon the basis of complaint dated 11.02.2006 lodged by Mrs. Abha Singh (a contractual teacher) against the applicant for showing unwelcome sexually determined behaviour towards her, the Commissioner, KVS, the competent Disciplinary Authority by taking a very serious note of the incident placed applicant under suspension vide order dated 28.2.2006. Since the complaint of sexual harassment of a lady employee at her work place was against a group-A officer of KVS, the matter was referred to Complaint Redressal Committee against the sexual harassment of woman employee of KVS constituted in the KVS (HQ) for conducting an inquiry in to the allegation leveled by Abha Singh against the applicant. The said committee headed by Smt. Piya Thakur, Assistant Commissioner KVS HQ as convener and Sri D. Dutta, Principal K.V. R.K. Puram, New Delhi as Member and Smt. Vandana Prasad NGO Member of the committee, conducted and completed the enquiry in to the matter on 6 31.05.2006 and found that applicant was guilty of unwelcome sexually determined behaviour towards Smt. Abha Singh as he used to demand/ request for sexual favour and to send her sexually coloured SMS. It is submitted that the misconduct of sexual harassment committed by Sri Rathore was established in the inquiry as stated above. The disciplinary authority decided to take action based on the report of complaint committee in terms of directives of Hon'ble Supreme Court. Accordingly, applicant was issued show cause notice dated 14.06.2006 along with the finding of the inquiry report and he was required to submit his reply and to explain as to why suitable action would not be taken against him. The applicant submitted his reply vide his representation dated 01.07.2006. On perusal of the fact and circumstances of the case, his submission on the enquiry report, the Commissioner, KVS being the disciplinary authority imposed punishment of removal from service vide order dated 23/24.08.2006, which could not be said illegal in any manner.
It is again submitted by the respondents that keeping in view the facts and circumstances of the case, the present O.A. is misconceived, devoid of merit and as such liable to be dismissed accordingly. Applicant has not made out any case for interference of this Hon'ble Tribunal. Applicant is not entitled to get any relief as sought by him in para-8 and 9 of the O.A. and as such it would be in the interest of justice that the Hon'ble Court may be pleased to dismiss the O.A.
10. The inquiry report has been submitted by the applicant. It appears from the aforesaid inquiry report that the detailed comments were received from the applicant V.S. Rathore. The statement of witnesses i.e. Smt. Abha Singh-Ex Contractual Teacher, Smt. Manpreet Kaur-Ex- Contractual Teacher, Smt. Pratima Singh-Ex-Contractual Teacher, Shr. V.S. Rathore, Principal (Under Suspension), K.V. Balrampur, Dr. D.N. Pandey, TGT (Eng.), Shri Sanjeev Kumar, WET, Shri N.R. Ram, TGT (Hindi), Shri Abhay Srivastava, Librarian and Smt. C.L. Jaiswal, PRT were 7 recorded by the committee. The committee examined the evidence in detail and given the following finding with the conclusion: -
"Findings: -
1. The committee personally saw the mobile of Smt. Abha Singh and it was found that three SMS on the date mentioned had been received from Sh. V.S. Rathore's Mobile No. 9839880288. Sh. V.S. Rathore has denied the charge saying that he had lost his mobile on 18.12.2005 and he had lodged an FIR in the Police Thana, Kotwali Nagar, Balrampur on 29.12.06. He further sent a reminder on 04.05.2006 after receiving a copy of the complaint. (Copies of his letters to the Police station is placed at Annexure II). This was supported by some of the teachers namely Sh. Sanjeev Kumar, WET, Sh. N.R. Ram, TGT (Hindi) and Sh. Abhay Srivastava, Librarian who testified that during the Mahotasav, they had heard that Sh. Rathore had lost his mobile.
(Annexure III, IV, V) Sh. V.S. Rathore wrote an application on plain paper on 29.12.06. On verification from the Police Thana, Kotwali Nagar, Balrampur, the committee was informed that no such FIR has been registered by the police. Letter from Convenor of committee to CO, city and Reply to the same in annexure at VI and 6
2. The other incidents which have been cited by Smt. Abha Singh are detailed below: -
a. While no witnesses are available regarding the charge, the staff have mentioned that Sh. V.S. Rathore used to frequently call Smt. Abha Singh to his room.
