A.A. Kumbhakoni, J.
1. Lord Siva in Guru Gita (Skanda Puranam) praises the Universal Guru thus:
Gurur Brahma, Gurur Vishnu Gurur Devo Maheshwara Guru Saakshaat Parabrahma Tasmai Sree Gurave Namah.
(Guru is Brahma, Guru is Vishnu and Guru is the God Siva. Guru verily is the Param Brahma -- the Supreme Being. I (Siva) salute that auspicious Guru).
This is the reason why we Indians bow to Guru -- a TEACHER and place a teacher on a pedestal just below the parents. The character and conduct of a teacher is expected to be more like a `Rishi' and as loco-perentis. We will shortly refer to two Supreme Court judgements in this regard.
2. This occasion to remind ourselves of these expectations as to 'the status and dignity of a teacher' has arisen in view of this petition which is filed by a male teacher against whom such charges are held proved which allege Moral Turpitude and Misconduct by such teacher involving exhibition of immoral sexual behaviour towards girl students of the 1st respondent college.
3. The petitioner, by the present Petition, impugns the judgement and order delivered by the Presiding Officer, Mumbai University and College Tribunal, dated 3.5.2005 in Appeal No. 24 of 2004 whereby the appeal filed by the petitioner has been dismissed and the order of removal of the petitioner from the service of the respondent educational institution dated 1.9.2004 has been confirmed. The case has a chequered history. Without getting entangled in the entire web of irrelevant facts, we may set out hereunder bare minimum facts required for the effective disposal of the present petition.
4. Bombay Physical Culture Association is an Association which runs a College of Physical Education. The 1st respondent herein is the principal of the College and the 2nd respondent is the Secretary of the society which runs the 1st respondent College. For the sake of brevity, both these respondents herein are hereinafter referred to as the 'management'.
5. The petitioner joined the aforesaid College on 12.6.1989. On 6.10.1990, a complaint was filed by a girl student alleging misconduct against the petitioner for which the petitioner tendered an apology. It appears that the management condoned the misconduct of the petitioner and issued him a fresh appointment order dated 16.4.1991. Before the ink on the letter of apology and consequent fresh appointment order could dry, it appears that the petitioner continued with his misconduct in respect of girl students resulting into filing of a second complaint against the petitioner by another girl student. The petitioner again tendered an apology on 22.9.1992. It appears that the management did not pursue the matter further.
6. It is not necessary to set out the details of these two instances at length. However, it needs to be mentioned that the first incident relates to a complaint dated 6.10.1990 filed by a girl student alleging that the petitioner was in the habit of leering lecherously at the girl students and that on one occasion, the petitioner had asked the complainant girl student to accompany the petitioner to a movie or drama. It was further alleged that the petitioner told the complainant lady that it was upto him to give to her first class mark in case she extended the favour sought by him.
The second incident involving the petitioner's misconduct is alleged to have taken place in September, 1993. It is alleged that at the time of teaching yoga to the girl students, the petitioner deliberately made them lie in the veranda of the college in `shavasan' pose for an unreasonably long time. It is further contended that at that time, it was raining and the girl students on account of rain water were totally soaked and their clothes were clinching to their bodies. It is the case of the management that under the pretext of observing their performance, the petitioner is said to have been around them leering at their bodies and private parts from different angles.
7. Though the Tribunal by its impugned judgement has recorded findings that both the aforesaid incidents have been proved, it is also noted that the management had condoned the said misconduct of the petitioner and did not take any action against the petitioner on these counts. It is further correctly observed that it was therefore not permissible for the management to rely upon these incidents now. We find that the following observations of the College Tribunal would suffice the purpose:
21. It is necessary to clarify that although in view of condonation of the appellant's misconduct, the Management cannot make use of the said incidents in the course of the enquiry against the appellant. However, these two incidents can be relied upon to show the past record about the behaviour of the appellant.
8. The third incident allegedly occurred during the academic year 1994-95. It is alleged that the petitioner along with other teachers and students of the College had gone for a hike to Kanheri caves. Some of the students including one Ms S. Patil were crossing a stream of water. It is alleged that while crossing the stream midway, the petitioner splashed water on lady students and particularly on the chest of this girl student and drenched her completely. It is the case of the management that the petitioner splashed water on other students as well and made them sit in the stream by physically holding them. It is further alleged that other teachers who were present there tried to plead with the petitioner not to do so, but the petitioner retorted by saying that it was none of their business. It is the case of the aforesaid girl that the petitioner pushed her in water, as a result of which she got completely wet and felt ashamed.
9. On 18.2.1995 fourth incident is alleged to have occurred with another girl student by name Ms V. Naik which resulted into filing of a police complaint against the petitioner on the charge that the petitioner had outraged her modesty. On the basis of the said complaint, the police registered a case against the petitioner for an offence under Section 354 of the I.P.C. and arrested him. The petitioner was, however, released on bail on the next day after he was produced before the Metropolitan Magistrate. The petitioner was acquitted in the aforesaid criminal proceedings bearing No. 1293/P/95 by judgement and order of the criminal Court dated 24.1.2000. According to the petitioner, Criminal Appeal No. 77/2000 filed in that behalf was also dismissed by this Court. Be that as it may.
10. Before proceeding further, we will hasten to add that the management has also alleged occurring of similar other incidents of misconduct which the Tribunal has, so to say, not considered as proved to hold the petitioner guilty of charges levelled against the petitioner.
