1. The applicant who was employed as the Vice-Principal of Kendriya Vidyalaya Sangatan (K.V.S. in short). Upper Shillong underwent a preliminary inquiry ordered by the Competent Officer on the allegation of molesting a girl student, whereafter he was terminated from service.
He has come for quashing of Annexure-A/4, order dated 10.11.2003 by which his services were terminated on allegation of moral turpitude, as well for quashing of Annexure-A/7 by which his appeal was also dismissed. Further praying to direct the respondents to reinstate him with all consequential benefits. As per the applicant, the respondents may be directed for conducting a regular inquiry against the applicant giving him reasonable opportunity to defend.
2. Before proceeding further, Article 81(b) of the Education Code (in short, the Code) of K.V.S. may be reproduced which admittedly is applicable to the applicant: 81(b) Termination of services of an employee found guilty of immoral behaviour towards students.
Where ever the Commissioner is satisfied after such a summary inquiry as he deems proper and practicable in the circumstances of the case that any member of the Kendriya Vidyalaya is prima facie guilty of moral turpitude involving sexual offence or exhibition of immoral sexual behaviour towards any student, he can terminate the services of that employee by giving him one month's or three month's pay and allowances accordingly as the guilty employee is temporary or permanent in the services of the Sangathan. In such cases procedure prescribed for holding inquiry 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 opinion that it is not expedient to hold regular inquiry on account of serious embarrassment to the student or his guardians or such other practical difficulties. The Commissioner shall record in writings the reasons under which it is not reasonably practicable to hold such inquiry and he shall keep the Chairman of the Sangathan informed of the circumstances leading to such termination of services.
3. Now, a glance over the related facts as coming out of the documents placed on the record: (i) Annexure-A/1, dated 21.07.2003 is an official memorandum issued by the Vigilance Section of K.V.S., New Delhi signed by the Commissioner of K.V.S. calling upon the applicant to submit a representation/show cause as to why his services should not be terminated under Article 81(b) of the Code, supplying him copies of charges, facts in support of the charges, statements recorded in the preliminary inquiry and the report of the preliminary inquiry. This memorandum relates to a complaint made by one Km. Sangita Nath, a student of Class X of National Open School (for short, N.O.S.).
addressed to the Chairman, VMC, K.V. against the applicant that the applicant had called her to the school on 22.01.2003 and had misbehaved with her. This also mentions that a fact finding inquiry was ordered in the matter and the Inquiry Committee had submitted its report dated 30.04.2003 wherein the Committee had held the applicant prima facia guilty of moral turpitude involving immoral sexual behaviour with girl students of N.O.S. The Commissioner thereafter recorded that having gone through the record he was of the considered opinion that the findings of the Committee were fully substantiated by materials on record because of which it was necessary to proceed against the applicant under Article 81 (b) of the Code as it was not expedient to hold a regular inquiry under CCS (CCA) Rules, 1965 as it would cause serious embarrassment to the students (girl) and could also cause a trauma to them because of their tender age. So opining, the Commissioner dispensed with the necessity of aregular inquiry for imposing major penalty as in accordance with the CCS (CCA) Rules, 1965.
(ii) Part of this annexure is the report of the Inquiry Committee which starts from running page 18.
(iii) It is also accompanied by Annexure-B/1 dated 23.01.2003 signed by the Chairman, VMC, KV., Upper Shillong addressed to the Asstt.
Commissioner, Guwahati intimating him that Ms. Sangita Nath, student of Class X had come to the main guard room and had reported that the applicant had called her to school on the alleged dated and had misbehaved with her in his office. With this letter the statement of Ms. Nath was also attached. A request was made to investigate the matter and to take action.
(iv) Annexure-A/3 is the reply submitted by the applicant to the Chairman, KVS relating to his communication (Annexure-A/1) received by the applicant. In this he has highlighted that he had been in service for more than thirty years and was 53 years old, father of marriageable sons and daughters, still he had been entangled on malafide intention and concocted grounds based on circumstantial evidence only. He also stated that no KVS student had lodged any complaint so far, but a group of four girls from NOS "who are actually not in tender age and belongs to slum area" had lodged the complaint without any eye witness. He thereafter narrated as to how he was discriminated in the matter of allotment of quarter for which he had to take shelter in his official room. Keeping his family away. He also alleged that the Chairman of KV, Upper Shillong was afraid of him as he had narrated school problems to the Commissioner, KVS, hence he wanted to get rid of him. He also admitted that he was orally entrusted with the work of NOS by the then Principal of the School and he had selected some, out of 29 students of Class X of Nos. He also requested to hold one regular inquiry.
(v) Annexure-A/4 dated 10.01.2003 is the impugned order issued by the Commissioner of KVS in which he has discussed full facts.
(vi) Annexure-A/6 is the memorandum of appeal addressed to the Vice-Chairman and Addl. Secretary, KVS, New Delhi giving almost the same grounds claiming that a group of four grown up girl students, more than 18 years of age belonging to slum area and poor in study from NOS were misused and prepared by the Wing Commander, one Mr.
Ahuja (of VMC) to manipulate charges against him.