b. Smt. Abha Singh's salary was enhanced from Rs.3000/- to Rs.4000/- from Sept. to Dec. within a space of 3 months. Further, she was elevated to the post of PRT in Dec-2005 without any approval from VMC, Chairman. Sh. V.S. Rathore's contention that her certificates were fake and audit objection to her qualification do not hold ground. The audit objection was against Smt. Abha Singh's appointment as PRT on 01.12.2005. It is further seen from the attendance register that Smt. Abha Singh had been working as Craft Teacher and only in Jan-2006 was designated as PRT with correction done by Sh. V.S. Rathore himself on the register. Attendance of Dec-2005 is missing. It seems that the enhancement in salary and designation to PRT was done purely on the whims of Sh. V.S. Rathore Annexure VII. c. It is also found that Smt. Abha Singh has participated in Balrampur Mahotsav representing K.V. Balrampur. This is borne out by the certificate issued to her and other participants of K.V. Balrampur by the District Magistrate Office and photographs. No official orderwas given but verbally not just Smt. Abha Singh, but other lady teacher were also called. Official order was only for male teacher for evening duties Annexure VIII.8
d. There is no official order regarding the Taekwondo Camp. However, it was found that attendance register pertaining to specifically Smt. Abha Singh for Dec 2005 was missing. Attendance of other contractual teachers for the same period was available.
e. And (f) No witness or documents are available regarding these charges. However, very soon after the said incident and the SMS, Smt. Abha Singh was removed from service without any official notice or letter. She was also not provided any experience certificate. It has also been stated by some teachers (statements enclosed at Annexure IX) that after this incident Smt. Rathore wife of Sh. V.S. Rathore had come to Vidyalaya. She would sit with the lady staff members and generally talk negatively about Smt. Abha Singh and link her with various male teachers. Smt. Abha Singh has also stated that she was threatened telephonically to with draw her complaint. Smt. Manpreet Kaur, Ex-Contractual Teacher has also stated that on being called for enquiry, her husband was approached by one Mr. Gulati advising him to tell Smt. Manpreet Kaur not to state anything negative against Sh.
Rathore.
Conclusion: -
Keeping in view the above and based on available evidence and statements, it is concluded that the charges made by Smt. Abha Singh are sustained."
11. When the committee submitted the report in May, 2006, thereafter, finding of the committee communicated to the applicant with the major penalty notice vide memo dated 14.06.2006. Therefore, it can be said that the opportunity of showing the cause was given to the applicant and the copy of committee report was also provided along with annexure A-5 to the applicant. It is also appear that the applicant himself submitted his explanation vide his letter dated 01.07.2006 (annexure A-6) and letter dated 04.07.2006 (annexure A-7). After taking into consideration the aforesaid representation submitted by the applicant, the concerned authority/Commissioner passed the impugned order. It is also appear from the aforesaid order that all the points raised by the applicant have been considered by the competent authority before passing the aforesaid removal order. The removal order is at page Nos. 34 to 39. The entire facts are mentioned in the aforesaid order. The points raised by the applicant in his representation dated 01.07.2006 and 04.07.2006 are also mentioned in para-4(ii) to para-4(xv). In para-5, the authority 9 considered all the points and given the detail about the consideration and thereafter the competent authority firmed the opinion that the applicant misused his position to sexually harass Mrs. Abha Singh who was a widow and a meek subordinate staff as she was a contractual teacher and could be thrown out the job by the Principal without assigning any reason. It is also appear from para-6 that the applicant argued before the competent authority and thereafter the competent authority passed the order of removal from service.
12. The applicant preferred the appeal under Rule 23 of CCS (CCA) Rules, 1965 on 02.09.2006 (annexure A-9) and also submitted the supplementary submission dated 01.10.2006 (annexure A-10). The appeal was considered by respondent No. 3 who dismissed the appeal by order dated 01.02.2007 (annexure A-2). The aforesaid order also passed in detail. In para-5 of the aforesaid order, the Appellate Authority considered all the facts and circumstances of the case and mentioned in para-5 (i) to para-5 (vi) as under: -
5. I have perused the report of Complaint Redressal Committee, submission Shri Rathore against the findings of the CRC, the speaking order passed by the Commissioner and the present appeal dated 02.09.2006 and observe the following:-
(i) With regard to the point at para 4(i), it is observed that Shri Rathore was not proceeded against under Rule 14 or Rule 16 of the CCS (CC&A) Rules, 1965 where serving of a charge sheet is mandatory. The complaint against Shri Rathore was very specific and serious in nature where he was accused by a lady contractual teacher for sexually determined behaviour, demand/request for sexual favour and sending sexually coloured SMS to her. Therefore, this was a fit case to be referred to CRC against a sexual harassment of female employees working in KVS. Accordingly, the inquiry was conducted and Commissioner forwarded the finding of inquiry to him, vide KVS memorandum dated 14.06.2006 for his defence. As such the action of Commissioner was consistent with rules.
(ii) With regard to the point para 4(ii), it is observed that the Complaint Redressal Committee inquired into the matter on 16th May, 17th May & 18th May at KV Balarampur. The committee obtained the version of all concerned and arrived at a conclusion after considering the totality of the case.