11. The petitioner was suspended by an order dated 22.2.1995. The management conducted an inquiry in regard to the misconduct of the petitioner initially on the basis of charge-sheet dated 28.3.2000, but the same never reached finality on account of appeals and Writ Petitions arising therefrom, ultimately resulting into an order passed in Appeal No. 90 of 2001 by the College Tribunal on 2.9.2002 directing holding of a fresh inquiry. In pursuance of this direction, charges were again framed on 10.4.2003. In all eight charges were framed alleging misconduct within the meaning of Section 439-D(a), Explanations (a)(i) & (ii) read with Section 439-B, (b), (c), (d), (f) and (h) as also read with Section 444(B)(7) of the University Statutes. One separate charge was framed under Section 439-D(b), explanation (b) alleging engagement in acts involving moral turpitude. And another separate charge was framed under Section 439-D(c), explanations (c)(ii) & (iii) of the aforesaid statutes.
12. These statutes read thus:
Section 439D. A teacher who is confirmed in service is liable to be suspended or compulsorily retired or removed/dismissed from service or his services are liable to be terminated on one or more of the following grounds:
(a) Misconduct,
(b) Moral turpitude,
(c) Wilful and persistent negligence of duty,
(d) Permanent physical or mental unfitness, and
(e) Incompetence; provided that the ground of incompetence shall not be used after a teacher has served the college for a period of five years or more.
Explanations:
(a) 'Misconduct' shall include the following:
(i) Breach of the terms and conditions of service laid down by the Statutes;
(ii)Violation of the Code of Conduct.
(b) 'Moral turpitude' shall include the following:
Any misbehaviour derogatory to the status and dignity of a teacher.
(c) 'Wilful and persistent negligence of duty' shall, among other things, include the following:
(i) Dereliction of duties like not engaging the allotted classes or not completing the prescribed syllabi;
(ii) Persistent absence from duty without previous permission;
(iii) Failure to discharge any of the duties laid down by the Statutes.
Section 439B. The following shall be the norms governing the code of conduct for teachers:
(a) A teacher shall perform his academic duties and work related to examinations as assigned. No remuneration shall be payable to the teachers for internal assessment/home examinations conducted by the college.
(b) A teacher shall not discriminate against a student on political grounds or for reasons of race, religion, caste, language or sex or for other reason of an arbitrary of personal nature and shall not incite students/teachers against other students or other teachers, colleagues or administration/Governing Body of the college and the University.
(c) A teacher shall have freedom of thought and expression. He shall not misuse the facilities or forum of the college/University.
(d) A teacher shall not refuse to carry out the academic and administrative decisions taken by the Principal/Governing Body.
(e) A teacher shall not make use of the resources and/or facilities of the Department/College/University/Governing Body for personal, commercial, political or religious purposes.
(f) A teacher shall not be partial in assessment of a student or deliberately overmark, undermark or victimize a student on any grounds.
(g) A teacher shall not conduct/participate in private coaching classes directly or indirectly. He shall also not accept private tuitions.
(h) A teacher shall not indulge in or resort to, directly or indirectly, any malpractice or unfair means in teaching/examination/ administration.
(i) A teacher shall not furnish incorrect information regarding his qualifications, experience, age, etc. in respect of his appointment/promotion.
Failure to conform to the abovementioned norm/s shall be construed as misconduct.
13. The petitioner submitted his reply to the charge-sheet and the inquiry proceedings commenced with effect from 28.6.2003. The management produced various documents and examined as many as 21 witnesses in respect of the aforesaid charges. It is worthwhile to note, and we emphasise, that the management also examined the girl students who were material witnesses to the incidents alleged against the petitioner and who had lodged complaints/protests in respect of the objectionable behaviour of the petitioner with the girl students.
14. The petitioner was given full opportunity even of cross-examining all these witnesses, including the girl students who claimed to be victims of the alleged misconduct of the petitioner. Though it is not even the case of the petitioner to the contrary, still we must mention that during the inquiry, the petitioner was given full opportunity to defend himself not only by way of conducting cross-examination of the witnesses examined by the management but also by leading his own evidence. Admittedly, inquiry was conducted in conformity with the relevant statutes and in full compliance with the principles of natural justice.
15. The inquiry concluded on 10.2.2004 and the report thereof was submitted by the Inquiry Officer to the management on 28.3.2004. The Inquiry Officer found the petitioner guilty of alleged Misconduct and Moral Turpitude. Out of eight charges, seven are held proved.
16. The management accepted the report of the Inquiry officer in totality and consequently issued show cause notice dated 13.7.2004 to the petitioner. We will deal with this show cause notice at some length hereunder while considering one of the contentions raised in the present matter on behalf of the petitioner criticising this notice. At this stage, it will be enough to state that the petitioner has replied this notice on 10.8.2004 in extenso which reply runs into as many as 18 typed pages wherein the petitioner has dealt with each and every aspect of the report of the Inquiry Officer, a copy of which was sent to the petitioner alongwith the aforesaid show cause notice by the management.
17. Having found the reply of the petitioner unsatisfactory, the management proceeded to issue a letter of termination dated 1.9.2004 terminating the services of the petitioner. The petitioner carried the matter to the College Tribunal by filing Appeal No. 24 of 2004 on 29.9.2004. The Tribunal has dismissed the appeal of the petitioner by its judgement and order dated 3.5.2005 which has given rise to the present petition.
