CIVIL WRIT JURISDICTION CASE No.14689 of 2009 (In the matter of an application under Articles 226 & 227of the Constitution of India) 1. THE COMMISSIONER,KENDRIYA VIDYALAYA SANGATHA, NEW DELHI – 110016 2. The Vice-Chairman, Kendriya Vidyalaya Sangathan, New Delhi -110016 3. The Assistant Commissioner, Kendriya Vidyalaya Sangathan, Guwahati, Assam 4. Mrs. M Baruah, the then Incharge Principal, Kendriya Vidyalaya, Missa Cantt. Nagaon, Assam 5. The Principal, Kendriya Vidyalaya, Missa Cantt. Nagaon, Assam ….. Petitioners Versus 1. AJIT KUMAR, son of Late Ujgar Ram, Ex – PRT, Kendriya Vidyalaya, Missa Cantt. Nagaon, Assam, resident of Village Madrihan, PO Lihari, District Bhojpur, Bihar 2. The Union of India through Secretary, Ministry of Human Resources Development, New Delhi ……Respondents ********** For the Petitioners : Mr. Shivaji Pandey, Sr. Advocate Mr. G K Agrawal, Advocate Mr. K Ravish, Advocate For the Respondents : Mr. M P Dixit, Advocate ************ P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL S K Katriar, J. The petitioners challenge the correctness of the order dated 9.7.2009 (Annexure-1), passed by the Central Administrative Tribunal, Patna Bench, in OA No.389 of 2003 (Ajit Kumar v Union of India & Ors.), whereby the order of termination of service of respondent no.1 herein (the original applicant), by following the summary procedure, because it is reasonably not expedient and practicable to hold an enquiry, has been set aside. The authorities have taken the action in terms of Article 81(B), Chapter VIII, of the Education Code for Kendriya Vidyalaya (hereinafter referred to as `the Code‟). We shall go by the description of the parties occurring in the present proceeding. 2 2. A brief statement of facts essential for the disposal of the writ petition may be indicated. The Government of India has set up a net- work of schools, known as Kendriya Vidyalaya, throughout the country, inter alia, for the benefit of the government employees on transferable posts. Respondent no.1 was appointed as a primary teacher in Kendriya Vidyalaya, Misa Cantonment, Nagaon, Assam, on 21.8.97. Boys as well as girls are admitted in this school to receive education. Seven male students one after the other complained against respondent no.1 to the Principal of the school, of sexual harassment and exhibiting homosexual tendencies towards them. First such complaint was received in July 1999. The Principal of the school administered oral warning on respondent no.1, notwithstanding which he did not improve, and was followed by more complaints against him in August 1999. Consequently the lady Principal of the school constituted an Enquiry Committee of four members of the teaching faculty of the school including herself. The Committee conducted a preliminary enquiry, wherein the statements of the complainants as well as respondent no.1 were recorded. The Committee submitted its report dated 5.8.1999 (Annexure -7). Services of respondent no.1 were terminated in terms of Article 81(B) of the Code by following the summary procedure and in view of the position that it is not expedient to hold a detailed enquiry as it will cause serious embarrassment to the students. Respondent no.1 submitted his memo of appeal on 27.4.2000 (Annexure-5). The appeal was dismissed by order dated 8.11.2002 (annexure-3), leading to the present OA No.389 of 2003, which has been allowed by order dated 9.7.2009, the order of dismissal from service has been set aside with consequential reliefs. Hence this writ petition at the instance of the authorities. 3 3. While assailing the correctness of the order of the learned Tribunal, learned counsel for the petitioners submits that Article 81(B) of the Code confers adequately canalized and guided powers on the authorities to dispense with the services of the employees. He next submits that, in view of the peculiar facts and circumstances of the present case, it was inexpedient and reasonably not practicable to hold a detailed enquiry. It could in the present case be done at a grave risk of the reputation of boys and girls, to their acute embarrassment and massive psychological impact. He relies on the following reported judgments:- (i) [(1997) 2 SCC 534] Avinash Nagra v. Navodaya Vidyalaya Samiti (ii) [(2004) 13 SCC 568] Director, Navodaya Vidyalaya Samiti Vs Babban Prasad Yadav (iii) [ 2007(4) BBCJ 64] Suresh Chandra Misra vs. Union of India & Ors. (iv) AIR 1972 SC 1343 Air India Corpn. Vs. V A Rebello (v) [2001 (2) PLJR 717] Sitaram Paswan vs. State of Bihar (vi) Unreported decision dated 15.2.2007, passed by a Division Bench of this Court in CWJC No.11422 of 2005 (Sunil Kumar Mishra v. Union of India & Ors.) 4. Learned counsel for respondent no.1 has supported the order of the learned Tribunal. He submits that such a vast repository of power has to be exercised reasonably, with great circumspection, and sparingly. He submits that action of the authorities is in violation of Article 81(B) of the Code. The Committee has not recorded reasons/justification for the summary procedure, and the Chairman was never informed of the same. He lays particular emphasis on the note appended to Article 81(B). He relies on the judgment of the Supreme Court in the case of Tarsem Singh vs. State of Punjab [(2008) 2 SCC (L&S) 140]. He next submits 4 that the Courts have always carefully scrutinized the action of the authorities which deprives the employee of his basic source of livelihood. He lastly submits that the action of the authorities was actuated by Mala Fides, inasmuch as S N Goswami and C R Ligira, two teachers in the school and members of the Enquiry Committee, had developed ill-will towards respondent no.1, an aspect of the matter was duly considered by the learned Tribunal. