IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 13..6..2008 Coram: The Honourable Mr.Justice P.K. MISRA and The Honourable Mr.Justice K.CHANDRU W. P. No. 38815 of 2006 and M.P. No. 1 of 2006 1. The Chairman Navodaya Vidyalaya Samiti Ministry of HRD Shastri Bhavan New Delhi 2. The Commissioner Navodaya Vidyalaya Samiti Indira Gandhi Indore Stadium I.P. Estate, New Delhi 3. Hazarika ... Petitioners -vs- 1. Dr. T. Murugesan 2. The Deputy Commissioner / District Collector Hailakandi District Assam State 3. The Additional Deputy Commissioner Hailakandi District Assam State 4. The Registrar Central Administrative Tribunal Chennai ... Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for the records of the Tribunal relating to the order dated 09.6.2005 made in O.A. No. 1027 of 2004 and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr. Rajappa Srinivas for Mr. J. Srinivasa Mohan For Respondents : Mr. Vijay Narayan, SC for M/s Karthik Mukundan, GA ORDER K. CHANDRU, J. Aggrieved by the order of the Central Administrative Tribunal (CAT) dated 09.6.2005 made in O.A. No. 1027 of 2004, the petitioners, who are the Chairman, Commissioner of the Navodaya Vidyalaya Samiti [for short, 'NVS'] functioning under the Ministry of HRD at New Delhi as well as the Deputy Director of NVS at Nongriss Hills, Shillong at Meghalaya State, have filed the present writ petition. 2. By the aforesaid order, the CAT set aside the order of termination of the first respondent dated 13.6.2003, confirmed by the order dated 31.8.2004 passed by the appellate authority, and directed reinstatement of the first respondent with all consequential benefits. 3. This Court admitted the writ petition on 11.10.2006 and also granted an interim stay on the same day. When the first respondent filed M.P. No. 2 of 2006 to vacate the stay order, this Court confirmed the stay and dismissed the vacate stay application. It directed the disposal of the main writ petition at an early date. 4. The brief facts leading to the termination are as follows:- 4.1. The first respondent was working as the Principal of the Jawahar Navodaya Vidyalaya, Hailakandi in the State of Assam under the control of the second respondent. A complaint was received that the first respondent had tried to exploit the innocence and modesty of a minor girl student studying in Class X of the said school taking advantage of the absence of her parents from the house. Incidentally, the father of the minor girl was a Driver attached to the school and they were staying in the campus itself. 4.2. The third petitioner conducted a preliminary investigation and concluded that the approach of the first respondent towards the girl student of Class X was not honourable and after a detailed examination of the report of the third petitioner, summary trial was ordered by a Committee into the allegations levelled against the first respondent. A Summary Inquiry was conducted on 27.10.2002 in the presence of the first respondent. The Inquiry Committee, after perusal of the record of the case and deposition of the first respondent made before the Committee, rendered a finding that the first respondent had made advance towards the girl student when she was alone in her residence and concluded that he was prima facie guilty of immoral behaviour. The services of the first respondent https://hcservices.ecourts.gov.in/hcservices/ were terminated by an order dated 13.6.2003 passed by the second petitioner, who is the competent authority. 5. The first respondent filed O.A. No. 860 of 2003. Though the place of work of the first respondent was Meghalaya, he gave a Chennai address and challenged the order of termination before the CAT, Chennai Bench. The said O.A. was disposed of by an order dated 01.10.2003 directing the statutory appeal filed by the first respondent to be disposed of within a time frame fixed by the CAT. The appeal dated 30.6.2003 filed by the first respondent was dismissed by an order dated 29.10.2003. Not satisfied with the disposal, the first respondent filed a Contempt Application being Cont. P. No. 4 of 2004. The said application was disposed of by an order dated 04.3.2004 holding that the appellate authority had not applied his mind and, therefore, the appellate order was set aside. He was directed to re-hear the appeal after hearing the appellant personally and with a further direction to dispose of the appeal with an independent mind. 6. The Chairman of the NVS, who is also the Minister of Human Resources Development, New Delhi, heard the first respondent personally on 05.8.2004. The first respondent also submitted a written representation on the same day. Thereafter, the Chairman of the NVS dismissed the appeal by an order dated 31.8.2004 against which, he filed O.A. No. 1027 of 2004 and challenged the original order of termination as well as the appellate order. 7. A detailed reply statement dated 14.2.2005 was filed before the CAT on behalf of the petitioners justifying the action taken against the first respondent. 