18. Before dealing with the contentions raised on behalf of the petitioner and its reply by the management, we must remind ourselves of the jurisdictions which we have in entertaining these arguments. Instead of giving a long list of various Supreme Court as also High Court judgements in this regard, it will be sufficient to quote paragraph 16 of the judgement of the Supreme Court delivered in the case of Apparel Export Promotion Council v. A.K. Chopra reported in : (1999)ILLJ962SC which reads thus:
16. The High Court appears to have overlooked 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 reappreciate 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. Lord Hailsham in Chief Constable of the North Wales Police v. Evans observed:
The purpose of judicial review is to ensure that the individual rceives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized or enjoined by law to decide for itself, a conclusion which is correct in the eyes of the court.
It may be mentioned here that the aforesaid judgement of the Supreme Court also dealt with a similar case involving allegations of misconduct in regard to female employees at work place amounting to sexual harassment. This was also a similar case of departmental inquiry resulting into inflicting of appropriate punishment and its challenge by the delinquent before the High Court and, ultimately, the Supreme Court. Suffice it to say that it is not permissible for us to go into the factual findings recorded not only by the Inquiry Officer and accepted by the management, but also affirmed by the appellate Tribunal. These findings in a nutshell are as under:
There were several girl students in the College where the petitioner was employed. The physical education to be given to the students included lectures in the class-rooms as well as outdoor activities such as physical exercises. The acts of sexual misbehaviour attributed to the petitioner involve all girl students. Before the Inquiry Officer, the management examined all the girl students (except one) who had lodged various complaints against the petitioner. Seven witnesses were examined by the management in support of the allegations made against the petitioner as to the incidents which took place during the hike of Kanheri caves (incident involving splashing water on the chest of a girl student, drenching her completely and making the students sit in a steam by physically holding them). Three witnesses, including one Lecturer, one male student and one girl student, have deposed during the course of the inquiry as eye-witnesses to these incidents.
The incident which took place on 18.2.1995 that led to the prosecution of the petitioner is also held as proved not only by the Inquiry Officer but also by the College Tribunal. The allegations in this regard that the appellant had taken one girl student Ms Naik to Hotel Ramraj and molested her by catching hold of her hand and touching her breast is also held proved not only by the Inquiry Officer but also by the appellate Tribunal on the basis of three witnesses examined by the management in support of its allegation. In this regard, the Tribunal has specifically observed that the incident took place in February 1995 and the evidence of the complainant, the girl student, was recorded before the Inquiry Officer in December, 2003. In the meanwhile, she got married. Even then after about eight years of the incident and even after marriage, the victim girl student appeared before the Inquiry Officer led her oral evidence in support of the aforesaid incident. She boldly and successfully faced the cross-examination conducted on behalf of the petitioner. It is correctly observed by the College Tribunal in paragraph 33 of the impugned judgement that these facts are eloquent and suggest that such a girl student would not state false or concocted story under the given circumstances. The College Tribunal further observed in paragraph 27 that apart from these specific incidents, there is a general allegation also against the petitioner about his repeated misbehaviour with girl students in various manner. It is further observed in paragraph 38 by the College Tribunal as under:
38. It will thus be seen that the students and colleagues of the appellant uniformly state that the appellant's behaviour in relation to the lady students was improper and not befitting a teacher. Nothing has been elicited in the cross examination of any of the above mentioned witnesses that they were on cross terms with the appellant and that therefore they were depositing falsely. It is one thing if a singular witness states something about the abnormal behaviour of somebody. But it is a different thing when several witnesses state in chorus that the appellant used to misbehave with the lady students in various ways. The latter certainly carries weight.
19. On the basis of these and similar other observations and findings, the College Tribunal has concluded that there can be no manner of doubt that the behaviour of the petitioner revealed by the series of incidents cited by the witnesses certainly amounts to sexual harassment caused by the petitioner to the girl students and that the conduct of the petitioner with girl students was derogatory to his status and dignity as a teacher and, therefore, it amounts to moral turpitude and also misconduct. The Tribunal has also recorded a finding that the petitioner is further found to have misused his position as a teacher and abuse the freedom available to him in that capacity for the purpose of sexually harassing the girl students. A further finding is also recorded in the impugned judgement that the petitioner was also found to use unfair means in 'teaching' by assuring all girl students of giving good marks in the internal assessment and that the petitioner was discriminating male students on the ground of sex. The Tribunal thus has confirmed the findings of the Inquiry Officer that the petitioner was guilty of charges of Misconduct and Moral Turpitude.
20. Apart from these findings, the Tribunal has also found the petitioner guilty of other three allegations made against him by the management. These allegations are as under:
Firstly, it is found that the petitioner was avoiding to sign pay register in respect of receipt of the amount of subsistence allowance. Secondly, during the suspension period, the petitioner is found to have left the headquarter and stayed at Pune without prior permission of the competent authority and, thirdly, the petitioner is also found to have been filing cases against the management in the Court at Pune with a view to harass and pressurize the management. The Tribunal has thus found that the charges levelled against the petitioner on these three counts are also proved.
21. The learned Counsel appearing on behalf of the petitioner made a feeble attempt to stamp these findings of the Tribunal as perverse. He was unable to make out any case in this regard which would even remotely suggest that any of the aforesaid findings recorded by the Inquiry Officer as confirmed by the Tribunal to be perverse or even doubtful. We, therefore, hereby express our inability to discard any of the aforesaid findings of the Inquiry Officer as confirmed by the Tribunal. We must proceed in the present matter on the basis that the aforesaid findings of facts recorded by the Inquiry Officer, as confirmed by the Tribunal, are correct.