(iii) The convenor of the Committee took comments from Sh. Rathore regarding allegations made by the lady teacher. In this connection Sri Rathore submitted his point of view vide letter dated 8.5.2006 10 to the convenor of the Committee. The convenor also personally met the persons who provided valuable inputs for the case. In that process Sri Rathore were also provided the opportunity to explain his defence in the matter. All the points raised by Sh. Rathore were considered by the Committee which arrived at a conclusion that Sh. Rathore was guilty of the said charge. The Commissioner who is the Disciplinary Authority for Principals did not proceed against Sh. Rathore under Rule 14 of the CCS (CC&A) Rules, 1965. It is worth mentioning that the Hon'ble Supreme Court in the case of Medha Kotwal Lele & others Vs. U.O.I. & others had ordered that the inquiry done by such Committee will be deemed to be an Inquiry Authority for the purpose of the Central Civil Services (Conduct) Rules, 1964 and the report of the Committee shall be deemed to an Inquiry Report under those rules. The Committee is free to devise its methodology for investigation.
(iv) With regard to the points (iii), (iv) & (v) at para 4, it is observed that Shri Rathore alleged against the Commissioner and the Redressal Committee of working with mala fides to fix him. I find that the Complaint Redressal Committee is an independent body having an NGO member from outside. The order of the Commissioner issued on 24.8.2006 is an exhaustive speaking order. Before passing this final order Commissioner had given you opportunity to Mr. Rathore to submit his statement of defence on the Inquiry Report of the CRC vide memorandum dated 14.6.2006.
The issue of ignoring weighty evidence put forth by him does not appear to be factually correct. The order has analysed all the evidence and defence put forth by Shri Rathore.
(v) With regard to points VI & VII mentioned in para 4, the issue has been already dealt with in preceding para. However, if Mr. Rathore was so apprehensive about the Disciplinary Authority i.e. Commissioner and CRC, he could have filed a bias petition at that point of time. Shri Rathore did not do that and did participate in the proceeding of CRC and defended his own case. Therefore, his allegation against the Commissioner and CRC appears to be an after thought.
(vi) With regard to the point (viii) at para 4, though removal from service does constitute a mental and social trauma, the proven misconduct is of an extremely serious nature which needs to be put down firmly in the interest of a healthy environment in educational institutions.
In view of the above, I do not see any reason to differ from the findings of the Complaint Redressal Committee, nor from the decision of the Disciplinary Authority on the penalty of removal imposed upon Sh. Rathore."
13. The applicant also filed the Revision under Rule 9 of CCS (CCA) Rules, 1965 on 05.02.2007 (annexure A-11), which was also dismissed by the respondent No. 2 vide order dated 29.11.2010 (annexure A-3). The revisional order also having all details of the case in 8 pages and the conclusion recorded in para-20, as under: -
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"20. After careful consideration of the points raised in the revision petition and all other records of the case, the Hon'ble Chairman, KVS, being the competent Revisioning Authority inter-alia ordered as under: -
Keeping in view the entirety of the case, I find that the petitioner has not come with any new grounds which needs consideration in his revision petition. The grounds raised in his petition have already been considered by the Appellate Authority while disposing of the appeal petition. Therefore, I see no reason to modify the orders passed by the Disciplinary Authority and the Appellate Authority. Accordingly, this revision petition is dismissed."
Therefore, it appears that the competent authority, appellate authority and the revisional authority considered the entire points raised by the applicant and after taking into consideration the report submitted by the committee, they come to the conclusion that the applicant is guilty and the complaint is genuine.
14. The messages sent by the applicant are mentioned in the inquiry report. Three messages were sent by the applicant on 28.12.2005, 06.01.2006 and 07.01.2006. By mistake in some places, one date '28.12.2006' has been mentioned instead of '28.12.2005' but it is only a clerical mistake. It is an admitted fact that the Mobile Number 9839880288 registered in the name of applicant. The plea taken by the applicant that his mobile was lost on 18.12.2005 and the report (annexure A-8) was lodged by him on 29.12.2005. The inquiry committee and the other authorities did not believe the aforesaid contention. The committee also mentioned that the committee inquired from the Police Station and it is admitted fact that no any F.I.R. was registered in relation to the theft of mobile of the applicant. If the mobile was lost on 18.12.2005 then why the report was not lodged immediately. As per the applicant himself, he reported the matter to the Police on 29.12.2005 but any F.I.R. has not been registered. At page 73, the copy of application has been submitted but it is a suspicious document. It is not mentioned that who received the aforesaid application and what was the post of aforesaid person. Only seal cannot prove that the F.I.R. was registered. In the application, the applicant mentioned that his mobile 12 has been fallen in the Balrampur Mahotsva. He also used the word that the mobile has been theft but he deleted the aforesaid word. It will be proper to mention here that after theft or lost of the mobile, the sim card bearing same number can be obtained from the company.
