*THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + WRIT PETITION No. 4185 of 1995 %Dated 3.11.2005 # 1. K.S.Sanjeeva Rao and two others ……….. Petitioners $ 1.The District Tribal Welfare Officer, Khammam at Bhadrachalam and another ………… Respondents ! Counsel for Petitioners : Sri M.Rajamalla Reddy ^ Counsel for Respondents: G.P. for Social Welfare < GIST: > HEAD NOTE: ? Cases referred (1998) 7 SCC 84 2 (2002) 10 SCC 580 3 AIR 1963 SC 375 4 AIR 1964 SC 719 5 (1993) 4 SCC 727 6 AIR 1976 SC 1080 7 (1991) 2 SCC 716 8 AIR 1977 SC 1512 9 AIR 1982 SC 673 10 (1984) 1 SCC 43 11(1997) 5 SCC 341 12(2004)1 SCC 64 13AIR 1991 SC 1260 14AIR 1974 SC 555 15AIR 1964 SC 471 16(1996)3 SCC 364 17(1994) 2 SCC 481 182004(5) ALD 180 (DB) 19(2002) 1 SCC 100 20AIR 1955 S.C.425 21AIR 1987 SC 2235 22AIR 1987 SC 1972 THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO.4185 OF 1995 ORDER: Proceedings of the first respondent dated 3.2.1995, whereby the petitioner was dismissed from service, is the subject matter of challenge in this writ petition. Facts, to the extent necessary for this writ petition, are that the petitioner was appointed on 19.06.1982 as an SGBT Teacher in the Ashram School and was later promoted as Head Master. Ashram Schools are run by the Integrated Tribal Development Agency, (for short “ITDA”), a Society, constituted by the Government of Andhra Pradesh, for the development of socio-economic interests of Tribals. The expenditure of the Society is met by the Government of India and the Government of Andhra Pradesh, it is run by Government officials, funded and supervised by the Government of India. Institutions meant for Tribals, in the scheduled areas, are under the control of the ITDA, a “State” within the meaning of Article 12 of the Constitution of India. While working as the Head Master of Ashram School, Kolleru, the petitioner was issued a charge sheet on 31.3.1992, and the charges, stated below, were framed against him: “Charge No.1. Sri K.S. Sanjeeva Rao, H.M.A.S. Kalleru, had been misbehaving with and harassing the tribal girl students of the Ashram school, Kalleru, for the last few weeks. He used to enter the hostel rooms during the nights and lying on the beds of Kum. T.Lalamma, Kum.Madakam Radhamma, Kum.Karam Lakshmi and Kum. Karam Kannamma, used to bite their cheeks, press breasts, and caress their private parts. He used to threaten them that they would be removed from the hostel, if they reveal these facts to anybody. However, when Sri Madakam Venkaiah, President, M.P.P. Chintoor, having came to know of these facts, questioned Sri K.S.S. Rao, he had confessed before the President, M.P.P. Chintoor that it was a mistake on his part and promised to behave with the students properly in future. But Sri K.S.S. Rao, H.M., failed to keep his promise and continued to misbehave with the girl students as usual. On 28.02.1992 at 9.00 P.M., Sri K.S.S.Rao, H.M. A.S. Kalleru called Kum. T.Lalamma to his residential quarters and asked her to cook food for him. Accordingly, Kum. T.Lalamma, cooked food. After finishing cooking and while Kum. T.Lalamma was returning to her hostel room, Sri K.S.S. Rao, H.M. pulled her, bitten her cheeks, pressed her breasts and forced to be with him. However, Kum. T.Lalamma, managed to get herself released from the hold of Sri K.S.S. Rao and ran out of the A.S. hostel, reached her native village – Yerrampet, the same night and narrated the incident to her parents. This gruesome incident has naturally so much frightened her that she is reluctant to return to A.S. Kalleru and continue her studies. The behavour of Sri K.S.S. Rao, H.M. is most heinous and quite unbecoming of a teacher, under whose care small, innocent tribal girls and boys have been placed. It has been thoroughly demoralized the students and eroded the confidence of the tribal parents in the administration of the Ashram school, Kalleru. Charge No.2 Sri K.S.S. Rao, H.M. A.S. Kalleru, used to consume alcohol day in and day-out, totally neglected the education of the students, forced the hostel students to attend to his domestic chores and misappropriated the rice and other essential commodities of the hostel meant for the students. Added to all this, he used to behave with the girls in a most indecent and reprehensible manner. The result: A lot of