22. Now we need to examine the sustainability of various contentions raised on behalf of the petitioner within the four corners of law and conclusive findings recorded by the Inquiry Officer as confirmed by the Tribunal.
23. The learned Counsel appearing on behalf of the petitioner strenuously contended that the show cause notice dated 13.7.2004 issued by the management was not in consonance with the judgment delivered by the Supreme Court in the case of B.D. Gupta v. State of Haryana reported in : (1973)ILLJ26SC . Relying on the observations of the Supreme Court made particularly in paragraph 9 of the aforesaid judgement, it was contended on behalf of the petitioner that show cause notice issued by the management in the present case does not show any application of mind and that it is not a 'focussed' notice inasmuch as it is very vague and does not call upon the petitioner to show cause in respect of specific crystalised points/issues. It was submitted that the show cause notice was more in the nature of a forwarding letter rather than a specific notice calling upon the petitioner to show cause on specific aspects of the matter set out in the said notice.
24. The show cause notice in issue dated 13.7.2004 is produced as Annexure A-6 at page 117 of the present petition. From a mere perusal of the notice, it is seen that along with the notice, the entire report submitted by the Inquiry Officer to the management was forwarded to the petitioner. This notice also states that all the copies as mentioned in the report as exhibits were already sent to the petitioner and that the petitioner has received the same during the course of the departmental inquiry. The petitioner does not dispute the correctness of these statements. As set out hereinabove, the aforesaid report was submitted by the Inquiry officer after conducting departmental inquiry against the petitioner on the basis of the specific charges and after giving due and reasonable opportunity to the petitioner to defend these charges. This show cause notice called upon the petitioner to show cause as to why the proposed penalty of dismissal/removal of the petitioner from service of the college should not, for good and sufficient reasons, be imposed upon him. We thus find that the show cause notice especially having been accompanied by the copy of the entire report submitted by the Inquiry Officer calling upon the petitioner to show cause why the proposed penalty should not, for good and sufficient reasons, be imposed upon him cannot be termed as vague or as a `mere forwarding letter' as contended by the petitioner.
25. The reply given by the petitioner to this show cause notice dated 10.8.2004 cannot be overlooked in the context of the submissions made by the petitioner which are set out hereinabove. If what is now contended before us is true, such grievance could have been made by the petitioner in his reply. However, no such grievance was made by the petitioner in his reply. This fact shows that the aforesaid contention is raised only as and by way of an after-thought and is not bona fide/correct.
Even otherwise, this reply of the petitioner dated 10.8.2004 produced at Annexure A-7 at page 118 of the petition deals with each and every finding of the Inquiry Officer and ventures to demonstrate as to how each and every finding recorded by the Inquiry Officer against the petitioner in the report of the Inquiry Officer (a copy of which was forwarded along with the show cause notice to the petitioner) is either factually incorrect, or even otherwise, should not be accepted by the management. Various contentions taken up by the petitioner in this reply unmistakably show that the petitioner was given full opportunity by the management to show cause even as to why the findings of the Inquiry Officer recorded in its report should not be accepted by the management. Of course, in addition thereto, admittedly, an opportunity was given to the petitioner to show cause as to why the proposed penalty of dismissal/removal of the petitioner from service be also not imposed upon him. Consequently, we do not find any substance in the contention of the petitioner that the show cause notice is vague in any manner whatsoever or that it is not `focussed' or that it does not show any application of mind on the part of the management.
26. The learned Counsel appearing on behalf of the petitioner stretched his argument in this regard little further by contending that the management ought to have given a specific opportunity to the petitioner to show cause as to why the finding of the Inquiry Officer be not accepted by the management and that if such an opportunity is not given to the petitioner, it will amount to breach of the principles of natural justice. In this regard, we will hasten to reiterate the aforesaid observations of ours, viz., that such an opportunity was given to the petitioner and that, in fact, the petitioner has availed of such opportunity by giving aforesaid detailed reply to the show cause notice running into 18 typed pages dealing with all the findings of the Inquiry Officer.
27. Apart from these factual aspects, we may reject the contention of the petitioner also in view of statute 444 of the University of Bombay which deals with the procedure for imposing major penalties. Clause (I) of statute 444 reads thus:
(I) Action to be taken on the Report of the Inquiry Officer:
On receipt of the report of the Inquiry Officer, the Governing Body shall immediately decide the action to be taken in the light of the findings of the Inquiry Officer. In case any of the charges against the teacher concerned are held as proved, the Governing Body shall decide the quantum of penalty to be imposed on him and shall give him a notice in the form as shown in Appendix `L' asking him to show cause, within a period of fourteen days from the date of receipt of the show cause notice, why the proposed penalty should not be imposed on him. The teacher concerned shall also be supplied with a copy of the report of the Inquiry officer along with the show cause notice.
We may also reproduce hereunder Appendix `L' for the better understanding of the aforesaid statute:
APPENDIX `L'
(See Statute 444)
FORM OF SHOW CAUSE NOTICE
(Registered Post A/D)
To
Subject: Disciplinary action
Dear Sir/Madam,
I am to forward herewith a copy of the report submitted by the Inquiry Officer who conducted the Departmental Inquiry into your conduct and to state that with due consideration of the findings arrived at in this respect, it has been held that Charges No. _________ mentioned in the memo of charges served upon you have been proved against you. It is, therefore, proposed to dismiss/remove you from the service of the College/retire you compulsorily from the service of the College/reduce you to a lower post or pay-scale or the lower stage of increment in your present time-scale of pay.
