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Judgment
Manish Garg, Member (J)
The applicant has filed the instant O.A. seeking the following relief(s):
“(a) Quash and set aside impugned orders dated 19-12-2007 & 16-07-2018 issued by respondent Nos.1 & 6 respectively (Annexure No.1 & Annexure No/2 respectively to this O.A. in compilation No.1).
(b) Issue the directions commanding the respondents to reinstate the applicant forthwith and to pay all the back wages and other consequential benefits applicable to applicant from his date of suspension to the date of actual reinstatement with 18% interest per annum.
(c) Issue the direction to the Respondents to pay compound interest on the arrears, compounded every month, as the respondents caused serious prejudice to the Applicant every month when the Applicant was suspended and thereafter terminated in a malafide manner by the respondents.
(d) Issue any order, which this Hon’ble Tribunal may deem fit and proper in the light of facts and circumstances of the present case.
(e) Award costs.”
Brief facts of the case are that the applicant was posted as Physical Education Teacher on 22.08.1995 at Kendriya Vidyalaya (KV) BHEL, Haridwar as a regular teacher. He was subsequently transferred to KV, ONGC Dehradun on 19.08.2000. On 13.04.2006 a joint complaint was made by 12 girl students of Class VIII-C of KV, ONGC, Dehradun to the Principal of KV against unnamed teacher. In the said complaint no person was named but it was construed to have been made against applicant and on this count only the whole case was set up by the respondents. The applicant was summoned and enquired about the said incident. He submitted that during alleged period, he was not having any period with Class VIII-C and there was no occasion for him to indulge in alleged incident. The aforesaid complaint was countersigned by 5 teachers of aforesaid school.
On the same day, i.e. 13.04.2006, 7 member committee was constituted by the Principal, KV, ONGC wherein 5 members were those teachers who were signatories of the aforesaid complaint. Applicant submitted that inclusion of 5 members, who were signatories of complaint, was against principles of natural justice. The aforesaid enquiry committee submitted its report to Principal, KV, ONGC Dehradun, who forwarded the same to Chairman Vidyalaya Management Committee on 17.04.2006. The applicant was suspended on the same day, i.e. 17.04.2006 by the Assistant Commissioner and a three member summary enquiry committee was formed to investigate the matter. The preliminary report dated 17.04.2006 only refers about oral and written complaints of the girl students but no names have been disclosed and such proceedings are not in accordance with circular dated 24.01.2002 which mandates recording of statements of some students which might have witnessed the incident. The said committee has recorded the statements of victim girl and her parents on 20.04.2006 behind the back of applicant. The applicant was given a questionnaire on 21.04.2006 but was not allowed to state anything beyond the said questionnaire.
It is submitted that based on such flawed procedure, committee has submitted its report on 21.04.2006 whereby it held that applicant has committed the misconduct. In the said summary enquiry report, it was categorically recorded that the alleged incident took place on the second period of 13.04.2006. The applicant draws reference to KVS circular dated 24.01.2002 which contemplates two stages of enquiry i.e. one at School level and another at Regional Office level. In the present case at both the stages, the date of incident was 13.04.2006 and later when incident was not getting proved, date was changed to 12.04.2006 which shows malafide on the part of the respondent. After submission of enquiry report on 21.04.2006, no action was further taken by respondents as their plan to harass the applicant failed as on the alleged date, he was not having any period with Class VIII-C as alleged in the original complaint and over such unfounded allegations, it was not possible for respondent to terminate the applicant. It is further submitted that in order to rectify the laches in conspiracy, the respondents after 258 days of complaint, i.e. more than 8 months, a letter was created whereby date of incidence as alleged in the original complaint was set to be incorrect and it was changed to 12.04.2006 as the correct date of incidence. It is further submitted that in the alleged letter by the complainants dated 26.02.2007, the signature of main victim were not same as of original complaint but due to reasons best known to respondents, the procedure required by law was completely bypassed. The same enquiry committee revised its earlier report without affording any opportunity of hearing to the applicant and gave another report dated 24.02.2007. It is pointed out that after submitting its enquiry report on 21.04.2006, the said committee was not empowered in law to rectify laches in such report and submit a report again to cause prejudice to the applicant.
In pursuance of the summary report, respondent No.1 did not send the show cause notice dated 25/30.07.2007 to the applicant along with the charge sheet and supporting documents to file reply within 15 days. The applicant vide his representation dated 11.08.2007 requested to supply the deficient documents and also requested to hold enquiry under CCS (CCA) Rules. It is also pointed out that copy of the original complaint was not supplied by the authority as a result of which the applicant could not defend himself properly while replying to show cause notice dated 25/30.07.2007. It is submitted that instead of following the procedure as laid down under the circular dated 24.01.2002, the committee adopted its own procedure and without recording statements as contemplated by the said circular relied upon the court of the preliminary enquiry which has caused prejudice to the applicant and is liable to be set aside. Thereafter, applicant was terminated vide order dated 19.12.2007 against which he filed an appeal on 03.02.2010 which was rejected by the Appellate Authority on 02.03.2010. Applicant also filed review petition before the Chairman, KVS for quashing the punishment order as well as the appellate order. The same was also rejected vide order dated 07.02.2011.
