-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.2011 2006 Prof. Shashikant B. Kulkarni, Age 47 years, Occ: Teacher, Residing at: 8/23, Pratik Nagar, Paud Road, Kothrud, PUNE--411 038. : Petitioner (Orig.Appellant) V/s. 1. The Principal, BPCS College of Physical Education, Wadala, Mumbai--400 031. 2. The Secretary, Governing Body, Bombay Physical Culture Association, C/o. BPCS College of Physical Education, Wadala, Mumbai--400 031. 3. The learned Presiding Officer, University and College Tribunal Mumbai University and College Tribunal, Mumbai. : Respondents (Orig.Respondents) -: 2 :- ... Mr.A.V.Anturkar with Mr.S.B. Deshmukh for the petitioner. Mr.A.L.Gore for respondent no.1. ... CORAM : S.B.MHASE & A.A.KUMBHAKONI,JJ. Date of Reserving ) the Judgement. ) : 21.04.2008 Date of Pronouncing ) the Judgement ): 05.05.2008 JUDGEMENT (Per A.A.Kumbhakoni,J.) 1. Lord Siva in Guru Gita (Skanda Puranam) praises the Universal Guru thus: "Gurur Brahma, Gurur Vishnu Gurur Devo Maheshwara Guru Saakshaat Parabrahma Tasmai Sree Gurave Namah". (Guru is Brahma, Guru is Vishnu and Guru is the God Siva. Guru verily is the Param Brahma -- the Supreme Being. I (Siva) salute that auspicious Guru). This is the reason why we Indians bow to Guru -- a TEACHER and place a teacher on a pedestal just below the parents. The character and conduct of a teacher is expected to be more like a ‘Rishi’ and as loco-perentis. We will shortly refer to two Supreme Court judgements in this regard. 2. This occasion to remind ourselves of these expectations -: 3 :- as to "the status and dignity of a teacher" has arisen in view of this petition which is filed by a male teacher against whom such charges are held proved which allege Moral Turpitude and Misconduct by such teacher involving exhibition of immoral sexual behaviour towards girl students of the 1st respondent college. 3. The petitioner, by the present Petition, impugns the judgement and order delivered by the Presiding Officer, Mumbai University and College Tribunal, dated 3.5.2005 in Appeal no.24 of 2004 whereby the appeal filed by the petitioner has been dismissed and the order of removal of the petitioner from the service of the respondent educational institution dated 1.9.2004 has been confirmed. The case has a chequered history. Without getting entangled in the entire web of irrelevant facts, we may set out hereunder bare minimum facts required for the effective disposal of the present petition. 4. Bombay Physical Culture Association is an Association which runs a College of Physical Education. The 1st respondent herein is the principal of the College and the 2nd respondent is the Secretary of the society which runs the 1st respondent College. For the sake of brevity, both these respondents herein are hereinafter referred to as the "management". -: 4 :- 5. The petitioner joined the aforesaid College on 12.6.1989. On 6.10.1990, a complaint was filed by a girl student alleging misconduct against the petitioner for which the petitioner tendered an apology. It appears that the management condoned the misconduct of the petitioner and issued him a fresh appointment order dated 16.4.1991. Before the ink on the letter of apology and consequent fresh appointment order could dry, it appears that the petitioner continued with his misconduct in respect of girl students resulting into filing of a second complaint against the petitioner by another girl student. The petitioner again tendered an apology on 22.9.1992. It appears that the management did not pursue the matter further. 6. It is not necessary to set out the details of these two instances at length. However, it needs to be mentioned that the first incident relates to a complaint dated 6.10.1990 filed by a girl student alleging that the petitioner was in the habit of leering lecherously at the girl students and that on one occasion, the petitioner had asked the complainant girl student to accompany the petitioner to a movie or drama. It was further alleged that the petitioner told the complainant lady that it was upto him to give to her first class mark in case she -: 5 :- extended the favour sought by him. The second incident involving the petitioner’s misconduct is alleged to have taken place in September, 1993. It is alleged that at the time of teaching yoga to the girl students, the petitioner deliberately made them lie in the veranda of the college in ‘shavasan’ pose for an unreasonably long time. It is further contended that at that time, it was raining and the girl students on account of rain water were totally soaked and their clothes were clinching to their bodies. It is the case of the management that under the pretext of observing their performance, the petitioner is said to have been around them leering at their bodies and private parts from different angles. 7. Though the Tribunal by its impugned judgement has recorded findings that both the aforesaid incidents have been proved, it is also noted that the management had condoned the said misconduct of the petitioner and did not take any action against the petitioner on these counts. It is further correctly observed that it was therefore not permissible for the management to rely upon these incidents now. We find that the following observations of the College Tribunal would suffice the purpose:- -: 6 :- "21. It is necessary to clarify that although in view of condonation of the appellant’s misconduct, the Management cannot make use of the said incidents in the course of the enquiry against the appellant. However, these two incidents can be relied upon to show the past record about the behaviour of the appellant." 