2. You are hereby called upon to show cause within a period of fourteen days from the date of receipt of this notice why the proposed penalty should not, for good and sufficient reasons, be imposed upon you. On your failure to show cause within the time allowed to you, it will be presumed that you do not wish to show cause.
3. You are requested to acknowledge receipt of this notice.
Yours faithfully,
Place: Chairman/Secretary of the
Date: Governing Body/Principal of the
_______________ College. Encl.: As above.
28. A bare perusal of this form and the aforesaid show cause notice clearly demonstrate that the show cause notice issued in the present case is in conformity with appendix `L' of the statute. Moreover, statute 444 (I) referred to above does not at all contemplate giving any opportunity to the petitioner to put up his case before the management as to why the report of the Inquiry Officer should not be accepted by the management. Thus, the relevant statute which governs the procedure for imposing major penalties does not contemplate giving of any such opportunity to the petitioner which as contended by the learned Counsel on behalf of the petitioner ought to have been made available to the petitioner. We are, therefore, unable to accept the contention of the learned Counsel to the effect that in between the stage of submission of the report by the Inquiry Officer with the management and its acceptance by the management, the petitioner ought to have been heard by the management and that if at all the petitioner is not so heard, the action of the management of acceptance of the report of the Inquiry Officer would be in breach of the principles of natural justice.
29. The reliance placed by the learned Counsel appearing on behalf of the petitioner on the aforesaid judgement of the Supreme Court delivered in the case of B.D. Gupta (supra) is wholly misplaced. A narration of few facts of the aforesaid reported judgement would be enough to show as to why it will not help in any manner the present petitioner in advancing his case.
Two distinct charges were framed in that case. These charges have been described as charge No. 1(a) and charge No. 1(b) in the said judgement. The delinquent submitted a composite reply to both these charges. The Inquiry Officer appointed therein submitted a report exonerating the delinquent completely of one of the charges, viz., charge No. 1(a). However, a fresh show cause notice after initial round of inquiry, etc., was subsequently issued to the delinquent informing the delinquent that his original reply issued by him to both the charges and the allegations levelled against him was found unsatisfactory and that certain action was proposed to be taken against him. In view of these facts, the Supreme Court has observed as under:.The appellant's explanation of December 18, 1956, which is said to have been found unsatisfactory by Government was a reply not only to charge 1(a) but also to charge 1 (b). Of these two charges, so far as charge 1(a) is concerned the appellant had been completely exonerated in October, 1958. There is nothing, however, in the 'show-cause notice' of October 26, 1966, to indicate clearly that the dissatisfaction of Government with the appellant's reply of December 18, 1956, had nothing to do with charge 1(a). The 'show-cause notice' merely states in vague general terms that the appellant's reply to the charges and allegations was unsatisfactory. Even if we were to assume, though there is no reasonable ground for this assumption, that Government did not have in mind the contents of charge 1(a) while serving this 'show-cause notice', there is nothing in the 'show-cause notice' to give any indication that the particular allegations regarding which the appellant had failed to furnish a satisfactory explanation were referable only to Charge 1(b). The notice is vague on other grounds as well. As one reads the first paragraph of the notice, the questions that at once assail one's mind are many: In what way was the explanation of the appellant unsatisfactory? Which part of the appellant's explanation was not unsatisfactory? On what materials did the Government think that the appellant's explanation was unsatisfactory. It is to our mind essential for a 'show-cause notice' to indicate the precise scope of the notice and also to indicate the points on which the officer concerned is expected to give a reply. We have no manner of doubt that the 'show-cause notice' in the instant case did not give the appellant any real opportunity to defend himself against the complaint that his previous explanation of December 18, 1956, had been unsatisfactory. The appellant did not, therefore, get any chance at all to show that he did not deserve a censure upon his conduct.
10. We were told that since the appellant was aware of the charge and also aware of the reply he had given to the charges made against him, it was enough for Government to tell him that his answer was unsatisfactory. It was argued that since the 'show-cause notice' really pointed this out and mentioned that the very lenient sentence of censure upon the appellant's conduct was going to be imposed, there was nothing further that Government could be expected to do in this case. We have no hesitation in rejecting this contention made out on behalf of the State. It is manifestly clear that the 'show-cause notice' was too vague to permit the appellant to deal with it effectively and that consequently the order of censure passed on him is bad and liable to be struck down.
30. The facts of the aforesaid reported judgement show that the original reply/explanation was given by the delinquent for two charges and that subsequently the delinquent was completely exonerated of one charge. It further shows that the show cause notice was issued thereafter without indicating as to whether it pertains to both the charges or only one charge and if so, which was the charge for which the delinquent was called upon to show cause. In this context, the Supreme Court has made the aforesaid observations. As against the facts of this reported judgement, in our case, the management accepted the report of the Inquiry Officer in totality and issued the show cause notice in question to the petitioner calling upon the petitioner to show cause, obviously, in respect of the entire report coupled with the proposed punishment.