Feeling aggrieved, applicant filed OA No.331/01633/2013 before this Tribunal challenging the orders dated 19.12.2007, 02.03.2010 and 07.02.2011. The Tribunal vide its judgment/order dated 17.04.2018 partly allowed the OA by quashing the impugned orders and remanded the matter back to the Appellate Authority to consider the appeal dated 03.02.2010 afresh as per the provisions of law taking into account the grounds of appeal and reports dated 21.04.2006 and 24.02.2007 of the summary enquiry committee including the statements recorded by the committee during enquiry and pass a fresh order within three months from the date of receipt of that order. The Appellate Authority, however, without considering the findings of this Tribunal rejected the fresh appeal of the applicant vide order dated 16.07.2018 without giving any reason. Hence the present OA.
On the other hand, learned counsel for respondents by referring to the counter reply filed by the respondents vehemently opposed the averment made by the applicant. It is submitted that respondent No.2 found some procedural infirmities in the summary enquiry report due to which the report was remitted back to the respondent No.3 vide letter dated 03.01.2007 with the instruction to complete the procedural requirement at the earliest. Thereafter, a show cause notice dated 25/30.07.2007 was served upon the applicant to submit his reply. However, respondent No.1 finding the reply of the applicant unsatisfactory terminated his services vide order dated 19.12.2007. Aggrieved, applicant filed OA No.448/2008 before the Allahabad Bench which was dismissed vide order dated 14.09.2009 on the ground of alternative remedy. He preferred an appeal dated Nil before the Appellate Authority against his termination order dated 19.12.2007. In compliance of the order of Allahabad Bench of this Tribunal dated 14.09.2009 in OA No.448/2008, the Appellate Authority provided the applicant an opportunity of personal hearing on 03.02.2010 and rejected his appeal vide order dated 02.03.2010. Against order dated 02.03.2010 applicant approached the Allahabad Bench of this Tribunal at Nainital by filing OA No.331/01633/2013. The Tribunal vide order dated 17.04.2018 disposed of the OA directing the respondents to provide him an opportunity of personal hearing. In compliance thereof, the respondents after giving personal hearing to the applicant again rejected his appeal vide order dated 16.07.2018. It is submitted that on the basis of summary enquiry report and the documents on record, the Competent Authority was satisfied that the applicant is guilty of immoral behaviour and hence he was rightly inflicted the punishment of termination.
We have heard the learned counsel for the parties and gone through the pleadings on record. Vide order dated 19.10.2023, learned counsel for the parties were given liberty to file their written submissions with relied upon cases. Accordingly, learned counsel for the applicant has filed his written submissions. However, learned counsel for respondents chose not to file the written submissions. We have also gone through the written submissions filed by the learned counsel for applicant.
Analysis:
Learned counsel for applicant in his written submission basically reiterated his contention taken in the OA and has placed reliance on the decision of Hon’ble Supreme Court in Nirmala J. Jhala vs. State of Gujarat, (2013) 4 SCC 301 to contend that it is settled position of law that during the course of disciplinary proceedings the enquiry officer cannot place reliance on the statements made during preliminary enquiry. He has further placed reliance on the decision of Hon’ble Supreme Court in Anand R. Kulkarni vs. Y.P.Education Society, (2013) 6 SCC 515 to contend that charge framed against the applicant is so vague that it does not disclose any date of incident and allegations levelled are in addition to the complaints made against the unnamed teacher but strangely punishment of termination has been awarded to the applicant.
On the other hand, learned counsel for respondents has relied upon the decision of Hon’ble Supreme Court in Commissioner, KV Sangathan and others vs. Rathin Pal, SLP (C) No.4627/2008 decided on 16.08.2010 to contend that sexual harassment of girl students by a teacher is a matter of serious concern and the teachers indulging in such harassment has to be dealt with sternly so that it becomes a deterrent for others.
For appreciating the contentions urged on behalf of applicant, we draw a reference to the contents of circular dated 24.01.2002,which is reproduced herein below:-
Based on the aforesaid circular, we observe the following:
i) The true purport and object of the circular dated 24.01.2002 inter alia is to the effect that “In order to provide protection to the girl students from being sexually harassed by their teachers, the delinquent teachers are to be dealt with firmly without giving them any chance to claim the advantage due to sub-standard inquiry report.”
ii) The said circular provides a summary procedure in cases of sexual harassment where Article 81 (B) of Educational Code is evoked.
iii) The said Rule nowhere contemplates that statement of each and every student or the persons who were eye witness to the incident have to be recorded.
iv) The said circular is a clarificatory and supplementary to the Article 81 (B) wherein it is contemplated wherever in cases of sexual harassment it is not expedient to hold a regular enquiry on account of embarrassment to students or his guardian or some other practical difficulties.