8. The third incident allegedly occurred during the academic year 1994-95. It is alleged that the petitioner along with other teachers and students of the College had gone for a hike to Kanheri caves. Some of the students including one Ms S. Patil were crossing a stream of water. It is alleged that while crossing the stream midway, the petitioner splashed water on lady students and particularly on the chest of this girl student and drenched her completely. It is the case of the management that the petitioner splashed water on other students as well and made them sit in the stream by physically holding them. It is further alleged that other teachers who were present there tried to plead with the petitioner not to do so, but the petitioner retorted by saying that it was none of their business. It is the case of the aforesaid girl that the petitioner pushed her -: 7 :- in water, as a result of which she got completely wet and felt ashamed. 9. On 18.2.1995 fourth incident is alleged to have occurred with another girl student by name Ms V. Naik which resulted into filing of a police complaint against the petitioner on the charge that the petitioner had outraged her modesty. On the basis of the said complaint, the police registered a case against the petitioner for an offence under section 354 of the I.P.C. and arrested him. The petitioner was, however, released on bail on the next day after he was produced before the Metropolitan Magistrate. The petitioner was acquitted in the aforesaid criminal proceedings bearing no.1293/P/95 by judgement and order of the criminal Court dated 24.1.2000. According to the petitioner, Criminal Appeal No.77/2000 filed in that behalf was also dismissed by this Court. Be that as it may. 10. Before proceeding further, we will hasten to add that the management has also alleged occurring of similar other incidents of misconduct which the Tribunal has, so to say, not considered as proved to hold the petitioner guilty of charges levelled against the petitioner. 11. The petitioner was suspended by an order dated -: 8 :- 22.2.1995. The management conducted an inquiry in regard to the misconduct of the petitioner initially on the basis of charge-sheet dated 28.3.2000, but the same never reached finality on account of appeals and Writ Petitions arising therefrom, ultimately resulting into an order passed in Appeal No.90 of 2001 by the College Tribunal on 2.9.2002 directing holding of a fresh inquiry. In pursuance of this direction, charges were again framed on 10.4.2003. In all eight charges were framed alleging misconduct within the meaning of S. 439-D(a), Explanations (a)(i) & (ii) read with S.439-B, (b), (c), (d), (f) and (h) as also read with S. 444(B)(7) of the University Statutes. One separate charge was framed under S. 439-D(b), explanation (b) alleging engagement in acts involving moral turpitude. And another separate charge was framed under S.439-D(c), explanations (c)(ii) & (iii) of the aforesaid statutes. 12. These statutes read thus:- "S. 439D. A teacher who is confirmed in service is liable to be suspended or compulsorily retired or removed/dismissed from service or his services are liable to be terminated on one or more of the following grounds:- -: 9 :- (a) Misconduct, (b) Moral turpitude, (c) Wilful and persistent negligence of duty, (d) Permanent physical or mental unfitness, and (e) Incompetence; provided that the ground of incompetence shall not be used after a teacher has served the college for a period of five years or more. Explanations: (a) "Misconduct" shall include the following:- (i) Breach of the terms and conditions of service laid down by the Statutes; (ii)Violation of the Code of Conduct. (b) "Moral turpitude" shall include the following:- Any misbehaviour derogatory to the -: 10 :- status and dignity of a teacher. (c) "Wilful and persistent negligence of duty" shall, among other things, include the following:- (i) Dereliction of duties like not engaging the allotted classes or not completing the prescribed syllabi; (ii) Persistent absence from duty without previous permission; (iii) Failure to discharge any of the duties laid down by the Statutes." "S.439B. The following shall be the norms governing the code of conduct for teachers:-- (a) A teacher shall perform his academic duties and work related to examinations as assigned. No remuneration shall be payable to the teachers for internal assessment/home examinations conducted by the college. -: 11 :- (b) A teacher shall not discriminate against a student on political grounds or for reasons of race, religion, caste, language or sex or for other reason of an arbitrary of personal nature and shall not incite students/teachers against other students or other teachers, colleagues or administration/Governing Body of the college and the University. (c) A teacher shall have freedom of thought and expression. He shall not misuse the facilities or forum of the college/University. (d) A teacher shall not refuse to carry out the academic and administrative decisions taken by the Principal/Governing Body. (e) A teacher shall not make use of the resources and/or facilities of the Department/College/University/Governing Body for personal, commercial, political or religious purposes. (f) A teacher shall not be partial in assessment of a student or deliberately overmark, undermark or victimize a student on -: 12 :- any grounds. (g) A teacher shall not conduct/participate in private coaching classes directly or indirectly. He shall also not accept private tuitions. (h) A teacher shall not indulge in or resort to, directly or indirectly, any malpractice or unfair means in teaching/examination/ administration. (i) A teacher shall not furnish incorrect information regarding his qualifications, experience, age, etc. in respect of his appointment/promotion." Failure to conform to the abovementioned norm/s shall be construed as misconduct." 