15. Some facts are also relevant for not believing the story cooked up by the applicant regarding lost of his mobile. The dates of messages are 28.12.2005, 06.01.2006 and 07.01.2006 and after about 13 days from the last message i.e. 07.01.2006, on 20.01.2006 the service of lady teacher were terminated by the applicant himself. If her work was not satisfactory then the question also raised about increasing of the salary of concerned lady teacher. It is the matter of record that on 28.09.2005, the applicant raised the salary of the lady teacher by Rs. 500/-. Thereafter, in December, 2005, he again raised the salary by Rs.500/-. Within three months, two times salary was increased. If the salary was increased in the month of December, 2005 upon the basis of satisfactory work of lady teacher then, there was no any reason to terminate her services on 20.01.2006. These facts create doubt upon the conduct of applicant.
16. The points raised by the applicant before this Court and mentioned in para-8 of this Judgment. As far as the disciplinary inquiry is concerned then as per the case of Medha Kotwal (supra), the report of the committee is sufficient and the aforesaid report will be treated as inquiry report.
17. It has been said in the aforesaid case that the complaint committee, as envisaged by the Supreme Court in the judgment of Vishaka's case, will be deemed to be an inquiring authority for the purpose of Central Civil Services (Conduct) Rules, 1964 and the report of complaint committee shall be deemed to be an inquiry report under CCS Rules and the Disciplinary Authority will act on the report in accordance 13 with the rules. Therefore, this argument cannot be accepted that the provision of regular inquiry has been bypassed in this case.
18. It is also appear from the record that the inquiry committee given the opportunity to the applicant and also recorded the statement of the applicant. The competent authority also given the opportunity of hearing and submission of the statement. The applicant submitted the written submission and thereafter the competent authority passed the order impugned herein. Hence, prima-facie it cannot be said that no any fundamental rule is violated. The committee is free to adopt the procedure for finding the truth in the case. No any strict procedure is prescribed for the aforesaid committee. In this case, the committee examined nine witnesses including the applicant himself and also considered all the points minutely.
19. Counsel for the respondents also drawn attention towards the provision of Rule 81 (b) of Education Code. The Rule says: -
81 (B) Termination of Services of an employee found guilty of immoral behaviour 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 behaviour towards any student, he can terminate the services of that employee by giving him one month's or three 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 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 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 in the complaint of immoral behaviour by a teacher towards the students of 14 Kendriya Vidyalaya may be got investigated by the Complaints Redressal Committee constituted in the Regional office."
20. It is submitted by the counsel for the applicant that the aforesaid rule is related to the "student" and not to the "teacher". But the aforesaid argument cannot be considered. First, in the light of Vishaka's case and the second, there is no any difference between the student and lady teacher because the Principal of the School or the College is the custodian and the guardian of both. The main intention is the "protection of rights"
at the work place from the immoral sexual behaviour. Therefore, it cannot be differentiated that the provisions related to student, cannot be apply in the case of Principal and lady teacher. The respectable behaviour is required by the Principal with the girls' student as well as lady teacher.
21. In the case of Vishaka vs. State of Rajasthan, 1997 (6) SCC 241 the three Judges bench of Supreme Court issued various directions including formation of "Complaint Committee" in respect of sexual harassment of women at work place. In that case a definition of sexual harassment was suggested: -
"For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication as:
(a) physical contact and advances;
(b) a demand or request for sexual favours;
(c) sexually-coloured remarks;
(d) showing pornography;
(e) any other unwelcome physical, verbal or non-verbal conduct of
sexual nature.
Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victim's employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage here in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse 15 consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto."
22. In para-24 of Apparel Export Promotion Council vs. A.K. Chopra (Civil Appeal No. 226-227 of 1999 Decided on 20.01.1999, the Supreme Court considered the aforesaid definition and said: -
"24. An analysis of the above definition, shows that sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such a conduct by the female employee was capable of being used for effecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile working environment for her."
23. The three Judges Bench of the Supreme Court said in Medha Kotwal Lele v. U.O.I., 2013 (1) SCC 311, that the report of committee shall be deemed to be an inquiry report under CCS Rules: -
"Complaints Committee as envisaged by the Supreme Court in its judgment in Vishaka's Case, 1997 (6) SCC 241 at 253, will be deemed to be an inquiry authority for the purposes of Central Civil Services (Conduct) Rules, 1964 (hereinafter called CCS Rules) and the report of the complaints Committee shall be deemed to be an inquiry report under the CCS Rules. Thereafter the disciplinary authority will act on the report in accordance with the rules."
