M.Y. Eqbal, J.
1. In this application under Article 226 of the Constitution of India the petitioner Kendriya Vidyalaya Sangathan prayed for issuance of a writ in the nature of certiorari for quashing the order dated 19.9.2006 passed by the Central Administrative Tribunal, Patna Bench, in O.A. No. 34/2006 whereby the tribunal remitted back the matter to the appellate authority for reconsideration.
2. The petitioner Kendriya Vidyalya Santaghan is a registered Society fully financed by the Government of India to meet the educational needs of the children of transferable Central Government employees including defence personnel and to run the school. One of such school is running at Chakradharpur. On 1.2.2003 one complaint was made by Sri Rajesh Sarangi, local guardian of Kumari Varsha Tripathi, a student of class VIII in the said school at Chakradharpur, to the Principal about the misbehaviour with his ward by the respondent Muni Lal Prasad and demanded action against him. In the complaint it was alleged that on the sports day the respondent, who is a physical teacher in the school, called Kumari Varsha Tripathi in sports room alone and molested her and thereafter threatened her not to disclose the incident to any body. On receipt of the complaint, which was serious in nature, an enquiry committee was constituted by the Assistant Commissioner, vide order dated 22.2.2003. The committee comprised of Mrs. Sangita Roy, Principal Kendriya Vidyalya No. 2, Kharagpur and Sri A.B. Sinha, Principal Kekndriya Vidyalya, Tatanagar. The committee conducted a summary enquiry and found the respondent guilty of moral turpitude involving exhibition of immoral sexual behaviour towards Kumari Varsha Tripathi by calling her in sports room alone. The committee also found the resplendent involving in making indecent and unparliamentary language. In that summary enquiry the respondent was noticed and in response to the notice he submitted representation. On submission of report the commissioner perused the report of the enquiry committee and considered all the materials available on record. The commissioner also considered the complaints of the victim girl, the guardian and other students of class X and XI, whose statements were recorded during the summary enquiry. On consideration of all the materials, the commissioner found the respondent guilty of moral turpitude involving exhibition of immoral sexual behaviour towards girl students by calling her in sports room. On the sports day he put his hand inside the shirt of the girl and molested her and thereafter threatened her not to disclose the incident to any body. The commissioner, therefore, in exercise of power conferred upon him under Article 81 (B) of the Education Code for Kendriya Vidyalya, terminated the services of the respondent with immediate effect.
3. Aggrieved by the said order of termination, the respondent preferred appeal before the Vice Chairman cum Additional Secretary being the appellate authority. The appellate authority, after considering the appeal and going through the report, came to the conclusion that the finding recorded in the report of the enquiry was substantiated by the materials available on record. Accordingly, the appellate authority held that the order of termination of service of the respondent passed by the commissioner was justified. The respondent thereafter challenged the impugned order before the Central Administrative Tribunal, Patna being O.A. No. 34/2006. It was argued before the Tribunal from the side of the respondent that a detailed representation was filed before the Commissioner but the order was passed without application of mind. The appellate authority has not properly considered the ground raised in the memo of appeal. It was also argued that both the commissioner and the appellate authority have not considered the fact that the complainant Rajesh Sarangi subsequently submitted application withdrawing his complaint and the allegations made against the respondent. The tribunal, after referring few decisions and Article 81(B) of the Kendriya Vidyalya Sangathan Code, held that the appellate authority has not examined as to whether the disciplinary authority has considered the questions raised by the respondent i.e. the complaint made by victim girl student was not shown to the respondent, the guardian Rajesh Sarangi has subsequently withdrawn the complaint etc.
4. We have heard Mr. Ajay Kumar Trivedi, learned senior counsel for the petitioner and Mr. Birendra Kumar, learned Counsel for the respondent.