13. The petitioner submitted his reply to the charge-sheet and the inquiry proceedings commenced with effect from 28.6.2003. The management produced various documents and examined as many as 21 witnesses in respect of the aforesaid charges. It is worthwhile to note, and we emphasise, that the management also examined the girl -: 13 :- students who were material witnesses to the incidents alleged against the petitioner and who had lodged complaints/protests in respect of the objectionable behaviour of the petitioner with the girl students. 14. The petitioner was given full opportunity even of cross-examining all these witnesses, including the girl students who claimed to be victims of the alleged misconduct of the petitioner. Though it is not even the case of the petitioner to the contrary, still we must mention that during the inquiry, the petitioner was given full opportunity to defend himself not only by way of conducting cross-examination of the witnesses examined by the management but also by leading his own evidence. Admittedly, inquiry was conducted in conformity with the relevant statutes and in full compliance with the principles of natural justice. 15. The inquiry concluded on 10.2.2004 and the report thereof was submitted by the Inquiry Officer to the management on 28.3.2004. The Inquiry Officer found the petitioner guilty of alleged Misconduct and Moral Turpitude. Out of eight charges, seven are held proved. 16. The management accepted the report of the Inquiry officer in totality and consequently issued show cause -: 14 :- notice dated 13.7.2004 to the petitioner. We will deal with this show cause notice at some length hereunder while considering one of the contentions raised in the present matter on behalf of the petitioner criticising this notice. At this stage, it will be enough to state that the petitioner has replied this notice on 10.8.2004 in extenso which reply runs into as many as 18 typed pages wherein the petitioner has dealt with each and every aspect of the report of the Inquiry Officer, a copy of which was sent to the petitioner alongwith the aforesaid show cause notice by the management. 17. Having found the reply of the petitioner unsatisfactory, the management proceeded to issue a letter of termination dated 1.9.2004 terminating the services of the petitioner. The petitioner carried the matter to the College Tribunal by filing Appeal No.24 of 2004 on 29.9.2004. The Tribunal has dismissed the appeal of the petitioner by its judgement and order dated 3.5.2005 which has given rise to the present petition. 18. Before dealing with the contentions raised on behalf of the petitioner and its reply by the management, we must remind ourselves of the jurisdictions which we have in entertaining these arguments. Instead of giving a long list of various Supreme Court as also High Court -: 15 :- judgements in this regard, it will be sufficient to quote paragraph 16 of the judgement of the Supreme Court delivered in the case of Apparel Export Promotion Council v. A.K. Chopra, reported in (1999) 1 SCC 759 which reads thus:- "16. The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to reappreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since the High Court does not sit as an appellate -: 16 :- authority over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned Single Judge and the Division Bench of the High Court, it appears, ignored the well-settled principle that even though judicial review of administrative action must remain flexible and its dimension not closed, yet the court, in exercise of the power of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived -: 17 :- at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. Lord Hailsham in Chief Constable of the North Wales Police v. Evans observed: "The purpose of judicial review is to ensure that the individual rceives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized or enjoined by law to decide for itself, a conclusion which is correct in the eyes of the court." It may be mentioned here that the aforesaid judgement of the Supreme Court also dealt with a similar case involving allegations of misconduct in regard to female employees at work place amounting to sexual harassment. This was also a similar case of departmental inquiry resulting into inflicting of appropriate punishment and its challenge by the delinquent before the High Court -: 18 :- and, ultimately, the Supreme Court. Suffice it to say that it is not permissible for us to go into the factual findings recorded not only by the Inquiry Officer and accepted by the management, but also affirmed by the appellate Tribunal. These findings in a nutshell are as under:- There were several girl students in the College where the petitioner was employed. The physical education to be given to the students included lectures in the class-rooms as well as outdoor activities such as physical exercises. The acts of sexual misbehaviour attributed to the petitioner involve all girl students. Before the Inquiry Officer, the management examined all the girl students (except one) who had lodged various complaints against the petitioner. Seven witnesses were examined by the management in support of the allegations made against the petitioner as to the incidents which took place during the hike of Kanheri caves (incident involving splashing water on the chest of a girl student, drenching her completely and making the students sit in a steam by physically holding them). Three witnesses, including one Lecturer, one