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. We are mindful of the position that the impugned action of the authorities has resulted in order of dismissal of respondent no.1 from service. We have also no doubt that the Kendriya Vidyalaya is `State‟ within the meaning of Article 12 of the Constitution of India and is, therefore, subject to the rigors of the Constitution. Law is well settled that services of an employee with status can be dispensed with after following the detailed proceeding. However, service can be terminated in a summary manner, without following the detailed procedure, under certain circumstances. Article 311 of the Constitution of India is the guiding provision of law in this connection. The second proviso to Article 311 reads as follows:- “(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of these charges : Provided further that this clause shall not apply – (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry, or 5 © where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.” Clause (b) of the three exceptions is particularly relevant in the present context and should be our guide. 6. The conduct, behaviour, and the terms and conditions of service of the employees of Kendriya Vidyalays in India, are governed by the Code. Chapter VIII of the same is headed `DISCIPLINE‟. Article 81(B) of the same is relevant in the present context whereunder the impugned action has been taken, and is reproduced hereinbelow:- (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 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 one month‟s or three month‟s pay and allowances accordingly 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 be 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 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. Note: Wherever and as far as possible, a summary inquiry in the complaint of immoral behaviour by a 6 teacher towards the students of Kendriya Vidyalayas may be got investigated by the Complaints Redressal Committees constituted in the Regional Offices. Though couched in a little different language, but the same is in substance akin to clause (b) to the second proviso to Article 311 of the Constitution set out hereinabove. In other words, Article 81(B) of the Code permits termination of the service of an employee of Kendriya Vidyalaya for immoral behaviour towards students in a summary manner subject to the conditions prescribed therein. It lays down that the Commissioner should be satisfied after a summary inquiry about the immoral behaviour of the employee towards students that he is prima- facie guilty of immoral turpitude involving sexual offence or exhibition of immoral sexual behaviour towards any student. The authorities have to give one month‟s notice or three months‟ pay and allowances in lieu thereof. The Commissioner must be of the opinion that it is not expedient to hold a regular enquiry which is likely to cause embarrassment to students or his guardians or such other practical difficulties to be recorded in writing. The summary enquiry has to be recorded by a Committee constituted in the Regional Office. It is thus evident that there is adequate provision in the Code to terminate the services of an employee for immoral behaviour towards students after dispensing with the detailed procedure. The question for consideration in the present case is whether or not, in the facts and circumstances of the present case, exercise of summary power is justified. 7. We would be well-advised to reproduce hereinbelow the entire text of the enquiry report:- “ENQUIRY COMMITTEE REPORT ON THE COMPLAINTS AGAINST MR. AJIT KUMAR P.R.T. K.V. MISA CANTT. Dated 5th August, 1999 7 On receipt of verbal complaints from a few parents and written statements from some students (attached herewith) of class VI against abuse of children by Mr. Ajit Kumar, PRT of this Vidyalaya, an enquiry committee was instituted consisting of the following members:- 1) Mrs. M Baruah, Principal i/c 2) Mr. S N Goswami, Sr. PRT 3) Mr. C R Ligara – do – 4) Mrs. P Banerjee,Music Teacher (Class Teacher VI) The Committee in the Principal‟s office, called the students of class VI, who complained and received their statements both verbally and in writing. The major allegations against Mr. Ajit Kumar were as follows:- i) That, Mr. Ajit Kumar slowly penetrated his hands into the pockets of the students and holds their secret part of the body tightly until they shout with pain. ii) That, Mr. Ajit Kumar asks the meaning of some Assamese words cky uksuw dsyk which are purely sex instigating in Assamese. iii) That, Ajit Kumar asks students who is the [kwclwjr girl in their class. iv) That, Ajit Kumar says that rqEgkjh cky rks vHkh vkbZ ugha by keeping hands in the main part of the students. v) That, he calls the students one by one and shows the above behaviour, sending the other students back to class. He also does such action outside the class room. The members of the Committee also enquired of the alleged physical punishment to students. After the boys‟ departure, the members called Mr. Ajit Kumar and put before him the above mentioned allegations against him. Mr. Kumar accepted the allegations against him. Mr. Kumar accepted the allegations but made efforts to clarify by saying that i) He keeps hands in the pockets of the