24. In the case of Apparel Export Promotion (supra), a superior officer tried to sit close and touch the female employee and did not stop despite her reprimand. After departmental enquiry, the officer was removed from service for his unbecoming behaviour. Removal order was challenged and the High Court upset the finding on the ground that officer only tried to molest and did not actually molest the female employee. The Supreme Court held that the order of High Court is not valid because High Court should not have substituted its own discretion for that of Disciplinary Authority in the matter of facts and quantum of punishment. The Court also said that in case of finding of facts in departmental enquiry, the 16 Disciplinary Authority is the sole Judge of facts and Appellate Authority can upset the finding, but not the High Court unless the findings of Disciplinary Authority are perverse and against the Law. The High Court does not sit as Appellate Authority over the finding of Disciplinary Authority and impose some other punishment. The adequacy or in adequacy of evidence is not permitted to be canvassed before the High Court. In para-15 of the aforesaid case, the Supreme Court observed: -
15. The high court appears to have over-looked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact finding authorities. once findings of fact, based on appreciation of evidence are recorded, the high court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. the adequacy or inadequacy of the evidence is not permitted to be canvassed before the high court. since, the high court does not sit as an appellate authority, over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the high court cannot normally speaking substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority, is either impermissible or such that it shocks the conscience of the high court, it should not normally substitute its own opinion and impose some other punishment or penalty. both the learned single judge and the division bench of the high court, it appears, ignored the well-
settled principle that even though judicial review of administrative action must remain flexible and its dimension not closed, yet the court in exercise of the power of judicial review is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial Review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process.
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25. In para-17 to 20 of the aforesaid Apparel Export case (supra), the Court also mentioned the other relevant case upon the sexual harassment cases: -
17. It is useful to note the following observations of this Court in Union of India v. Sardar Bahadur, (1972) 4 SCC 618:
"Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, it is not the function of the high court exercising its jurisdiction under article 226 to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court.
18. After a detailed review of the law on the subject, this court while dealing with the jurisdiction of the high court or tribunal to interfere with the disciplinary matters and punishment in Union of India v. Parma Nanda, (1989) 2 SCC 177, opined:
"We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the enquiry officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of Legislature or Rules made under the proviso to Article 309 of the constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter of exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority.
19. In B.C. Chaturvedi v. Union of India, (1995 ) 6 SCC 749, this court opined :
"The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a Disciplinary Enquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal.
Further it was held:18
A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.
20. Again in Government of Tamil Nadu and another v. A. Rajapandian, 1995(1) SCC 216, this court opined:
"It has been authoritatively settled by string of authorities of this court that the Administrative Tribunal cannot sit as a court of appeal over a decision based on the findings of the inquiring authority in disciplinary proceedings. Where there is some relevant material which the disciplinary authority has accepted and which material reasonably supports the conclusion reached by the disciplinary authority, it is not the function of the Administrative Tribunal to review the same and reach different finding than that of the disciplinary authority. The Administrative Tribunal, in this case, has found no fault with the proceedings held by the inquiring authority. It has quashed the dismissal order by re-appreciating the evidence and reaching a finding different than that of the inquiring authority."
26. Thereafter, in para-21, the Court said: -
"21. In the established facts and circumstances of this case, we have no hesitation to hold, at the outset, that both the learned Single Judge and the Division Bench of the High Court fell into patent error in interfering with findings of fact recorded by the departmental authorities and interfering with the quantum of punishment, as if the High Court was sitting in appellate jurisdiction. From the judgments of the learned Single Judge as well as the Division Bench, it is quite obvious that the findings with regard to an "unbecoming act" committed by the respondent, as found by the Departmental Authorities, were not found fault with even on re-appreciation of evidence. The High Court did not find 19 that the occurrence as alleged by the complainant had not taken place. Neither the learned single judge nor the Division Bench found that findings recorded by the Enquiry Officer or the Departmental Appellate Authority were either arbitrary or even perverse. As a matter of fact, the High Court found no fault whatsoever with the conduct of enquiry. The direction of the learned Single Judge to the effect that the respondent was not entitled to back wages and was to be posted outside the city for at least two years, which was upheld by the Division Bench, itself demonstrates that the High Court believed the complainants case fully for otherwise neither the withholding of back wages nor a direction to post the respondent outside the city for at least two years was necessary. The High Court in our opinion fell in error in interfering with the punishment, which could be lawfully imposed by the departmental authorities on the respondent for his proven misconduct. To hold that since the respondent had not "actually molested" Miss X and that he had only tried to molest her and had not managed to make physical contact with her, the punishment of removal from service was not justified was erroneous. The High Court should not have substituted its own discretion for that of the authority. What punishment was required to be imposed, in the facts and circumstances of the case, was a matter which fell exclusively within the jurisdiction of the competent authority and did not warrant any interference by the High Court. The entire approach of the High Court has been faulty. The impugned order of the High Court cannot be sustained on this ground alone. But there is another aspect of the case which is fundamental and goes to the root of the case and concerns the approach of the Court while dealing with cases of sexual harassment at the place of work of female employees."