male student and one girl student, have deposed during the course of the inquiry as eye-witnesses to these incidents. -: 19 :- The incident which took place on 18.2.1995 that led to the prosecution of the petitioner is also held as proved not only by the Inquiry Officer but also by the College Tribunal. The allegations in this regard that the appellant had taken one girl student Ms Naik to Hotel Ramraj and molested her by catching hold of her hand and touching her breast is also held proved not only by the Inquiry Officer but also by the appellate Tribunal on the basis of three witnesses examined by the management in support of its allegation. In this regard, the Tribunal has specifically observed that the incident took place in February 1995 and the evidence of the complainant, the girl student, was recorded before the Inquiry Officer in December, 2003. In the meanwhile, she got married. Even then after about eight years of the incident and even after marriage, the victim girl student appeared before the Inquiry Officer led her oral evidence in support of the aforesaid incident. She boldly and successfully faced the cross-examination conducted on behalf of the petitioner. It is correctly observed by the College Tribunal in paragraph 33 of the impugned judgement that these facts are eloquent and suggest that such a girl student would not state false or concocted story under the given circumstances. The College Tribunal further observed in paragraph 27 that apart from these specific incidents, there is a general allegation also against the -: 20 :- petitioner about his repeated misbehaviour with girl students in various manner. It is further observed in paragraph 38 by the College Tribunal as under:- "38. It will thus be seen that the students and colleagues of the appellant uniformly state that the appellant’s behaviour in relation to the lady students was improper and not befitting a teacher. Nothing has been elicited in the cross examination of any of the above mentioned witnesses that they were on cross terms with the appellant and that therefore they were depositing falsely. It is one thing if a singular witness states something about the abnormal behaviour of somebody. But it is a different thing when several witnesses state in chorus that the appellant used to misbehave with the lady students in various ways. The latter certainly carries weight." 19. On the basis of these and similar other observations and findings, the College Tribunal has concluded that there can be no manner of doubt that the behaviour of the petitioner revealed by the series of incidents cited by -: 21 :- the witnesses certainly amounts to sexual harassment caused by the petitioner to the girl students and that the conduct of the petitioner with girl students was derogatory to his status and dignity as a teacher and, therefore, it amounts to moral turpitude and also misconduct. The Tribunal has also recorded a finding that the petitioner is further found to have misused his position as a teacher and abuse the freedom available to him in that capacity for the purpose of sexually harassing the girl students. A further finding is also recorded in the impugned judgement that the petitioner was also found to use unfair means in "teaching" by assuring all girl students of giving good marks in the internal assessment and that the petitioner was discriminating male students on the ground of sex. The Tribunal thus has confirmed the findings of the Inquiry Officer that the petitioner was guilty of charges of Misconduct and Moral Turpitude. 20. Apart from these findings, the Tribunal has also found the petitioner guilty of other three allegations made against him by the management. These allegations are as under:- Firstly, it is found that the petitioner was avoiding to sign pay register in respect of receipt of -: 22 :- the amount of subsistence allowance. Secondly, during the suspension period, the petitioner is found to have left the headquarter and stayed at Pune without prior permission of the competent authority and, thirdly, the petitioner is also found to have been filing cases against the management in the Court at Pune with a view to harass and pressurize the management. The Tribunal has thus found that the charges levelled against the petitioner on these three counts are also proved. 21. The learned counsel appearing on behalf of the petitioner made a feeble attempt to stamp these findings of the Tribunal as perverse. He was unable to make out any case in this regard which would even remotely suggest that any of the aforesaid findings recorded by the Inquiry Officer as confirmed by the Tribunal to be perverse or even doubtful. We, therefore, hereby express our inability to discard any of the aforesaid findings of the Inquiry Officer as confirmed by the Tribunal. We must proceed in the present matter on the basis that the aforesaid findings of facts recorded by the Inquiry Officer, as confirmed by the Tribunal, are correct. 22. Now we need to examine the sustainability of various contentions raised on behalf of the petitioner within the four corners of law and conclusive findings recorded by -: 23 :- the Inquiry Officer as confirmed by the Tribunal. 23. The learned counsel appearing on behalf of the petitioner strenuously contended that the show cause notice dated 13.7.2004 issued by the management was not in consonance with the judgment delivered by the Supreme Court in the case of B.D.Gupta v. State of Haryana, reported in (1973) 3 SCC 149. Relying on the observations of the Supreme Court made particularly in paragraph 9 of the aforesaid judgement, it was contended on behalf of the petitioner that show cause notice