students to check and take out the stickers from the pockets/and letters to girls. ii) That his hand might go unconsciously and unintentionally to the secret part of the boys, for which he is regretted. iii) That he asks the students the meaning of Assamese words, mentioned above just to know. While the members asked him as to why he had asked the students instead of his colleague-teachers, he confessed his mistake. In regard to the physical punishment to students, while the committee members enquired, he confessed his mistakes and assured the members of the Committee that he would not repeat the same in future. Mr. Ajit Kumar was warned by the members and to note for future guidance. Mr. Kumar begged pardon and assured so. Lastly, the Committee decided to forward the matter to the higher authority as a first occurrence with warning to accused. 8 -illegible -illegible - illegible -illegible (Mrs.M Baruah) (S N Goswami) ( C R Ligira) (Mrs. P Banerjee) I have come to know the allegations brought against me as detailed in this report. While I confess them, I assure that such unintentional and unconscious happenings will not be repeated by me in future. I regret for such occurrence and beg apology for above mentioned ill conducts.” Dated : 5.8.1999 ( Ajit Kumar ) PRT, K.V. Misa Cantt.” It is thus evident that the Committee had examined the complainants, who were boys ranging between the ages of 11 years to 14 years, and were students of Class V to VIII, as well as respondent no.1. We have not the slightest manner of doubt that respondent no.1 was prima-facie guilty of immoral behaviour involving sexual offence and exhibition of immoral sexual behaviour towards students. We can quite visualize the traumatic experience which the action of respondent no.1 must have caused to the young ones. A detailed enquiry would have brought out their names in the open, would have appeared in the judgments of courts which must have followed as has happened in the present case, bringing about personal stigma and utter harassment to them and their family members so long they were alive. Another very noticeable feature of the allegation prima-facie found to be correct was that respondent no.1 had asked the students the names of „[kwclwjr girls‟ in their class. A detailed enquiry had the ominous prospect of giving publicity to the names of girls. It is remarkably evident from the enquiry report that respondent no.1 admitted the allegations and made a specious attempt to explain away the same. This has to be read in the back-ground of the warning administered to him in July 1999, notwithstanding which he did not improve leading to further complaints from the boys. 9 8. We are thus convinced that the learned disciplinary authority rightly took the decision to terminate the services of respondent no.1 after following the summary procedure. We are equally convinced that they took the precaution in terms Art. 81(B) to hold a preliminary enquiry and satisfied themselves prima-facie about the immoral behaviour of respondent no.1. This was fully considered by the learned appellate authority and has been rightly upheld. We are more than convinced that the authorities took the only appropriate action available to them in law after taking due care to satisfy themselves about the culpability of respondent no.1. Any action short of termination of service of respondent no.1 would have been an act of abdication of essential duties and functions. We are mindful of the position that a school imparting education to young ones are innocent of the wily ways of the world. Therefore, the greatest care and precaution has to be taken to protect them. It is for this reason, we say advisedly, that Article 81(B) has been incorporated in the Code which is exclusively meant to take care of the immoral behaviour of the employees towards students. The power has, therefore, to be exercised whenever occasion arises without any show of compassion or sympathy, lest children get on to the wrong side of life. 9. There is yet another aspect of the matter which has attracted our attention. We notice from the judgments cited before us that such cases of immoral behaviour of teachers towards students are coming up before Court regularly. The reported judgments cited before us are complete evidence of this aspect of the matter, and not in one case the Court has shown any leniency. We will have the occasion to deal with the judgments hereinbelow in detail. Out of the six judgments cited on behalf of the petitioners, four are with respect to students of such schools. Any 10 lenient treatment with such wrong-doers would be unpardonable, would be hazardous to the young ones, and would amount to abdication of essential duties and functions. 10. We would first of all deal with the decision of the Supreme Court in Avinash Nagra vs Navodaya Vidyalaya Samity (supra). The appellant before the Supreme Court was a teacher in Navodayala Vidyalaya and was warned of the sexual advances towards the girl students, but did not correct himself. The preliminary enquiry had revealed that he went to the girls‟ hostel at 10 PM, and procured the girls presence by sending a false message to her and when she ran away he pursued her to her room and on intervention of her room-mates rebuked them and went away taking with him the torch from the room. He admitted that he had gone to the girls‟ hostel but attempted to give false explanation which was unacceptable to the learned enquiry officer. In that view of the matter, his services were terminated without following the detailed procedure and was upheld by the Supreme Court. The basic factual issue in both the cases is the same, namely, sexual advances towards the students. After all, in the present case, one of the allegations found prima-facie correct was that respondent no.1 had been taking stock of beautiful girl students from the complainants. The Supreme Court had noticed a number of text books on students-teachers relationship and concluded that the Indian society has elevated teacher to the level of “Guru Brahma, Gurur Vishnu, Guru Devo Meheshwara”. The decision of the Supreme Court is almost of identical nature, and applies to the facts and circumstances of the present case in all fours. 