(vii) There are some documents about constitution of VMC but those have not been referred to in course of arguments, nor the constitution of the VMC was attacked.
(viii) Annexure-A/7 dated 29.01.2004 is a detailed order of the Appellate Authority (Vice-Chairperson, KVS) confirming the findings of the Competent Authority. It was held that the applicant did not prove that the Chairman of VMS did bear a grudge against him and that the students of NOS did not belong to the Air Force Station but resided in the slum outside the station, hence there was no reason to presume that they could be influenced by the Air Force Commander and Chairman of VMC, also mentioning that no girl would stake her reputation by making false complaints against a teacher.
This is a well discussed order in which different points have been considered including the relevant points mentioned in the memorandum of appeal.
4. The moot question that was argued was whether under the garb of Article 81(b) of the Code the matter could have been disposed of after an inquiry by a Committee, instead of conducting a regular inquiry. For this, the learned Counsel for the applicant has heavily relied upon a decision of the Jharkhand High Court in W.P. (S) No. 904 of 2002.
However, the only point involved for consideration in that case was the application of the provision as contained in Sub-clause (b) of the second proviso to Clause 2 of Article 311 of the Constitution of India which permitted a Competent Authority, empowered to remove a person from service, to dispense with the requirement of holding an inquiry for the reasons to be recorded in writings, if such an authority was satisfied that the holding of such an inquiry was not reasonably practicable. The petitioner in that case also was working as a school Teacher and allegation against him was that he had indulged in an unbecoming and immoral action of writing love letters to one of his girl students and also attempted to seduce her. After a preliminary or summary inquiry the petitioner was terminated from service whereafter he took shelter of the Hon'ble High Court. Their Lordships in that case held that under the facts and circumstances of the case a regular departmental inquiry should have been held instead of disposing of the matter with the help of Sub-clause (b) of second proviso to Clause (2) of Article 311 of the Constitution of India.
5. On the other hand the respondents have relied upon a decision of the Apex Court in the case of Avinash Nagra v. Navodaya Vidyalaya Samiti and Ors. 1997(2) SLJ 42 (SC) : 1997 SCC (L&S) 565. In this judgment Their Lordships had upheld the action of the administration in terminating the services after a preliminary inquiry. The preliminary inquiry proved that at 10 p.m. the appellant had gone to the girl's hostel and procured presence of a particular girl by sending false message but when she ran away at his sight, he pursued her to the room where she locked herself inside and on intervention by her roommates, he rebuked them and took the torch from the room and went away.
The objection of the learned Counsel for the applicant was that in this decision the appellant was a temporary Government servant whose services could be dispensed with issuance of a notice or on payment in lieu thereof which was done in that case, hence that has to be distinguished from the facts of this case in which the applicant was a permanent employee. However, from a perusal of this judgment it would be clear that the observations made by Their Lordships in that case were not based on the fact that the employee was a probationer. The decision of the Apex Court in that case would apply to everyone whether holding a temporary post or a permanent one. The moot question involved was theindecent behaviour with girl students and sexual harassment meted out to them. In the case of Avinash Nagra (supra) Their Lordships had made following observations also: In our considered view, the Director has correctly taken the decision not to conduct any inquiry 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.
6. The relevant decisions have been fully discussed in an order of the Principal Bench of the Central Administrative Tribunal, by a Division Bench, in T.A. 5 of 2003, by order dated 03.10.2003 which has been relied upon the respondents. A copy of that order is at Annexure-R/1 to the written statement. That also relates to the sexual harassment of a girl student at the hands of the applicant relating to exhibition of immoral behaviour towards her. Since that is a well discussed order, we would hereinafter quote certain portions of that order: 6. On the other hand, respondents Counsel Mr. S. Rajappa denied the contentions and vehemently opposed the T.A. According to him, as per the decision of the Apex Court in Avinash Nagra v. Navodaya Vidyalaya Simiti and Ors. (1997) 2 SCC (L&S) 565 where a similar provision exists for dispensing with the inquiry, it has been held that in a case of moral turpitude when embarrassment is to be caused to a girl student, dispensing with, the inquiry does not suffer from any legal infirmity. On the same analogy referring to Article 81(b) of Education Code of K.V.S. it is contended that as per the decision in Babban Prasad Yadav's (supra) five conditions are to be satisfied which includes holding of summary inquiry, finding against the charged official of being guilty of moral turpitude, satisfaction of the Director on the basis of such inquiry that the charged officer was prima facie guilty, satisfaction of the Director that it is not expedient to hold an inquiry on account of the serious embarrassment to be caused to the student and recording of reasons in writing in support of the aforesaid.