On a bare perusal of Article 81 (B) of Educational Code read with Circular date 24.01.2002, it is apparent that the same is a summary procedure and not akin to procedure as contemplated in regular enquiry and hence cannot be equated to a regular enquiry procedure in normal circumstances. Article 81 (B) of Educational Code reads as under:
“81(B) TERMINATION OF SERVICE OF AN EMPLOYEE FOUND GUILTY OF IMMORAL BEHAVIOUR TOWARDS STUDENTS.
Wherever the Commissioner is satisfied after such a summary enquiry as he deems proper and practicable in the circumstances of the case that any member of the Kendriya Vidyalaya is prima facie quality 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 3 months'' pay and allowances according as the guilty employee is temporary or permanent in the service of the Sangathan. In such cases procedure prescribed for holding enquiry for imposing major penalty in accordance with CCS (CCA) Rules, 1965 as applicable to the employees of the Kendriya Vidyalaya Sangathan, shall be dispensed with, provided that the Commissioner is of the opinion that it is not expedient to hold regular enquiry on account of serious embarrassment to the student or his guardians or such other practical difficulties. The Commissioner shall record in writing the reasons under which it is not reasonably practicable to hold such enquiry and he shall keep the Chairman of the Sangathan informed of the circumstances leading to such termination of services.”
As already noted above, the procedure and the circumstances to evocation of Article 81 (B) are quite explicit and clear, therefore, it cannot be said that the preliminary enquiry is bad, as the procedure adhered to in the circular has not been adopted. The said circular cannot be strictly construed and as such, by not recording the statement of some or the other girl students, who might have witnessed the incident, is uncalled for and as such the preliminary enquiry cannot be said to be bad for want of non-compliance of principle of natural justice to say that termination is null and void. We may also note that in the matter of sexual harassment, more particularly, when no malafide has been attributed and the circumstances under which the incident has occurred, not only vitiate the atmosphere of the school but also recording of statement of each and every girl students, their parents or any other person, is uncalled for and would be too remote. We can also not ignore that this is the second round of litigation. Sufficient opportunity has been accorded to the applicant and the contentions raised by him are liable to be rejected. Further, we would highlight that in the case of Rathin Pal (supra), it is held as under:
“We have heard learned counsel for the parties and perused the record of the appeal. We have also gone through the file containing the papers relating to inquiries, which was produced by learned counsel for the appellants. The file was also made available to the learned counsel for respondents for his perusal. It is not in dispute that in both the inquiries, one of which was conducted by a team of 9 teachers and the other by a two-Member Committee, the girls, who made the complaints stood by the allegations made in the complaints and vividly described the manner in which the respondent had sexually assaulted them. In the second inquiry, the parent of the girls also repeated the allegation. Two of them also stated that they were threatened by respondent with dire consequences. Respondent did make an attempt to project himself as victim of some conspiracy but he could not produce any tangible evidence either before the Inquiry Committee or the Appellate authority. Even before the Tribunal, he could not substantiate the charge that he was being framed up for extraneous reasons. Appellant No.1 scrutinized the statements of the girl students and their parents and felt convinced that it would not be reasonable and practicable to conduct an inquiry under the 1965 Rules because the same would cause serious embarrassment to the girls, who were age 11 to 12 years and their parents and would also vitiate the atmosphere of the school. Therefore, it is not possible to find any fault with the decision taken by appellant No.1 to dispense with the regular inquiry and invoke Article 81 (b) of the Education Code. In its order dated 3.4.2003, the Tribunal recorded cogent reasons for negating the respondents challenge to the termination of his service, but the High Court upset that order as also the one passed by appellant No.1 without even adverting to the reasons recorded by him for dispensing with the inquiry.
The High Court’s observation that appellant No. 1 had not recorded his satisfaction on the desirability of dispensing with the regular inquiry is clearly erroneous. A reading of the order extracted in the earlier part of his judgment shows that appellant No.2 had independently analyzed the statements of the girl students and their parents and came to the conclusion that it was not expedient to conduct regular inquiry because that would embarrass the girl students and their parents and would also vitiate atmosphere of the school. The reasons assigned by appellant No.1 cannot, by any stretch of imagination, be treated as extraneous or irrelevant to the exercise of power under Article 81(b) of the Education Code.
As a sequel to the above discussion, we hold that the High Court committed serious error by quashing/setting aside the order of punishment passed by appellant No.1 and the one passed by the Tribunal dismissing the application filed by respondent.
In the result, the appeal is allowed. The impugned order of the Division Bench of the High Court is set aside and the one passed by the Tribunal dismissing the O.A. of respondent is restored. However, it is made clear that if any amount is payable to the respondent in accordance with the relevant rules, then such amount shall be paid to him within two months.”
In view of the above, the OA is dismissed.
There shall be no order as to costs.