mental agony for and physical torture and emaciation of the small children. The school children are scared so much that many of them like Kumari T.Lalamma, Kum. Madakam Radhamma, Kum. Karam Kannamma and Kum. Karam Lakshmi left the Ashram school, Kalleru and discontinued their studies. Sri K.S.S. Rao as the Head Master/Guardian is expected to look after the education and general well being of the tribal children under his custody, in violation of most elementary norms had committed crimes against the helpless children and is responsible for undermining the future of many tribal children.” An enquiry Officer was appointed, an enquiry held and on receipt of the enquiry report, a show cause notice was issued to the petitioner on 16-11-1994 communicating the gist of the findings of the Enquiry Officer on each charge, to which the petitioner submitted his explanation on 7.12.1994. The District Tribal Welfare Officer, vide proceedings dated 03.02.1995, held that, teachers are by custom and convention are regarded as a third parent, society cannot take a lenient view of moral lapses of teachers that too a Headmaster of an Ashram School in a Tribal area and if persons like the petitioner were allowed to continue he would end up doing more harm and damage to tribal schools in particular and society in general. Since the charges held proved against the petitioner were serious in nature, punishment of dismissal from service was imposed on him, by the District Tribal Welfare Officer, vide proceedings dated 03.02.1995. Hence this writ petition. During the pendency of this writ petition, the petitioner died on 21.10.2003 and, by order in W.P.M.P.No. 17042 of 2005 dated 05.09.2005, his wife and son were brought on record as his legal representatives. It is stated, in the affidavit filed in support of the writ petition, that the allegations in the charge sheet are made at the instance of one Sri Madakam Venkaiah, the then President of the Mandal Praja Parishad, Chinttoor and that the enquiry proceedings are null and void and without jurisdiction. It is contended that, no witnesses were examined in the presence of the petitioner in the domestic enquiry, the statements of witnesses were not recorded in his presence and that he was not given an opportunity to cross-examine them. On behalf of the petitioner, his statement, the statement of his wife Smt.R.Hemalatha and two Teachers, who were working at that time in the Ahsram School, Kolleru viz., Sri J.Lalaiah and Sri P.Anantharamulu, were recorded by the Mandal Development Officer (Enquiry Officer). With regards the allegations, in the charge sheet, that the petitioner misbehaved with a girl student by name Kum.T.Lalamma and harassed her in the Ashram School on 28.2.1992 at 9.00 p.m, the petitioner contends that on 27.2.1992 itself Kum.T.Lalamma had left the school for her native place along with her sister and she was not in the school on 28.2.1992. The police complaint lodged on 03.03.1992, by Kum.T. Lalamma, at Chintoor Police Station, is alleged by the petitioner to be at the instance of the Mandal President Sri Madakam Venkaiah. The petitioner contended that, he never misbehaved with girl students of the Ashram School or entered Hostel rooms during night hours, that he was a married man, his wife R.Hemalatha was also a teacher working in the same school, they were living together in the residential quarters attached to the Ashram School, on the night of 28.2.1992 the petitioner’s wife was with him and there was no need for him to call Kum.T. Lalamma or to commit the alleged acts. It is stated that the other two Teachers, Sri J.Lalaiah and Sri P.Anantha Ramulu were residing near the residential quarters of the petitioner and were also present on the night of 28.2.1992, that while the petitioner was initially imposed fine by the learned Mandal Magistrate and the said order was set aside by the Sessions Judge at Khammam in Crl.Appeal No.24 of 1992, the matter was remitted to the Mandal Magistrate and that the matter was pending. The allegation of consumption of alcohol, during day time, is denied and it is stated that the enquiry report was not furnished to him. In his counter affidavit, the 1st respondent would submit that, the office of the District Tribal Welfare Officer is under the control of the