31. The learned Counsel appearing on behalf of the petitioner, to buttress his submission that the show cause notice in the present case is defective, also relied upon two other judgements of the Supreme Court, one delivered in the case of State Bank of India v. K.P. Narayanan Kutty reported in : (2003)IILLJ1SC and Union of India v. Mohd. Ramzan Khan reported in : (1991)ILLJ29SC . We find that in the case of State Bank of India (supra) also, the disciplinary authority disagreed with some of the findings of the Inquiry Officer. This is also not a case where the management or the disciplinary authority had accepted the report of the Inquiry Officer in totality, like the case in hand. Obviously, therefore, the decision in State Bank of India (supra) has no application at all. Inasmuch as the decision in Union of India (supra) is concerned, the ratio of the said judgement also has no applicability to the facts of the present case. The Supreme Court in this judgement of Union of India's case (supra) has observed in paragraph 15 at page 596 as under:
We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendation, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-second Amendment has not brought about any change in this position.
In paragraph 18, the Supreme Court has further observed as under:
18. We make it clear that whenever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter.
At the cost of repetition, we may say that admittedly, in the present case, a copy of the entire report of the Inquiry Officer which was submitted to the management was forwarded to the petitioner along with show cause notice. We, therefore, find that the decision of the Supreme Court in the case of Union of India (supra) cannot be any assistance to the Advocate for the petitioner in advancing his submission referred to hereinabove.
32. We may mention that the decision in the case of B.D. Gupta (supra) relied on behalf of the petitioner was also relied by the contesting parties in the Supreme Court and has been referred to by the Supreme Court in the judgement delivered in the case of Shadi Lal Gupta v. State of Punjab reported in : (1973)ILLJ435SC . The Supreme Court has observed in this case as under:
3. This is perhaps the first case that comes to this Court in the matter of a minor punishment. The appellant relied upon the decision of this Court in B.D. Gupta v. State of Haryana, the facts of which are rather complicated, and are unnecessary for the purpose of this case. One of the points that arose in that case was regarding the minor punishment of censure, though it was an incidental one in an appeal which involved a much more important question. It was held that the show cause notice in that case did not give the appellant (the aggrieved Government servant) any real opportunity to defend himself. That is not the case here.
Thus, B.D. Gupta's case will have to be considered in the light of facts of that case which as demonstrated hereinabove are totally different from the facts of our case.
33. Inasmuch as the aforesaid argument of the petitioner now alleging breach of principles of natural justice is concerned, we may refer to the judgement of the Supreme Court delivered in the case of Suresh Koshy George v. University of Kerala reported in : [1969]1SCR317 . Dealing with the requirement of the principles of natural justice in the context of arguments advanced on behalf of the petitioner set out hereinabove, the Supreme Court in paragraph 15 of this judgement has observed thus:
15. There seems to be an erroneous impression in certain quarters evidently influenced by the provisions in Article 311 of the Constitution particularly as they stood before the amendment of that Article that every disciplinary proceeding must consist of two inquiries, one before issuing the show cause notice to be followed by another inquiry thereafter. Such is not the requirement of the principles of natural justice. Law may or may not prescribe such a course. Even if a show cause notice is provided by law, from that it does not follow that a copy of the report on the basis of which the show cause notice is issued should be made available to the person proceeded against or that another inquiry should be held thereafter.
In the same judgement delivered in the case of Suresh Koshi George (supra) in paragraph 7, the Supreme Court has observed that the question whether the requirements of natural justice are being met by the procedure adopted in a given case must depend upon a greater extent on the facts and circumstances of the case in point, the constitution of the Tribunal and the rules under which it functions. As demonstrated hereinabove, the relevant statute 444 does not at all contemplate giving of any opportunity to the petitioner which, in the submission of the learned Counsel appearing on behalf of the petitioner ought to have been given to the petitioner. We are, therefore, unable to accept the submissions made in this regard on behalf of the petitioner.
34. Inasmuch as giving 'reasonable opportunity' to the petitioner in this regard is concerned, we may rely on the observations of the Supreme Court made in the case of U.P. Government v. Sabir Hussain reported in : (1975)IILLJ93SC , which judgement was, in fact, relied on behalf of the petitioner:
Thus the broad test of 'reasonable opportunity' is, whether in the given case, the show-cause notice issued to the delinquent servant contained or was accompanied by so much information as was necessary to enable him to clear himself of the guilt, if possible, even at that stage, or, in the alternative, to show that the penalty proposed was much too harsh and disproportionate to the nature of the charge established against him.
Applying the aforesaid test to the facts of the present case, we only note that a reasonable opportunity was, in fact, given to the petitioner to show cause inasmuch as a copy of the entire report submitted by the Inquiry Officer was forwarded to the petitioner along with the show cause notice. The impugned action of the management as confirmed by the Tribunal, therefore, cannot be faulted either on the ground of 'breach of the principles of natural justice' and/or on the ground that 'a reasonable opportunity' contemplated by relevant statutes and the procedure laid down thereunder was not given to the petitioner.