8. The CAT, after hearing both sides, came to the conclusion that it was wrong for the disciplinary authority to have dispensed with the enquiry proceedings as he had not recorded reasons for not holding an enquiry on the ground that it was not reasonable and practicable and there was lack of application of mind which resulted in an arbitratry action. It was also stated that when the third petitioner / Deputy Director sent a report to the second petitioner Commissioner about the incident, he was accompanied by his wife and her statement was taken into account and such a statement has no legal value in the eye of law as that of independent person. Since her statement was taken into account for passing the orders of suspension as well as dismissal, it will vitiate the petitioners in initiating the proceedings. In that view of the matter, the CAT accepted the contentions of the first respondent and rejected the contentions of the petitioners. It finally resulted in setting aside the order of termination and the petitioners were directed to reinstate the first respondent. https://hcservices.ecourts.gov.in/hcservices/ 9. Heard the arguments of Mr. Rajappa, learned counsel representing Mr. J. Srinivasa Mohan, appearing for the petitioner and Mr. Vijay Narayan, learned Senior Counsel leading M/s Karthik Mukundan, learned counsel for the respondents and perused the records. 10. Learned counsel for the petitioners made a detailed submission stating that the findings rendered by the CAT was perverse and it did not peruse the records properly. The learned counsel submitted that the School in which the first respondent was engaged was a co-educational institution and it was the duty of the first respondent, being the Principal, to protect the safety, security and modesty of the students. By a notification dated 16.12.1993, the NVS had authorised the Commissioner to terminate the services of any employee, who was found prima facie guilty of moral turpitude involved in sexual offence or exhibition of immoral sexual behaviour towards any student after such Summary Enquiry as deemed practicable. 11. He further submitted that in a case of this nature, it was not practicable to hold a detailed enquiry in view of the sensitive nature of the issue and such action taken in the earlier circumstances has been upheld by the Courts. It was also stated that the third petitioner, who was named in his individual capacity, conducted the enquiry strictly as per the Rules and his wife was not a stranger and she was working as a Trained Graduate Teacher (TGT) (Mathematics) at the Jawahar Navodaya Vidyala, Assam. She, being a woman, was able to question the girl so as to bring out the truth and at the time when the girl and her parents came to lodge a complaint, the third petitioner had examined the girl in detail. The Director – cum – Commissioner had recorded the reasons for dispensing with the regular enquiry. The Director, being the competent authority, was satisfied that the first respondent was prima facie guilty of moral turpitude and he was also satisfied that it was not expedient to hold any enquiry as it will cause serious embarassment to the girl student and the reasons are recorded in the file which has been reflected in the order passed. Even on further appeal, the highest authority, viz., the Chairman had concurred with the action taken by the third petitioner and such action taken in the purity of administration cannot be found fault with by the exercise of limited judicial review power conferred on the CAT. 12. Per contra, Mr. Vijay Narayan, learned Senior Counsel appearing for the first respondent submitted that the enquiry conducted by the third petitioner supported by the statement of his wife, has no value in the eye of law and no termination order can be passed on the basis of such statement. Though the CAT held that there is power to dispense with the enquiry but the decision making process leading to such conclusion was held to be not rational and fair. It also held that the Deputy Commissioner / District Collector of Hailakandi District, Assam had conducted an enquiry and sent an independent report which has been brushed aside on irrelevant https://hcservices.ecourts.gov.in/hcservices/ consideration. The allegation that the first respondent had gone to the Driver's room with an intention of exploiting the modesty of the girl student (who is also the Driver's daughter) was baseless and the evidence of the Chowkidar clearly gives lie to the charges made against the first respondent. He also submitted that there is no material record to show that the first respondent misbehaved with the girl student. The finding of the appellate authority that the report sent by the Deputy Commissioner / District Collector was in the absence of recording the statement of the girl student and her parents may not be correct. The girl student and her parents did not appear before the appellate authority inspite of notices issued to them. He also stated that there was an inordinate delay in filing the writ petition. 13. At this stage, Mr. Rajappa, learned counsel appearing for the NVS intervened and stated that there are many issues which could not be put in the affidavit and there were forces at Chennai which attempted to thwart the filing of the writ petition. It was after getting the entire records, the headquarters took the decision to file the writ petition and hence, there was some delay. 