Government, the office was established in the year 1973 to ground welfare schemes of Tribals, as per G.O.Ms.No.515 SW(M) Department, dated 25.05.1976, the appointing authority, for the posts of Secondary Grade Teachers in Tribal Welfare Institutions, is the District Tribal Welfare Officer, the expenditure of the Ashram Schools are being met from the funds released by the State Government, the authority which may impose on a member of subordinate services the penalties, specified in clauses (ii), (v) to (ix) of Rule 9, is the appointing authority and that action was taken against the petitioner according to rules. Reference is made to the report of the Enquiry Officer and it is stated that the Enquiry report revealed that Kum.T. Lalamma, a student of 4th standard, aged about 12 years, had leveled serious charges of misbehavour against the Head Master (petitioner), that such serious charges of misbehaviour would not have been made but for some traumatic experiences in the hostel and that Kum. T. Lalamma had specifically stated that she bore no grudge or animosity against the petitioner. The evidence of Smt R. Hemalatha, wife of the petitioner and two other school teachers, who had deposed in favour of the petitioner, was disbelieved by the Enquiry Officer as the two teachers were found to be obligated to the petitioner. While the statement of the petitioner was recorded by the Enquiry Officer on 24.04.1992, the statement of Smt. R. Hemalatha and J. Lalayya, examined as witnesses on behalf of the petitioner, were recorded on 22.04.1992 and that of Sri P. Anantha Ramulu, another witness on behalf of the petitioner, was recorded on 24.04.1992. The statement of Kum. T. Lalamma (the victim) was recorded on 05.05.1992 and that of the President, Mandal Praja Parishad, Chinthuru was recorded on 06.05.1992. While the petitioner and his wife denied the allegation of misconduct, the other two teachers stated that they could not categorically state whether the allegation of misbehaviour leveled against the petitioner was true or not. With regards the second charge of misuse or misappropriation of essential commodities, reference is made by the Enquiry Officer to the evidence of Smt. R. Hemalatha, wife of the petitioner, who admitted that on one occasion, when rice was not available at Kunta village, she had utilized 3 Kgs of hostel rice for the requirements of her family. The Enquiry Officer held that both Sri J. Lalaiah and Sri P. Anantha Ramulu were regularly dining in the hostel which was an irregularity, that since the petitioner was addicted to heavy drinking during night, he had entrusted supervision of the night study of the children to two teachers, that the petitioner himself did not supervise at any time, that not a single class was being conducted at 10.30 AM, that all the teachers, including the petitioner, were at their residential quarters and that the children were wandering in the school premises. The Enquiry Officer, vide proceedings Rc.No.A/334/Susp/92, dated 03.02.1995, forwarded his report and proceedings of the enquiry to the Project Officer, ITDA. The findings recorded by the Enquiry Officer, in respect of the first charge, is as follows: “A close perusal of the reply/evidence given by Sri KSS Rao, H.M (u/suspension), his wife Smt. R.Hemalatha, SriJ.Lalaiah and Sri P.Ananta Ramulu – both teachers examined as witnesses on behalf of the H.M. Sri K.S.S.Rao, complainant Kum.T.Lalamma and the President, MPP, Sri Madakam Venkaiah reveal that:- Kum.T.Lalamma, a student of 4th standard, brought the misbehaviour of Sri K.S.S.Rao, H.M. with herself and other girl students to the notice of the President, M.P.P in the first instance. The President, MPP, visited the Ashram School, Kalleru twice. During his second visit, the President, MPP questioned the H.M. Sri K.S.S.Rao about the allegations of misbehaviour with the girl students and mismanagement of school affairs and advised him to behave properly with girl students in future and rectify the defects in managing school affairs. However, Sri K.S.S.Rao, H.M. did not keep his promise and continued misbehaving with the girl students as usual. Sri K.S.S.Rao, H.M. denied the allegation of misbehaviour and stated that he is married man and is living with his wife in the residential quarters attached