5. As noticed above, the respondent Muni Lal Prasad, was a physical education teacher in the school. Admittedly a complaint was made by Rajesh Sarangi, guardian of Varsha Tripathi, a student of class VIII in the school, alleging misbehaviour and using abusive language against the girl. It was alleged that on the sports day the respondent called the girl alone in the sports room and molested her and threatened her with dire consequences. On receipt of the complaint the authority proceeded to hold a summary enquiry as contemplated under Article 81 of the Kendriya Vidyalya Sangathan Code (KVS Code). Before proceeding further, I would like to quote Article 81 (A) and 81(B) of the Code, which reads as under:
Article 81(A) Termination of Services in Certain Cases- Special Procedure An exception to the rules mentioned in the preceding Article shall, however, be made in the following types of cases;
(i) In the case of an employee who is known to be of doubtful integrity or conduct, but where it is difficult to bring forth sufficient documentary or other evidence to establish the charge, and whose retention in the Vidyalaya, etc. will be prejudicial to the interests of the institution.
(ii) In the case of an employee suspected of grave misconduct, where the initiation of regular proceedings against him in accordance with the provisions of the CCS (CCA) Rules, 1965, is likely to result in embarrassment to class of employees and/or is likely to endanger the reputation of the institution. In cases of the above type, the Appointing Authority may record the reasons for termination of the services of the employee under the terms of appointment without assigning any reason. Where the Appointing Authority is the Principal, action to terminate the services of an employee under the terms of appointment shall be taken only after obtaining the prior approval of the Assistant Commissioner. Article 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 cases 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 and 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 of 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 Kendriya Vidyalayas may be got investigated by the Complaints Redressal Committee constituted Regional Offices.
6. As noticed above, an enquiry committee was constituted by the Assistant Commissioner, Bhubneshwar comprising of a lady Principal of Kendriya Vidyalya, Kharagpur and one principal of Kendriya Vidyalya, Tatanagar. The committee held a summary enquiry by calling explanation from the respondent and examining the victim girl, the complainant and 27 other students. The respondent participated in the summary enquiry and was afforded opportunity to present his case and his statement was also recorded by the committee. The enquiry committee, after considering all the materials, came to a finding that the respondent was found guilty of moral turpitude. The commissioner, before passing order of punishment, has re-appreciated the entire evidence collected during enquiry and recorded his satisfaction that holding a regular enquiry under CCS (CCA) Rules, 1965 would cause serious embarrassment to the girl student and her guardian and was not expedient because of the tender age of the girl. The commissioner, therefore, dispensed with holding of regular enquiry and in excising power conferred upon him under Article 81(B) passed the impugned order of punishment. The appellate authority, in appeal by the respondent, considered all the points raised by the respondent, recorded a finding that the impugned order of punishment passed by the commissioner is fully justified and in accordance with law.
7. The question, therefore, that falls for consideration is as to whether the tribunal was justified in remanding back the matter to the appellate authority for reconsideration of the points raised by the respondent. Before answering the question, I would like to refer few decisions of the Supreme Court where similar point has been dealt with.
8. In the case of Avinash Nagra v. Navodaya Vidyalaya Samiti and Ors. : (1997)IILLJ640SC , the fact was that the appellant was a teacher in Navodaya Vidyalya Samiti. His service was terminated on the ground of his improper conduct with a girl student. When the order was challenged in the High Court, a direction for holding an enquiry was issued and in pursuance thereto the management conducted an enquiry after issuance show cause notice and submitted a report with finding that the appellant was guilty of moral turpitude involving exhibition of immoral sexual behaviour towards a girl student. A question was raised before the Supreme Court that the order of dismissal is vitiated in law for want of full-fledged enquiry and opportunity to cross examine the girl student, who gave statement against the appellant. The Supreme Court held in para 11 and 12 of the judgment as under:
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. The State has taken care of service conditions of the teacher and he owes dual fundamental duties to himself and to the society. As a member of the noble teaching profession and a citizen of India he should always be willing, self-disciplined, dedicated with integrity to remain ever a learner of knowledge, intelligently to articulate and communicate and imbibe in his students, as social duty, to impart education, to bring them up with discipline, inculcate to abjure violence and to develop scientific temper with a spirit of enquiry and reform constantly to rise to higher levels in any walk of life nurturing constitutional ideals enshrined in Article 51-A so as to make the students responsible citizens of the country. Thus the teacher either individually or collectively as a community of teachers, should regenerate this dedication with a bent of spiritualism in broader perspective of the constitutionalism with secular ideologies enshrined in the Constitution as an arm of the State to establish egalitarian social order under the rule of law. Therefore, when the society has given such a pedestal, the conduct, character, ability and disposition of a teacher should be to transform the student into a disciplined citizen, inquisitive to learn, intellectual to pursue in any walk of life with dedication, discipline and devotion with an enquiring mind but not with blind customary beliefs. The education that is imparted by the teacher determines the level of the student for the development, prosperity and welfare of the society. The quality, competence and character of the teacher are, therefore, most significant to mould the calibre, character and capacity of the students for successful working of democratic institutions and to sustain them in their later years of life as a responsible citizen in different responsibilities. Without a dedicated and disciplined teacher, even the best education system is bound to fail. It is, therefore, the duty of the teacher to take such care of the pupils as a careful parent would take of its children and the ordinary principle of vicarious liability would apply where negligence is that of a teacher. The age of the pupil and the nature of the activity in which he takes part are material factors determining the degree and supervision demanded by a teacher.
