Central Administrative Tribunal - Chandigarh
Coram : Hon Ble Mrs. Shyama Dogra vs Union Of India Through Its Secretary on 28 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH. O.A.NO.1006-HR-2009 Decided on: 28th February, 2011 CORAM : HONBLE MRS. SHYAMA DOGRA, MEMBER (J) AND HONBLE MRS. PROMILLA ISSAR, MEMBER (A). Balbir Singh S/o S. Badhwa Ram C/o Plot No. 59, Saraswati Colony Kheri Markanda near Khera Mandir, Near Sharma Atta Chakki Street Sirsala Road, P.O. Sirsala District Kurukshetra Haryana, PIN-136118. Applicant By : Mr. Aman Bansal, Advocate Versus 1. Union of India through its Secretary, Department of Education, Ministry of Human Resource and Development Shastri Bhawan, New Delhi. 2. Additional Secretary and Vice Chairman Kendriya Vidyalaya Sangathan (Vigilance Section), 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi. 3. Commissioner, Kendriya Vidyalaya Sangathan, (Vigilance Section), 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi. 4. Assistant Commissioner, Kendriya Vidyalaya Sangathan (Regional Office), SCO 72-73, Sector 31, Chandigarh. 5. The Principal, Kendriya Vidyalaya NFL Township Panipat 132106, Haryana. By : Mr. D.R.Sharma, Advocate. Respondents ORDER
HONBLE MS.SHYAMA DOGRA, MEMBER (J) This application under section 19 of the Administrative Tribunals Act, 1985 has been filed by the applicant pleading that he was appointed as a Primary Teacher vide order dated 15.9.1982 and except the controversy in question, his record has been unblemished and there was no complaint whatsoever, against him in the past. However, when he joined in the School at Panipat in July, 2008, he noticed that one Sh. Kaushik was misguiding the students and when it was objected to by him, Shri Kaushik hatched a conspiracy, with the connivance of the girl students and succeeded in filing a frivolous complaint against the applicant. The applicant states that later on some of the girls and their parents withdrew their respective complaints and expressed regret for what they had done. He always discharged his duties with sincerity and honesty.
2. The applicant was asked vide notice dated 11.2.2009 (Annexure A-1) as to why disciplinary action be not taken against him. He gave an explanation that complaints of the girls were false and the same were filed at the behest of Shri V.G. Kaushik, PTI Teacher. He is a casteist and used unparliamentary and intolerable language against the applicant.
3. On 19.2.2009, respondent no. 3 passed orders of suspension of the applicant and disciplinary proceedings were initiated against the applicant (Annexure A-4). On the same day, Sh. R.B. Meena, Education Officer and Smt. Shalini Dixit, Principal, K.V. Zirakpur, were deputed to conduct the summary enquiry. They prepared their report on 4.3.2009 and proved the allegations of immoral behaviour by the applicant against some school girls. The applicant terms the same to be illegal and submits that the staff members had certified that the behavior of the applicant was good and he is a kind-hearted person. Copy of the report is at Annexure A-5, dated 4.3.2009.
4. A show cause notice dated 6.4.2009 (Annexure A-6) was served upon the applicant asking him to explain as to why his service be not terminated, to which he filed his reply dated 20.4.2009 (Annexure A-7). Ultimately, respondent no. 3 passed the termination order of the applicant vide order dated 26.5.2009 (Annexure A-8) under Article 81 (D) of the Education Code. The applicant filed an appeal dated (Annexure A-10) which was also rejected vide order dated 28.10.2009 (Annexure A-11). The applicant pleads that the disciplinary proceedings stand vitiated as the independent witnesses i.e. Staff Members had deposed in his favour which has been totally ignored.
5. The applicant has prayed for setting aside the impugned termination order as well as the order dated 28.10.2009, whereby his appeal has been rejected and for issuance of direction to the respondents to reinstate him in service with all the consequential benefits to which he is legally entitled.