to the Ashram school. His wife Smt. R.Hemalatha also denied the allegation of misbehaviour of her husband with hostel girl students during nights, as she and her husband live together in the residential quarters attached to the school. Sri J.Lalaiah and Sri P.Anantaramulu – teachers who gave evidence on behalf of Sri K.S.S. Rao, stated that they could not say categorically whether the allegation of misbehaviour leveled against Sri K.S.S.Rao is true or not. In this connection, the important point to be considered is as to why Kum. T.Lalamma – a student of 4th standard and aged about 12 years, leveled the serious charge of misbehaviour against the H.M. himself at all, unless she had had some traumatic experiences in the hostel; she said that she had no grudge or animosity against the H.M. Under the ordinary circumstances, no girl students, Kum.T.Lalamma, being no exception, would have levelled the allegation of misbehaviour against the H.M. and in the process, risked her studies and invited unnecessary complications. On his part, the H.M. Sri K.S.S. Rao, was also not in a position to cite any particular reason, for Kum.T.Lalamma leveling the charge of misbehaviour except saying that the villagers or some local politicians (whom Sri k.S.S.Rao did not identify) have incited her. These days one often comes across with instances of allegations of various kinds leveled against the H.Ms./Wardens but instances of allegations of misbehaviour with girl students are very rare. The contention of Sri K.S.S.Rao, H.M. that he is a married man and the contention of his teacher – wife Smt.R.Hemalata, that there is no need for Sri K.S.S.Rao to misbehave with girl students during nights, because, she and her husband live together, may be correct in the case of a responsible and sensible person who has some regard for atleast the most elementary norms of character and conduct. Sri K.S.S.Rao, H.M. is not known to be a respector of such elementary norms of life. He is addicted to heavy drinking during night times and inspite of his wife living with him, it was quite likely that he would enter the hostel rooms of the girl students in a state of drunkenness and misbehave with them. As for the allegation of misbehaviour with Kum.T.Lalamma on the night of 28.2.92, Sri K.S.S.Rao, in his written reply dated 10.4.92 denied that he had misbehaved with Kum.T.Lalamma on 28.2.92 at 9.00 p.m. and stated that Kum.T.Lalamma was forced to give complaint against him by the local politicians. Significantly, however, during the person hearing, on 24.4.92, Sri K.S.S.Rao, made an about-turn and stated that Kum.T.Lalamma was not in the hostel on 28.2.92 and that she was taken away from the school by her sister the previous day and therefore it is not true to say that he misbehaved with Kum.T.Lalamma on 28.2.92. His wife Smt.R.Hemalata, dutifully supported the version of Sri K.S.S.Rao that Kum.T.Lalamma was not in the hostel on 28.2.92. Sri J.Lalaiah and Sri P.Ananta Ramulu – two teachers of the Ashram School, Kalleru, who appeared to be under certain obligations, also echoed the statement of Sri K.S.S.Rao, that Kum.T.Lalamma was taken away from the school by her sister on 27.2.92 itself and that she was not in the hostel on 28.2.92. The above statement of Sri K.S.S.Rao, H.M, his wife Smt. R.Hemalata and the two teachers is nothing but a concocted story and an after thought trotted out to absolve Sri K.S.S.Rao from the charge of misbehaviour. If Kum.T.Lalamma was actually taken away from the school on 27.2.92 itself by her sister, and if she was not in the hostel on 28.2.92, Sri K.S.S.Rao, would definitely have made a mention of this crucial point in his written statement dated 10.4.92. That he did not on 10.4.92 and did so only on 24.4.92 i.e., after a fortnight, speaks for itself and exposes the real idea. Kum. T.Lalamma filed a complaint in the Police Station, Chintoor, four days after the incident of misbehaviour on 28.2.92. She stated that she could not file the complaint in the Police Station immediately, because she wished to bring the incident to the notice of the President, MPP in the first instance and was in search of the President and it was after four days that she could contact him and narrated the details of the incident of 28.2.92 to him and then filed a complaint