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 socioeconomic and political democracy. Only of late, some middleclass 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. The question arises whether the conduct of the appellant is befitting with such higher responsibilities and as he by his conduct betrayed the trust and forfeited the faith whether he would be entitled to the full-fledged enquiry as demanded by him? The fallen standard of the appellant is the tip of the iceberg in the discipline of teaching, a noble and learned profession; it is for each teacher and collectively their body to stem the rot to sustain the faith of the society reposed in them. Enquiry is not a panacea but a nail in the coffin. It is selfinspection and correction that is supreme. It is seen that the rules wisely devised have given the power to the Director, the highest authority in the management of the institution to take decision, based on the fact-situation, whether a summary enquiry was necessary or he can dispense with the services of the appellant by giving pay in lieu of notice. Two safeguards have been provided, namely, he should record reasons for his decision not to conduct an enquiry under the rules and also post with facts the information with Minister, Human Resources Department, Government of India in that behalf. It is seen from the record that the appellant was given a warning for his sexual advances towards a girl student but he did not correct himself and mend his conduct. He went to the girls' hostel at 10 p.m. in the night and asked the hostel helper, Bharat Singh to misguide the girl by telling her that Bio- Chemistry Madam was calling her; believing the statement, she came out of the hostel. It is the admitted position that she was an active participant in cultural activities. Taking advantage thereof, he misused his position and made sexual advances towards her. When she ran away from his presence, he pursued her to the room where she locked herself inside; he banged the door. When he was informed by her roommates that she was asleep, he rebuked them and took the torch from the room and went away. He admitted his going there and admitted his meeting with the girl but he had given a false explanation which was not found acceptable to the Enquiry Officer, namely, Asstt. Director. After conducting the enquiry, he submitted the report to the Director and the Director examined the report and found him not worthy to be a teacher in the institution. Under those circumstances, the question arises whether the girl and her roommates should be exposed to the cross-examination and harassment and further publicity? In our considered view, the Director has correctly taken the decision not to conduct any enquiry exposing the students and modesty of the girl and to terminate the services of the appellant by giving one month's salary and allowances in lieu of notice as he is a temporary employee under probation. In the circumstances, it is very hazardous to expose the young girls to tardy process of cross-examination. Their statements were supplied to the appellant and he was given an opportunity to controvert the correctness thereof. In view of his admission that he went to the room in the night, though he shifted the timings from 10 p.m. to 8 p.m. which was not found acceptable to the respondents and that he took the torch from the room, do indicate that he went to the room. The misguiding statement sent through Bharat Singh, the hostel peon, was corroborated by the statements of the students; but for the misstatement, obviously the girl would not have gone out from the room. Under those circumstances, the conduct of the appellant is unbecoming of a teacher much less a loco parentis and, therefore, dispensing with regular enquiry under the rules and denial of cross-examination are legal and not vitiated by violation of the principles of natural justice.