35. This takes us to a very short ground tried to be made out by the petitioner in the light of acquittal of the petitioner in a criminal case by the criminal Court and confirmed by the High Court. The learned Counsel appearing on behalf of the petitioner, placing reliance on the judgement of the Supreme Court delivered in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. reported in : (1999)ILLJ1094SC , contended that the petitioner was entitled to the benefit of the observations made by the Supreme Court on page 217, line No. 3 from the bottom of the page. The contention of the learned Counsel is that the case of the petitioner falls in the category of 'little exception' carved out by the Supreme Court. Suffice it to say, in this regard, that similar contention was raised before the Tribunal. The Tribunal has devoted paragraphs 28 to 36 of the judgement on this issue and we do not find any reason not to agree with these observations of the Tribunal. In short, the Tribunal has observed, and we say correctly, that the case of the petitioner does not fall in the category of 'little exception' carved out by the Supreme Court in the aforesaid case of Capt. M. Paul Anthony (supra). The learned Counsel appearing on behalf of the petitioner was not at all able to make even a dent in any of these findings of the Tribunal.
36. This brings us to another contention raised on behalf of the petitioner, relying on the judgement delivered by the Supreme Court in the case of Vishaka v. State of Rajasthan reported in : AIR1997SC3011 . The learned Counsel appearing on behalf of the petitioner ingeniously contended that the inquiry in the present case is unsustainable as the same has been conducted in breach of the guidelines and norms prescribed by the Supreme Court under Article 141 of the Constitution by the aforesaid judgement (paragraph 17). This objection was raised on the premise that in the present case, though the allegations made against the petitioner herein were of causing sexual harassment to the girl students, an Inquiry Committee was not constituted in accordance with the aforesaid 'guidelines and norms'. It was submitted that 'Complaints Committee' contemplated by these 'guidelines and norms' was required to be headed by a woman and that, in any case, it must consist of more than one person. A case was, therefore, tried to be made on behalf of the petitioner that in the present case, contrary to the aforesaid 'guidelines and norms', only one Inquiry Officer was appointed and that he was a man and not a woman. Reliance was also placed on behalf of the petitioner on the circulars issued by the acting Vice Chancellor and the Vice Chancellor of the University of Mumbai dated 31.8.2004 and 15.8.2004, respectively, for implementation of the aforesaid guidelines and norms. On the basis of these circulars issued under Section 14(8) of the Maharashra Universities Act, 1994, it was contended that such an Inquiry Committee is a Committee required to be appointed by the Management Council of the University of Mumbai and not by the management of the employee and further that the composition of the Inquiry Committee so appointed in the present case, which has enquired into the charges made against the petitioner, was contrary to the aforesaid guidelines and norms of the Supreme Court.
37. In this regard, we must place reliance on the various judgements which followed the judgement delivered by the Supreme Court in the case of Vishaka (supra). These judgements observe that the observations from the decision of Vishaka's case (supra) operate in the absence of any substantive law covering that field. We reproduce hereunder the observations made by the Supreme Court in paragraph 39 of its judgement delivered in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan reported in : 2005CriLJ1441 :
39. Finally as observed from the decisions in Vishaka v. State of Rajasthan and Vineet Narain v. Union of India directions issued by this Court under Article 142 from the law of the land in the absence of any substantive law covering that field. Such directions 'fill the vacuum' until the legislature enacts substantive law.
In the facts and circumstances of the present case, it may be noted that the charges framed against the petitioner set out hereinabove related to Moral Turpitude and Misconduct committed by the petitioner involving exhibition of immoral sexual behaviour towards girl students. The findings of facts set out hereinabove clearly demonstrate that misbehaviour on the part of the petitioner is 'derogatory to the status and dignity of a teacher'. Explanation (b) set out in statute 439D referred to hereinabove is clearly attracted in the facts and circumstances of the case and the petitioner is clearly guilty of Moral Turpitude.
38. In the facts and circumstances of this case, therefore, we find that the entire procedure has been followed strictly in conformity with the statute framed by the University of Mumbai and, therefore, it cannot be said that the disciplinary action impugned by the present petition has been taken contrary to or in breach of the 'guidelines and norms' laid down by the Supreme Court in paragraph 17 of the judgement delivered in the case of Vishaka (supra). More over, Clause 5 of these very guidelines states as under:
5. Disciplinary action:
Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
39. As the conduct of the petitioner has been clearly found to be one which amounts to Misconduct as defined by the statute of the University of Mumbai and as appropriate disciplinary action has not only been initiated but also completed strictly in conformity with its statutes by the management, we do not find any substance whatsoever in these contentions raised on behalf of the petitioner by placing reliance on the judgement of Vishaka's case (supra). We have serious doubt as to whether a male delinquent can raise such a contention in the facts and circumstances of this case, without being able to even contend that any prejudice was caused to him on account of the alleged improper constitution of the Inquiry Committee. Even otherwise while examining this case in exercise of writ jurisdiction, it will not be just and proper to accept such an argument and consider a further consequential request for a wholesale fresh inquiry, requiring re-examination of especially girl students, etc.
40. The Supreme Court in the case of Avinash Nagra v. Navodaya Vidyalaya Samiti reported in : (1997)IILLJ640SC , had an occasion to explain the importance of the character and conduct of a teacher in the following words:
10. Mahatma Gandhi, the Father of the Nation has stated that 'a teacher cannot be without character. If he lacks it, he will be like salt without its savour. A teacher must touch the hearts of his students. Boys imbibe more from the teacher's own life than they do from books. If teachers impart all the knowledge in the words to their students but do not inculcate truth and purity amongst them, they will have betrayed them....
In the same paragraph, it is further observed thus:.Dr. S. Radhakrishnan has stated that 'we in our country look upon teacher as gurus or, as acharyas. An Acharya is one whose aachar or conduct is exemplary. He must be an example of Sadachar or good conduct. He must inspire the pupils who are entrusted to his care with love of virtue and goodness. The ideal of a true teacher is andhakaraniridhata 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 noble 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.