6. The respondents No. 2 to 5 have filed a joint written statement. They submit that on receipt of a complaint dated 31.1.2009 from grandfather of a Girl student of Class VI of KV, NFL, Panipat against the applicant for his immoral behaviour towards the girl students and ineffective teaching, the Principal, KV, NFL, Panipat conducted a preliminary enquiry through a committee on 3.2.2009, consisting of Mrs. D. Kapoor, PGT (Bio); Mr. J. Prasad, PGT (Eco) and Mr. V.G. Kaushik, PET. The Committee in its report found that the behaviour and gestures of the applicant towards girl students were objectionable. The girls felt insecure in his period and his proximity with girl students did not suit his profession. His teaching work was ineffective and he was unable to maintain discipline in the class. Similar complaints were received from other girl students and their parents against the applicant.
7. The applicant was asked to give his explanation which he submitted on 11.2.2009 to the Principal, refuting the charges and instead made counter allegations against Shri V.K. Kaushik, PET and other Staff Members for their bias against the Dalits. Thus, another Committee was constituted with the above said members, with additional members namely Mrs. S.D. Saini, TGT (S.St.) and Shri P.P. Ratwaya, Representative of Chairman, VMC. This committee also found that the behaviour of the applicant was immoral and objectionable. He indulged in loose talk with girl students and they felt harassed. The applicant was placed under suspension on 19.2.2009. An enquiry Committee was constituted with Shri R.B. Meena, Education Officer, KVS, RO, Chandigarh and Mrs. Shalini Dixit, Principal, KV Zirakpur as members. Mr. D. Kapoor, PGT (Bio) of KV NFL Panipat was also deputed as a Member of the Inquiry by the Education Officer vide order dated 20.2.2009.
8. The Enquiry Committee conducted the summary inquiry on 20.2.2009 and 21.2.2009 and submitted its report to the Assistant. Commissioner, Chandigarh on 4.3.2009, proving the allegations against the applicant. It was also proved that there was no merit in the allegation of the applicant that Shri V.G. Kaushik had commented on the caste of the applicant or that he abused the applicant. The applicant could not prove the allegations. Thereafter a show cause notice with the charges, facts in support of the charges, statements recorded in the preliminary as well as main inquiry as well as reports of these inquiries, was given to the applicant, to which he submitted a representation on 21.4.2009. After going through the records of the case, the competent authority formed an opinion that the applicant was prima facie guilty of moral turpitude as he was found indulging in immoral behaviour towards the girl students. The conditions mentioned under Article 81 (B) of the Education Code for KVS were satisfied in the present case as a regular enquiry as per the CCS (CCA) Rules, 1965 could have caused serious embarrassment to the girl students and their guardians/parents and being girl students of tender age, their safety and security had to be protected by preventing their exposure to the tardy process of cross- examination etc. during the inquiry and as such holding of a regular enquiry was dispensed with and the conditions as approved by the Honble Supreme Court in judgment dated 2.5.2003 in SLP (C) No. 90808 of 2002 titled Director, NVS & Others Vs. Shri Babban Prasad Yadav have been complied with. In that case the following preconditions were required to be satisfied before the services of the charged officer could be terminated:-
i) Holding of summary inquiry.
ii) A finding in such summary inquiry that the charged employee was guilty of moral turpitude
iii) Satisfaction of the disciplinary authority on the basis of such summary inquiry that the charged officer was prima facie guilty.
iv) Satisfaction of the disciplinary authority that it was not expedient to hold an inquiry on account of serious embarrassment to be caused to the student or guardian or such other practical difficulties.
v) The recording of the reasons in writing in support of the aforesaid.
9. The respondents, after following the above procedure, terminated the services of the applicant. The applicant had filed an appeal dated 16.6.2009 which has also been considered as per rules and law and was rejected vide order dated 28.10.2009. The applicant has not filed any revision petition against the order of the appellant authority and as such the O.A. is not maintainable.