9. A similar question arose with regard to dispensing with the enquiry in the case of Director Navodaya Vidyalya Samiti and Ors. v. Babban Prasad Yadav and Anr. (2004) 13 SCC 568. The Supreme Court, after considering the earlier decision in Avinash Nagra's case (supra) observed:
8. In this case, all the preconditions have been fulfilled. An Enquiry Committee was duly constituted. It held an enquiry and came to the conclusion that the respondent was guilty of the offence with which he was charged, namely, writing love letters to the student in question. The Director has recorded the reasons for dispensing with regular enquiry, reasons which have been upheld as being valid in the decision in Avinash Nagra wherein this Court has held: (SCC pp. 537 & 542, paras 6 & 12)
With a view to ensure safety and security to the girl students, to protect their modesty and prevent their unnecessary exposure at an enquiry in relation to the conduct of a teacher resulting in sexual harassment of the girl student, etc. involving misconduct or moral turpitude, resolution prescribing special summary procedure was proposed and published by notification dated 23-12-1993, after due approval of the Executives of the respondent Samiti. The Minister of Human Resources and Development, Government of India is its Chairman.
* * *It is seen that the rules wisely devised have given the power to the Director, the highest authority in the management of the institution to take decision, based on the fact situation, whether a summary enquiry was necessary or he can dispense with the services of the appellant by giving pay in lieu of notice. Two safeguards have been provided, namely, he should record reasons for his decision not to conduct an enquiry under the rules and also post with facts the information to Minister, Human Resources Department, Government of India in that behalf.
9. It is true that the Court in Avinash Nagra has made the following observations: (SCC p. 543, para 12)
In our considered view, the Director has correctly taken the decision not to conduct any enquiry exposing the students and modesty of the girl and to terminate the services of the appellant by giving one month's salary and allowances in lieu of notice as he is a temporary employee under probation. However, the Court goes on to say: (SCC p. 543, para 12)
In the circumstances, it is very hazardous to expose the young girls to tardy process of cross-examination.10. The last observation was not based on the fact that the employee in that case was a probationer at all. Indeed the embarrassment to the girl student would hardly be different merely because the alleged offender is a permanent employee. Besides, under Article 311(2) itself an enquiry may be dispensed with under certain circumstances. We have no doubt that those circumstances may include a situation as indicated in the rule of the institution as mentioned hereinbefore.
11. The High Court particularly erred in requiring that such a charge needed to be proved beyond all reasonable doubt. This is against the principles governing a departmental enquiry in general and the unchallenged rules of the appellant institution in particular. The reason sought to be given by the Director for dispensing with the enquiry has been held by the High Court to be 'unconstitutional and not legal'. This finding is also unacceptable since the Director has used the language of the rule. Furthermore, having regard to the approval of the rule in question in the decision of Avinash Nagra it was not open to the High Court to have come to the conclusion that the reason given by the Director for dispensing with the enquiry was unconstitutional or illegal.
10. As noticed above, Article 81(B) of the Kendriya Vidyalya Sangathan Code confers power upon the Commissioner to dispense with regular enquiry as contemplated under CCS (CCA) Rules, 1965 if the Commissioner is satisfied that holding regular enquiry will lead to serious embarrassment to a girl student who is subjected to immoral sexual behaviour. In the instant case, the Commissioner recorded reasons in writing that it is not reasonably practical to hold such enquiry. In my opinion also, in such a case where there is complaint of immoral behaviour by a teacher towards a girl student of the school need not be inquired into by a regular enquiry, save and except in exceptional cases. We have also no hesitation in holding that the Authorities have taken a correct decision not to conduct a regular enquiry exposing the modesty of a girl student.
11. From perusal of the impugned order passed by the Tribunal, we are of the view that the Tribunal has not considered the gravity of the complaint made against the respondent, who is none else but a teacher of the school and the allegation against him is of moral turpitude. The Tribunal also failed to notice that not only the summary enquiry committee but also the Commissioner and the Vice- Chairman being the appointing authority and the appellate authority, have given opportunity to the respondent to submit his explanation/ show cause and also to participate in the proceeding. The Tribunal, therefore, ought not to have interfered with the orders passed by the Authorities of the school. In our view, normally in the matter of the internal administration of the educational institutions with regard to discipline and conduct of the teachers and the students, the court or the tribunal should be very slow in interfering with such matters. In our considered opinion, therefore, the impugned order passed by the Tribunal cannot be sustained in law.
12. For the reasons aforesaid, this application is allowed and the impugned order passed by the Central Administrative Tribunal is set aside and the orders passed by the Commissioner and the Appellate Authority are restored.