14. Learned counsel appearing for the petitioners relied upon the judgment of the Supreme Court in Avinash Nagra v. Navodaya Vidyalaya Samiti and others [1997 (2) SCC 534]. In that judgment, the Supreme Court also dealt with a similar case and exhorted as to how a teacher should behave as a role model. The following passages found in paragraphs 11 and 12 may be usefully referred:- Para 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 https://hcservices.ecourts.gov.in/hcservices/ 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. Para 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 https://hcservices.ecourts.gov.in/hcservices/ 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 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 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. https://hcservices.ecourts.gov.in/hcservices/ 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." 15. He also submitted that in that judgment, the Supreme Court dealt with the power of the Director in dispensing with the enquiry. The question was framed in paragraph 6, which is extracted below, was answered in paragraph 12, which is already extracted above. Para 6: ".... In such cases, procedure prescribed for holding enquiry for imposing major penalty in accordance with the Rules as applicable to the employees of the respondent, shall be dispensed with provided that the Director 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 Director 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 Samiti informed of the circumstances leading to such termination of services. It would thus be seen that in a given situation, instead of adopting the regular procedure under the Rules to terminate the services of an employee, the notification prescribes the procedure to dispense with such enquiry, subject to https://hcservices.ecourts.gov.in/hcservices/ the conditions mentioned above. The question is whether the order terminating the services of the appellant in terms of his appointment letter is in violation of the Rules or the principles of natural justice?...." 16. Thereafter, the learned counsel relied upon the judgment of the Supreme Court in Director, Navodaya Vidyalaya Samiti and others v. Babban Prasad Yadav and another [2004 (13) SCC 568] wherein the Supreme Court referred to Avinash Nagra's case (cited supra) and approved the reasoning in paragraph 11 which reads as follows:- Para 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." 17. The learned counsel for the petitioners also referred to three unreported decisions of the Delhi High Court relating to school employees and copies of the judgments were also furnished to the learned counsel for the first respondent. 18. In Jwala Singh v. Union of India and others [W.P. (C) No. 6529 of 2005], the Delhi High Court dealt with the case of outraging modesty of a girl student studying IX Std. and after referring to the judgment in the Avinash Nagra's case (cited supra) and Babban Prasad Yadav (cited supra), the Court upheld the action taken by the NVS and in paragraphs 10, 11 and 13, the Delhi High Court dismissed the case of the Teacher and the same may be reproduced:- Para 10: "We cannot resist commending the Commissioner of Navodaya Vidyalaya Samiti for the view taken by him. He looked into the matter in the right perspective and refused to get carried away by what, for instance, had been stated by Assistant Director, Shri Waghmere and Ms. Kaneez Fatima. They had dismissed the complaint on the basis, for example, of contradictions about the place and date of the incident. The Commissioner was right in observing that the question which needed to be https://hcservices.ecourts.gov.in/hcservices/ gone into was whether the incident did take place or not and since the inquiry officers did not say that the incident had not taken place, the Commissioner rightly dispensed with the holding of regular inquiry and passing the order, terminating the services of the petitioner. Para 11: On going through the records, we are also satisfied that all the preconditions for exercising the extra- ordinary power of dispensing with the holding of a regular inquiry are satisfied in the present case. Therefore, the aforesaid decisions of the Supreme Court are applicable to the facts of this case on all fours." Para 13: "A school is not merely bricks and mortar. It is the nursery of idealism and character. The teacher is the person who nurtures the nursery and it is under him that it grows. He affects eternity. What if a teacher falls from the standard expected of him? In such a case, surgical treatment may be called for and the present is one such case." 19. Again, another Division Bench of the Delhi High court in J.P. Yadav v. Union of India and others [W.P. No. 17458 of 2004], by its judgment dated 06.12.2005, dealt with the case of a Teacher working in KVS, who exhibited his immoral behaviour towards X Std. girl and held that the summary enquiry held against the Teacher was valid. 20. Similarly, in Krishna Murari Sharma v. Union of India and others [W.P. No. 23549 of 2005], another Division Bench of the Delhi High Court vide its judgment dated 15.12.2005 upheld the action taken against a Teacher of KVS wherein under Article 81(b) of the Education Code (which is similar to the rule in NVS) was invoked for conducting a summary enquiry. 21. The learned counsel thereafter referred to another Division Bench judgment of the Delhi High Court in Kendriya Vidyalaya Sangathan & others v. Gauri Shankar [W.P. (C)