10. With regard to past service of the applicant, the respondents have stated that earlier also, his services were terminated vide order dated 22.2.2001 but on appeal he was reinstated in service. He was charge sheeted on 16/20.9.2004 and after conducting of inquiry, penalty of reduction of pay by two stages in the time scale of pay for a period of two years without cumulative effect not adversely affecting his pension was imposed upon him on 2.3.2005. This penalty was reduced in appeal from two stages to one stage in the time scale of his pay for a period of two years and not adversely affecting his pension.
10. The applicant has filed a rejoinder reiterating the averments made in the Original Application.
11. We have heard learned counsel for the parties and have also perused the material on the file along with original record produced by the respondents.
12. The first part of the argument raised by the learned counsel for the applicant is that the inquiry report is not tenable in the eyes of law as the statements of independent witnesses have not been properly considered and the applicant has been held guilty on account of malafide intention and arbitrariness on the part of the enquiry committee and there is influence of Mr. V.G. Kaushik on the enquiry report. No doubt, the sole case of the applicant is based on the malafide intention of Shri V.G. Kaushik, PTI Teacher, but surprisingly he has not been impleaded as a party in this O.A and thus it would not be proper for us to go into that question at all. In any case, the Committee constituted for enquiring into the immoral behaviour of the applicant also looked into the issue raised by the applicant against Shri V.G. Kaushik and the Committee found that there was no merit in the allegation levelled by the applicant. The Inquiry Committee also looked into this allegation and the applicant had been given an opportunity to substantiate his allegations but he could not even mention the place or time when remarks about caste were made by Shri Kaushik against him nor could he produce any witnesses. The Committee has specifically recorded that statements of SC/ST staff members of KV Panipat and of Smt. S.D. Saini, TGT (S. St.) shows that Shri V.G. Kaushik, PET had not commented on caste or abused the applicant. Moreover, the applicant did not complaint to the police or the Principal against Sh. Kaushik. Thus, the committee recorded that the charge of applicant was not proved. In view of this, we do not find any material to conclude that the inquiry report stands vitiated on this ground. Admittedly, the committee had conducted the enquiry and after recording statements of girls and their parents, found the allegations to be proved against the applicant. The strict rules of evidence are not applied in enquiry proceedings and as such we do not find any flaw in the enquiry conducted by the Committee and recorded findings against the applicant based on oral and documentary evidence as provided under the relevant provisions applicable in the present case.
13. The applicant claims that the complaints filed by the girl students were false which fact has not been considered by the Committee or the disciplinary authority. This plea apparently is false as from the material placed on record, the small girls of primary classes have explained in detail as to how the applicant used to kiss them and used to touch them physically in different ways. There is enough material with the committee to conclude that the applicant indeed exhibited immoral behaviour towards the girl students.
14. The applicant has pleaded that he is 55 years old and has one son and three daughters, who are well qualified and educated and in his long service career, no such complaint has ever been lodged against him. In this case, however, the issue is with regard to the conduct of the applicant in exhibiting immoral behaviour towards small girls of the School. His past service is not going to help the applicant for the misconduct exhibited by him in the relevant period. It is argued by the applicant that statements of only girls were recorded and not of boys, and this was done with malafide intentions. Be that as it may, it was for the Committee to decide as to which kind of witnesses it wanted to examine and we do not find any fault in the wisdom of the Committee to record statements of girl students and their parents only. In this case, there was no question of affording any opportunity of cross examination to the applicant as it was not a regular enquiry. In so far as opportunity of personal hearing is concerned, we find that the applicant has indeed been given opportunity of hearing to project his side of the case. In any case, he has not been able to bring out any factor as to what prejudice has been caused to him. It has been held in Avinash Nagra Vs. NVS etc., 1997 (1) SCSLJ, Page 42, that in such cases, if cross examination of the girl student is denied, it would not be illegal or violative of principles of natural justice as it is not a regular enquiry.