In the same judgement, further giving the background as to why in our Indian society, teachers are placed on the pedestal below the parents, the Supreme Court has observed thus:
11. It is in this backdrop, therefore, that the Indian society has elevated the teacher as 'Guru Brahma, Gurur Vishnu, Guru Devo Maheswaraha.' As Brahma, the teacher creates knowledge, learning, wisdom and also creates out of his students, men and women, equipped with ability and knowledge, discipline and intellectualism to enable them to face the challenges of their lives. As Vishnu, the teacher is preserver of learning. As Maheswara, he destroys ignorance. Obviously, therefore, the teacher was placed on the pedestal below the parents.
41. In another judgement delivered by the Supreme Court in the case of Manager, Nirmala Senior Secondary School, Port Blair v. N.I. Khan, reported in : (2003)12SCC84 regarding the importance of the character of a teacher, the Supreme Court has observed thus:
2. ...An educational institution runs smoothly when the teacher and the taught are engaged in the common ideal of pursuit of knowledge. It is, therefore, manifest that the appointment of teachers is an important part in educational institutions. The qualifications and the character of the teachers are really important.
42. Particularly when we are concerned with teachers employed for teaching girl students, the teacher by his character and conduct must exhibit and justify the status so given to him by the Indian society, especially when such a teacher is a male. In the same judgement in Avinash Nagra (supra), the Supreme Court has observed thus:
12. It is axiomatic that percentage of education among girls, even after independence, is fathom deep due to indifference on the part of all in rural India except some educated people. Education to the girl children is nation's asset and foundation for fertile human resources and disciplined family management, apart from their equal participation in socio-economic and political democracy. Only of late, some middle-class people are sending the girl children to co-educational institutions under the care of proper management and to look after the welfare and safety of the girls. Therefore, greater responsibility is thrust on the management of the schools and colleges to protect the young children, in particular, the growing up girls, to bring them up in disciplined and dedicated pursuit of excellence. The teacher who has been kept in charge, bears more added higher responsibility and should be more exemplary. His/her character and conduct should be more like Rishi and as loco parentis and such is the duty, responsibility and charge expected of a teacher.
43. We are constrained, in view of the aforesaid aspects of the matter, to observe that the charges proved against the petitioner are very serious in nature and do not befit 'a teacher'. The observations of the Supreme court made in paragraph 10 of the decision in Manager, Nirmala Senior Secondary School (supra) set out hereunder should not be overlooked:
10. The allegations made against respondent Khan are no doubt of a very serious nature and certainly if proved, do not befit a teacher. The clay-like minds of young children are shaped into beautiful moulds by teachers. They shape the future course of the students. To a great measure their behaviour, character, reputation leave imprints in the minds of the young children. If their conduct, behaviour and reputation is full of blemish that would not be in the interest and for the welfare of the students.
44. The allegations proved against the petitioner, to say the least, are of such a nature that they are unbecoming of a teacher. We find that there can be nothing more shameful and objectionable for a teacher employed to teach girl students. Not only at the threshold of this judgement but also in the aforesaid various paragraphs we have noted `the status and dignity of a teacher'. We have also noted hereinabove the conclusive findings of facts recorded by the Inquiry Officer, accepted by the management and confirmed by the appellate Tribunal, that are binding on us. In the circumstances, nobody can have any doubt that the behaviour of the petitioner as proved in the context of expected conduct and character of the teacher amounts to `misbehaviour, derogatory to the status and dignity of a teacher'. This is exactly what explanation (b) of statute 439-D says that `Moral Turpitude' shall include. Of course, we need not emphasise that the explanation to statute 439-D explains both these terms `moral turpitude' and `misconduct' by way of only an `inclusive explanation'. This explanation is not an 'exhaustive explanation' of the aforesaid two terms, viz., `Misconduct' and `Moral Turpitude'. Therefore, even the proved facts in the present case demonstrate that the petitioner is guilty, in addition to Moral Turpitude, also of Misconduct. It will not be correct to restrict the meaning of the term `Misconduct' only and only to violation of code of conduct set out in statute 439-B aforesaid. No doubt violation of code of conduct set out in statute 439-B will certainly amount to Misconduct within the meaning of the term `Misconduct' under statute 439-D, but the conduct as exhibited by the petitioner in the present case will also, in the light of the aforesaid judgements of the Supreme Court, amount to Misconduct within the meaning of the term `Misconduct' contemplated by statute 439-D of the statutes of the University of Mumbai.
45. We do not find fault with the desire of the management of an educational institution (such as the Respondents in this case) in such set of circumstances to keep the petitioner permanently out of the institution on account of his Misconduct and Moral Turpitude to maintain the purity of the educational sphere and serene atmosphere of the Respondent-institution, as observed by the Supreme Court. As the petitioner has lost confidence of the management by his repeated misconduct, we find that it would be unfair, unreasonable and inequitable to force his continuation in the respondent-institution. We share and agree with the view of the respondent that it would be detrimental to its interests to continue the petitioner with it, rather than to insulate the girl students from the immoral sexual behaviour exhibited by the petitioner. According to us, the punishment imposed on the petitioner is just, proper and that sympathy or mercy shown in such cases will be misplaced/uncalled for.
46. In the result, the petition is dismissed with no order as to costs. The rule shall stand discharged.