Again in para-27, the Court said: -
" . . . .In a case involving charge of sexual harassment or attempt to sexually molest, the courts are required to examine the broader probabilities of a case and not get swayed by insignificant discrepancies or narrow technicalities or dictionary meaning of the expression "molestation". They must examine the entire material to determine the genuineness of the complaint. The statement of the victim must be appreciated in the background of the entire case. Where the evidence of the victim inspires confidence, as is the position in the instant case, the courts are obliged to rely on it. Such cases are required to be dealt with great sensitivity. Sympathy in such cases in favour of the superior officer is wholly misplaced and mercy has no relevance. . . . ."20
27. Division Bench of Allahabad High Court in Dr. Virendra Singh vs. B.H.U., Varanasi etc. (Writ A 35877 of 2014 decided on 19.02.20215, the reliance has been placed upon Apparel Export case (supra) and held: -
"What has been emphasised by the Supreme Court in the aforesaid decisions is that rules of 'natural justice' cannot remain the same under all conditions and that girls, in cases of sexual harassment, may not give evidence if a regular enquiry is held. Under since circumstance, the Committee of teachers that is constituted can record statements and no opportunity of cross-examination is required to be given nor a copy of the enquiry report is required to be supplied. The dispensation of a regular enquiry, therefore, under such circumstance does not result in violation of the principles of natural justice.
It is, therefore, not possible to accept the contention of the petitioner that a detailed disciplinary enquiry was required to be conducted. The petitioner was aware of the allegation that had been made against him as is clear from the reply that he had submitted and had been given an ample opportunity to state his defence when he appeared before the Committee. The petitioner gave his statement before the Committee which constituted of three senior teachers of the complaint had narrated the incident soon after it happened."
28. The respondents also cited the following cases, decided after placing reliance upon the Avinash Nagra case (supra) or Article 81 (b) of Education Code for Kendriya Vidyalaya Sangathan, 1965 and the punishment was held justified: -
(1) Director Navoday Vidyalay Samiti & Ors. Vs. Babban Prasad Yadav & ors. 2004 (13) SCC 568 (dt.-2.5.2003);
(2) Dr. Indra Dutta vs CAT Allahabad & Ors. 2017 (1) ADJ 130 (Allahabad High Court D.B.) dt. 07.12.2016;
(3) Thakur Prasad Maurya vs. U.O.I., 2017 (3) ADJ 665 (D.B. All. H.C. Bench at Lucknow) dt. 03.03.2017;
(4) Ashok Kumar Yadav vs. The Principal Kendriya Vidyalaya NTPC Shaktinagar Civil Misc. Writ No. 36082 of 2001 (D.B. Allahabad H.C.);21
(5) Yogendra Nath vs. Commissioner, Kendriya Vidyalaya Sangathan, 2014 (2) ILR (Delhi) 1428 dt. 04.02.2014 (D.B. Delhi High Court);
(6) Dabashish Debnath vs. U.O.I. WPCT No. 351 of 2007 D.B. Calcutta dt. 23.06.2011.
29. In the case of Commissioner, Kendriya Vidyalaya Sangathan & Ors. V. Rathin Pal SLP (C) 4627/2008, decided by Hon'ble Supreme Court on 16.08.2010, five girls' student of a class made a complaint of immoral behaviour against the respondent who was the Music teacher. The Principal of Vidyalaya constituted a team of nine teachers including a lady teacher to conduct an in house inquiry into the allegations contained in the complaint. The team of teachers recorded the statement of complainant and found that some substance in the complaint. The competent authority directed Education Officer and Principal Smt. Sanyal to conduct a summary inquiry into the complaint of the students and their parents. Thereafter, the competent authority passed the termination order on 20.09.2001 under Article 81 (2) of Education Code upon the basis of the inquiry conducted by both committees. The aforesaid order was challenged before the CAT Bench, Calcutta by filing the O.A. No. 81 and 264/2002 but the Calcutta Bench dismissed the aforesaid OAs. However, the Division Bench of the High Court allowed the Writ Petition filed by the applicant teacher and set aside the termination of the service order. The Bench also directed to reinstate the applicant with the 40% wages. But when the matter was travelled up to the Supreme Court, then the Supreme Court set aside the order of the High Court and found that the termination order is valid, no regular inquiry was required. The court observed in last paras as under: -
"We have heard learned counsel for the parties and perused the record of the appeal. We have also gone through the file containing the papers relating to inquiries, which was produced by learned counsel for the applicants. The file was also made available to the learned counsel for respondent for his perusal. It is not in dispute that in both the inquiries, one of which was conducted by a team of 9 teachers and the other by a a 22 two-Member Committee, the girls, who made the complaints stood bby the allegations made in the complaints and vividly described the manner in which the respondent had sexually assaulted them. In the second inquiry, the parents of the girls also repeated the allegation. Two of them also stated that they were threatened by respondent with dire consequences. Respondent did make an attempt to project himself as victim of some conspiracy but he could not produce any tangible evidence either before the Inquiry Committee or the Appellate Authority. Even before the Tribunal, he could not substantiate the charge that he was being framed up for extraneous reasons. Applicant No. 1 scrutinized the statements of the girl students and their parents and felt convinced that it would not be reasonable and practicable to conduct an inquiry under the 1965 Rules because the same would cause serious embarrassment to the girls, who were aged 11 to 12 years and their parents and would also vitiate the atmosphere of the school. Therefore, it is not possible to find any fault with the decision taken by appellant No. 1 to dispense with the regular inquiry and invoke Article 81 (b) of the Education Code. In its order dated 3.4.2003, the Tribunal recorded cogent reasons for negating the respondent's challenge to the termination of his service, but the High Court upset that order as also the one passed by appellant No. 1 without even adverting to the reasons recorded by him for dispensing with the inquiry.