15. It has also been argued on behalf of the applicant that proper procedure under rule 14 of CCS (CCA) Rules, 1965 should have been followed by the authorities and in the absence of the same, the inquiry proceedings stand vitiated. We do not find any merit in this plea inasmuch as the procedure approved by the Honble Supreme Court in the case of Shri Babban Prasad Yadav (supra) has been followed by the respondents. Time and again the applicant has tried to build up his case on the sole premises of Shri Kaushik being inimical towards him due to his belonging to dalit community. As explained above, on enquiry from the Members of SC/ST, the Committee recorded a finding that there was no merit in the plea taken by the applicant.
16. While considering the validity of the Section 81 (B) of the Education Code, the High Court of Delhi in WP ) No. 3902 of 2008 titled R.S. Misra Vs. Union of India & others, decided on 10.7.2009, has held that adoption of the provisions of Section 81 (B) of the Education Code by the Commissioner, was absolutely legal and valid and it is on record that the Commissioner was himself satisfied with the complaint and the letters received by him from the Principal as well as the Secretary, Chief Secretariat of Imphal. The view taken by the Principal Bench of C.A.T. in O.A filed by applicant R.S. Misra, that his continued resort to sexual harassment of girl students proves his trait and thus the order terminating his service was in order, has been upheld by the High Court. The Apex Court in SLP No. 4627 of 2008 titled Commissioner, K.V. Sangathan & Others Vs. Ratin Pal, decided on 16.8.2010 had quashed the decision of the High Court that the disciplinary authority had not recorded his satisfaction on the desirability of dispensing with the regular inquiry. It was held that the authority had independently analyzed the statement of the girl students and their parents and came to the conclusion that it was not expedient to conduct a regular inquiry as it would embarrass the girl students and their parents and would also vitiate the atmosphere of the school. In our considered opinion, the sequence of facts of the case are the sufficient reasons to take a decision by the competent authority to dispense with the procedure of conducting a regular inquiry.
17. A somewhat similar issue came to be considered by this Tribunal in O.A.No. 212-CH-2004 titled Madan Lal, Vs. Union of India & Others, decided on 20.8.2004 wherein similar allegations like ones in this case of sexual harassment against a teacher of NVS were levelled and proved and his services were terminated from service. His claim was dismissed by this Tribunal holding that the jurisdiction of the Tribunal to interfere in disciplinary matters or punishment cannot be equated with that of an appellate authority. While exercising the power of judicial review, it has no power to encroach upon the jurisdiction of the disciplinary authority by substituting its own findings. The Tribunal has to ensure that the delinquent employee receives fair treatment in accordance with the procedure prescribed and the principles of natural justice. The power to impose penalty is the job of the competent authority. If the enquiry is found to be inconsistent with the rules and is not in accordance with principles of natural justice, what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the basis of proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority unless it is found to be shockingly disproportionate. The adequacy of penalty, unless it is malafide, is certainly not a matter for the Tribunal to concern itself with. The findings of inquiry officer or competent authority cannot be interfered with unless it is a case of no evidence or proper procedure has not been followed or the order has been passed by an authority which is not competent to do so. The observations made by this Bench in that case apply fully to this case also. In this case also, the girl students of Class VI to VIII were involved, with whom the applicant has behaved immorally. The charge levelled against the applicant is of a very serious nature and since rules of strict evidence are not applicable in disciplinary matters as these are dependent on preponderance of evidence, we do not find any fault in the action of the respondents. The impugned orders passed by the disciplinary authority and appellate authority are found to be speaking orders and meet the requirements of law.
18. In view of the above discussion, this Original Application is found to be devoid of any merit and is dismissed, leaving the parties to bear their own costs.
(PROMILLA ISSAR) (SHYAMA DOGRA) MEMBER (A) MEMBER (J) Place: Chandigarh. Dated: 28th February, 2011 HC* - 1 - O.A.No. 1006-HR-2009