11. The judgment of the Supreme Court in Director, Navodaya Vidyalaya Samity v Babban Prasad Yadav (supra), may also be 11 noticed. He was a teacher in Navodaya Vidyalaya and was found indulging himself in immoral conduct with a girl student by writing undesirable letters/remarks to her. On the basis of an enquiry, the Director of the institution satisfied himself that it was not expedient to hold a detailed enquiry which would cause serious embarrassment to the girl and her parents leading to the teacher‟s dismissal from service. The Tribunal repelled the challenge to the order of dismissal. The High Court reversed the decision of the Tribunal and set aside the order of dismissal from service. The High Court, however, gave an opportunity to the appellant Society to hold a regular enquiry into the charges levelled against the respondent. The Supreme Court relied on its decision in Avinash Nagra (supra), set aside the judgment of the High Court, and restored the order of dismissal. 12. A Division Bench of this Court had to consider a similar issue in the case of Sunil Kumar Mishra(supra). The writ petitioner was a trained graduate teacher in Jawahar Navodaya Vidyalaya. He was found guilty of moral turpitude involving sexual offence and exhibition of sexual immoral behaviour towards the students. His services were dispensed with after a summary inquiry. Relying on the judgment of the Supreme Court in Avinash Nagra (supra), dismissed the writ petition, and upheld the order of dismissal from service. 13. Another Division of this Court had the occasion to deal with an identical matter in the case of Suresh Chandra Misra (supra). The writ petitioner was the Principal of Kendriya Vidyalaya and was found guilty of moral turpitude involving sexual offence and exhibition of immoral behaviour towards a girl student. His services were dispensed with summarily. Relying on the judgment of the Supreme Court in the case of 12 Avinash Nagra, as well as on the judgment in the case of Sunil Kumar Mishra (supra), a Division Bench of this Court dismissed the writ petition and upheld the order of dismissal from service. 14. We have thus seen the four decisions, two of which are of the Supreme Court and the other two of this Court, where Article 81(B) or provisions in Pari Materia were invoked to dispense with the services of the school teachers for immoral conduct and behaviour towards the students. Uniformly the orders of dismissal in all the four cases have been upheld. It must be emphasized that the High Court interfered in the matter and set aside the order of dismissal in Director, Navodaya Vidyalaya Samity v. Babban Prasad Yadav (supra), but the Supreme Court restored the order of dismissal from service. The conclusion which automatically emerges from a plain reading of the four judgments is that an act of misconduct or misbehaviour by a school teacher showing sexual behaviour towards students has to be taken with utmost seriousness and strictness, and the services of such an employee should be dispensed with by following the summary procedure showing no compassion or sympathy. Teachers are in a position of trust and confidence and they are in the best position to exploit the students. Students hold their teachers in very high esteem and, therefore, the teachers are pre-eminently in the position of exploiting the students. Therefore, utmost protection has to be extended to the students and deterrent punishment has to be inflicted on such wrong-doers. Thirdly, so many reported judgments speak of growing incidence of such sexual misbehaviour towards the young ones who are in no position to defend or protect themselves. Therefore, the law has to extend the requisite protection and come down heavily on such wrong-doers. 13 15. We must also notice the judgment of the Supreme Court in Air India Corpn. v. V A Rebello [AIR 1972 SC 1343]. That was a case where the employee had to deal with the Air Hostesses in performance of his duties and the authorities were not satisfied beyond suspicision about his `general conduct‟ and behaviour while dealing with the Air Hostesses. Consequently, the authorities felt lack of confidence in him, and dispensed with his services in a summary manner, namely, in terms of Article 48 of the Air India Regulations. It was obviously a case where respectability of lady employees was in question and, therefore, the Supreme Court came to the conclusion that dismissal from service on the ground of lack of confidence in a summary manner was fully justified. Paragraph 15 of the judgment is relevant and reproduced hereinbelow:- “15. Regulation 48 which has been set out earlier as its plain language shows does not lay down or contemplate any defined essential pre-requisite for invoking its operation. Action under this Regulation can be validly taken by the employer at