The High Court's observation that appellant No. 1 had not recorded his satisfaction on the desirability of dispensing with the regular inquiry is clearly erroneous. A reading of the order extracted in the earlier part of this judgment shows that appellant No. 1 had independently analyzed the statements of the girl students and their parents and came to the conclusion that it was not expedient to conduct regular inquiry because that would embarrass the girl students and their parents and would also vitiate atmosphere of the school. The reasons assigned by appellant No. 1 cannot, by any stretch of imagination, be treated as extraneous or irrelevant to the exercise of power under Article 81 (b) of the Education Code.
As a sequel to the above discussion, we hold that the High Court committed serious error by quashing/setting aside the order of punishment passed by appellant No. 1 and the one passed by the Tribunal dismissing the application filed by respondent. 1."
30. In the case of Avinash Nagra v. Navodaya Vidyalaya (supra), the departmental inquiry not undertaken. The teachers of the girls student working on temporary basis committing the misconduct towards the girls student. For misconduct, involving moral turpitude, after dispensing with the inquiry, punishment of dismissal was imposed. The Supreme Court said that the summary procedure necessitated only to record reason for 23 not holding the inquiry, inquiry not a panacea and the Supreme Court upheld the termination and said that no violation has been caused of natural justice.
31. In the case of Dr. Indra Dutt Pandey v. Central Administrative Tribunal Writ Appeal No. 1168/2005, the Division Bench of the Allahabad High Court passed the Judgment on 07.12.2016 and it is found that the dispension of the regular inquiry and the termination of the applicant was justified. In para-33, the D.B. mentioned, as under: -
"33. In the present case, petitioner was a Principal of a Secondary Educational Institution where girl students were also studying. Complaints of indecent sexual behaviour and molestation on the part of Principal with girls students was confirmed in summary inquiry conducted by Committee constituted by Authorities of KV Sangathan who is authorized to do so under the rules. This material was made available to petitioner along with accusation and he was given opportunity to submit reply in which in a guarded manner he admitted some part of incident with a girl student though not in the same way as was complained by the said girl student. In the entirety of facts and circumstances and material available before competent authority, it found petitioner guilty of allegations and charges leveled against him.
In these circumstances, following procedure prescribed in rules which permits dispensation of regular enquiry, petitioner has been terminated. It cannot be said that procedure followed by authority concerned is illegal or there is denial of adequate opportunity of defence particularly when action taken is squarely within the procedure prescribed under Article 81 (B) of Education Code for KV."
32. In the above mentioned case, the Allahabad High Court also relied upon the case of Avinash Nagra (supra). The Calcutta Bench of the High Court in Debashish Debnath vs. U.O.I., WPCT No. 357 of 2007, Judgment dated 23.06.2011 also placed the reliance upon the case of Avinash Nagra, Babban Prasad and Rathin Pal case (supra) and said that the petitioner was a teacher engaged in Navodaya Vidyalaya, has found guilty of immoral sexual behaviour indulging the sexual harassment of minor girls of class 11. The Court said that it was not expected of a teacher to express his romantic feeling of one of his student studying in the same school and then forcing her to agree to his proposal. The charge of 24 immoral sexual conduct was proved. The delinquent was offered adequate opportunity to defend. The Court found that the passing of the dismissal order is proper and there is no any fault.
33. In the case of Union of India and others V. Sujeet Shubhkalbadiya W.P. (C) No. 749/2004, decided by the Division Bench of Guwahati High Court on 10.11.2006, the termination of employee who was found guilty of immoral behaviour towards the female student, was found justified. The Court said that the inquiry involving minor girl student in the sexual exploitation, therefore, the procedure of regular inquiry dispensed with, was justified. The Court said that no illegality committed by the competent authority. The Court also said that the same standard of criminal trial requiring proof of allegation beyond all reasonable doubt cannot be adopted in the inquiry conducted into the case of sexual harassment of women.