The Principal Bench in that case quoted extensively from the judgment of the Apex Court in the case of Avinash Nagra (supra) in Para 16. The quoted portion, in order to understand the implication of such charges and a preliminary inquiry needs to be reproduced: 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 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 inquiring 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 caliber, 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 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 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. The question arises whether the conduct of the appellant is befitting with such higher responsibilities and as he by his conduct betrayed to the trust and forfeited and faith whether he would be entitled to the full-fledged inquiry 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. Inquiry is not a panacea but a nail in the coffin. It is self-inspection 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 inquiry was necessary or he can dispense with the services of the appell ant by gi vin g pay in lieu of notice. Two safeguards have been provided, namely, he should recorded reasons for his decision not to conduct an inquiry under the rules and also post with facts the formation 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 girl's 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 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 inquiry, 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 inquiry 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 hotel 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 inquiry under the rules and denial of cross-examination are legal and not vitiated by violation of the principles of natural justice.
7. In that order certain portions of the order of the Apex Court in the case of Navodaya Vidyalays Samiti and Ors. v. Babban Prasad Yadav and Anr.; decided on 02.05.2003 in S.L.P. No. 9802 of 2002 were also quoted. Those quoted portion as coming in the order of the Apex Court are reproduced below: We are of the view that the High Court erred in reversing the decision of the Tribunal, The rule quoted earlier, explicitly deals with such a situation as obtains in the present case. The rule is not under challenge. All that is required for the Court is to be satisfied that the pre-conditions to the exercise of power under the said rule are fulfilled. These preconditions are (1) holding of summary inquiry; (2) a finding in such summary inquiry that the charged employee was guilty of moral turpitude; (3) the satisfaction of the Director on the basis of such summary inquiry that the charged officer was prima facie guilty; (4) the satisfaction of the Director that it was not expedient to hold an inquiry on account of serious embarrassment to be caused to the students or his guardians or such other practical difficulties; and finally (5) the recording of reasons in writing in support of the aforesaid.
In this case, all the pre-conditions have been fulfilled. An Inquiry Committee was duly constituted. It held an inquiry and come 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 a regular inquiry, reasons which have been upheld as being valid in the decision in Avinash Nagra (supra)....
Obviously, this case needs to be decided keeping in view the orders of the Apex Court on the subject.
8. This is a case, as will appear from the inquiry report attached to Annexure-A/1, an Enquiry Committee consisted of three senior officers including Education Officer, KVS (RO), Guwahati, Principal, KV, Umroi Cantt, and a lady Teacher, namely, Smt. S. Deb, PGT (Eng.) KV, EAC-Upper Shillong was constituted. They have in their report considered the charges and the evidence of Ms. Sangita Nath and other girl students, giving a gist of their statements. As per their report, Ms. Nath had alleged that the applicant often called her over telephone for attending classes and on the day of incident the applicant had called her to collect I.D. card. When she came to his office to collect the card and when she was left alone in his office, he called her by his side, touched her and pulled her 'dopatta' at which she ran out of room and reported the matter to the security guard. The Committee noted that there was no eye witness to this incident but circumstantial evidences supported the findings of the Committee that the applicant had misbehaved with Sangita Nath. The Committee also mentioned the complaint made by one Ms. Teirna Santa R. Marak, a student of NOS claiming that Shri Mishra always wore informal dress such as 'lungi' and had told the girl to spend a night with him for which he had offered Rs. 500. However, the Committee held that this particular part of the allegation of offering Rs. 500 was not proved. This Committee also noted that the applicant had directed the security guards not to enter his room when the girl students were there.
9. Much has been stressed that there was no eye witness to the incident. Obviously, if a person calls a girl in his official chamber and misbehaves with her when she is alone with him, having instructed the guards not to enter the chamber when the girl students were there, hardly any eye witness could be produced. The learned Counsel has pointed out nothing to show as to why a young girl, staking her reputation, would make such an allegation against a male teacher. From the record it appears that immediately after the incident she had ran to the guards room and had made her complaint there.
10. Now, coming to the Annexure-A/4, the impugned order, this also mentions that Shri S.C. Mishra, the applicant had participated in the summary inquiry and he was afforded opportunity to present his case and that the inquiry team after giving him opportunity of hearing, had also recorded his statement.
11. As in Annexure-A/1, in Annexure/A/4 also the reason has been given for awarding punishment, dispensing with a regular inquiry, under Article 81(b) of the Code. The Commissioner recording this order has mentioned that he was of the view that it was not expedient to hold a regular inquiry under the CCS (CCA) Rules, 1965 as it would cause serious embarrassment to the girl students or their guardians, as also because of the tender age of the girl students as their safety and security had to be protected by preventing their exposure to the tardy process of cross-examination in the inquiry in relation to conduct of a teacher resulting in sexual harassment of the girl students thereby involving moral turpitude.
12. In view of the circumstances of the case and in view of the decisions discussed above coming from the Apex Court, we find that all the ingredients have been fulfilled in the case for awarding a major penalty by taking recourse to Article 81(b) of the Code, i.e., a summary inquiry was held in which the applicant was found guilty by a Committee of three responsible officers, and that the Disciplinary Authority had given grounds for his satisfaction that the charged officer was prima facie guilty and also had stated reasons as to why it was not expedient to hold a regular inquiry. The Commissioner who has recorded order at Annexure-A/4 has given his reasons in writing for the aforesaid decision.
In the facts and circumstances of the case, already discussed, the impugned order is unassailable.
13. Therefore, in view of such circumstances, we do not find that this application can be allowed.