34. In the case of Ashok Kumar Yadav v. Principal Kendriya Vidyalaya, N.T.P.C., Shaktinagar, the Division Bench of the Allahabad High Court found that the dispensing of the inquiry was proper. It is mentioned that the petitioner teacher was found guilty of moral turpitude involving exhibition of sexual behaviour towards the girls student of the School. The Commissioner clearly recorded in writing that he was satisfied that the regular inquiry should be dispensed with because that would not be fair to the student as it was caused serious embarrassment to the girls' student and atmosphere. The Court also found that the reason also contained in the order of termination.
35. In the case of Yogendra Nath v. Commissioner, Kendriya Vidyalaya Sangathan W.P. (C) 510/2014 and C.M. No. 1024/2014, decided by Division Bench of Delhi High Court on 04.02.2014, the applicant was terminated from service upon the basis of allegation of moral turpitude against the petitioner who was a school teacher. The Court found that there is no infirmity in the proceeding against him. In this case, the order 25 was passed under Article 81 (2) and the Court said that the applicant was not entitled to cross examination of the victim in the proceeding against him. In this case, the reliance was also placed upon the Avinash Nagra case. The Court said in para-22 that in the case of Avinash Nagra, similar objection raised by the petitioner, was rejected by the Supreme Court. It was held that the fair procedure to be adopted in such case would be that a show cause notice containing the charge and the fact in support of the charge together with the statement recorded in the preliminary inquiry along with the report of the preliminary inquiry should be given to the charged person and such charged person would be given an opportunity to submit his explanation without having the right to cross examination of the witnesses.
36. The Counsel for the applicant cited the Judgment dated 21.12.2018, passed in O.A. No. 282/2008, by the D.B. of the C.A.T., Allahabad Bench. In the aforesaid case, the Tribunal came to the conclusion that there are major violations of CCS (CCA) Rules, 1965. The detailed discussion is not necessary of the aforesaid case because the law has been settled by the Hon'ble Supreme Court and it is established that no regular inquiry is required.
37. In the present case, the applicant was given an opportunity to file his representation and also get the opportunity to depose. The applicant himself was appeared before the Committee and his statement also recorded by the inquiry committee. The competent authority dispensed with the other regular inquiry and come to the conclusion that the act of the applicant is liable to be dismissal of his services. Hence, no benefit can be given by the aforesaid Judgment to the applicant.
38. In reference of the conduct of 'Teacher', the statements of various respected person of society are mentioned in para 10 and 11 of Avinash Nagra vs. Navoday Vidyalaya Samiti etc., 1997 AGR-SC-2833 = 1997 (2) SCC 534 (dt. 30.09.1996), the Supreme Court mentioned that: - 26
"10. Mahatma Gandhiji, 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 teacher impart all the knowledge in the world to their students but do not inculcate truth and purity amongst them, they will have betrayed them."
Shri Aurobindo has stated that "it is the teacher's province to hold aloft the torch to insist at all times and at all places that this nation of ours was founded on idealism and that whatever may be the prevailing tendencies of the times, our children shall learn to live among the sub-lit peaks." Dr. S. Radhakrishnan has stated that "we in our country look upon teacher as gurus or, as acharyas. An Acharya is one whose achar 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 gurur itya bhidhiyate. Andhakar is not merely intellectual ignorance, but is also spiritual blindness. He who is able to remove that kind of spiritual blindness is called a guru. Are we deserving the _____ appellation of an acharya 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."
11. It is this backdrop, therefore, that the Indian society has elevated the teacher as 'Guru Brahma, Gurur Vishnu Guru Devo Maheswarara'. As Brahma, the teacher creates knowledge, learning, wisdom and also creates our 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."
39. Therefore, it appears from the entire documents, submitted on behalf of both parties in this case, that the inquiry committee conducted the enquiry and recorded the statements of nine witnesses including the applicant. The applicant was also given an opportunity to file his written submission. The competent authority also gave the chance to the applicant to explain his case and the applicant raised various points which were decided by the competent authority and also mentioned the decision upon the various points in the impugned orders. The Appellate Authority 27 also decided the contentions of the applicant, all points have been considered. The Revisional Authority also considered all relevant points. Therefore, it appears that the decision of the competent authority is found justified. No any reason is found to interfere in the aforesaid decision looking to the conduct of the applicant towards his female teacher, subordinate to him, the punishment is proper. Therefore, this O.A. having no any merit hence, dismissed.
(Mohan Pyare) (Justice B.K. Shrivastava)
Member (Administrative) Member (Judicial)
/M.M/