in the police station, Chintoor. The Prsident, MPP had also stated that Kum.T.Lalamma could not meet him for about four days because he was not available at Chintoor and that when she met him after four days, she narrated the facts of the incident dt.28.2.92 to him and that he advised her to file a complaint in the police station. Under the circumstances, I do not find any reason to disbelieve that the HM. Sri K.S.S.Rao had been misbehaving with and harassing the tribal girl students of the A.S.Kalleru and that he had misbehaved with Kum.T.Lalamma on the night of 28.2.92, and as a result of this frightening experience, Kum.T.Lalamma on the night of 28.2.92 left the Ashram School, Kalleru and discontinued her studies. The behaviour of Sri K.S.S.Rao, H.M. is most heinous and quite unbecoming of a H.M. It has eroded the confidence of tribal parents in the administration of the Ashram School, Kalleru. Also, it may not be out of place to mention here that on the complaint filed by Kum.T.Lalamma in the Police Station, Chintoor, and the S.I. of Police, Chintoor, filing charge sheet against Sri K.S.S.Rao, H.M (u/s) under Section 354 IPC, the Mandal Magistrate, Chintoor, framed the charge of misbehaviour against Sri K.S.S.Rao, H.M. and on admission of his guilt, Sri K.S.S.Rao, was convicted and sentenced to pay a fine of Rs.300/- and in default of payment of fine, he should undergo simple imprisonment for a period of 3 months, under Clause-A of Sec.251 Cr.P.C. Sri K.S.S.Rao, H.M. now says that he was forced to admit the offence under duress and undue influence by the police which resulted in his being fined Rs.300/- by the Mandal Magistrate, Chintoor. However, it is altogether a different issue” On receipt of the enquiry report, a show cause notice was issued, calling upon the petitioner to show cause as to why punishment should not be imposed upon him. Gist of the findings of the enquiry officer was enclosed along with the show cause notice. On receipt of his reply thereto, action was taken under Rule 9 of the C.C.A. Rules, 1991 and the petitioner was dismissed from service, vide proceedings Rc.No.A/334/Susp/92, dated 03.02.1995 of the District Tribal Welfare Officer, Bhadrachalam. While several contentions are raised in the writ petition Sri M.Raja Malla Reddy, learned counsel for the petitioner, would limit his contentions to the grounds that the enquiry proceedings were held in violation of principles of natural justice. Learned counsel would submit that the statements of prosecution witnesses, recorded behind the petitioner’s back and without the petitioner being given an opportunity to cross-examine the witnesses, were taken into consideration in holding the petitioner guilty of the charges. Learned counsel would submit that a copy of the enquiry officer’s report was not furnished, as a result of which, the petitioner was denied the opportunity of submitting his objections to the findings of the Enquiry Officer. Learned counsel would rely on Punjab National Bank v. Kunj Behari Misra and Ajit Jain v. National Insurance Co. Ltd, in this regard. Learned Government Pleader would submit that principles of natural justice cannot be placed in a straight jacket formula, that the findings of the Enquiry Officer disbelieving the evidence of the petitioner and in accepting the evidence of the victim girl was neither perverse nor was it based on no evidence and did not warrant interference of this Court under Article 226 of the Constitution of India. Learned Government Pleader would submit that child molestation was a heinous crime and since the petitioner, a headmaster on whom lay the responsibility of protecting the girl inmates of the hostel, had indulged in this unpardonable crime, the punishment of dismissal from service was legal and valid. It is well settled that domestic enquiries, conducted by Employers, must be fair and just and in bringing home to the employee the charges framed against him, principles of natural justice must be observed. Normally, evidence on which charges are sought to be proved, must be laid at such an enquiry in the presence of the employee, an opportunity given to the employee to cross examine the witness and on completion of the departmental enquiry and on submission of the report of the enquiry officer, a copy thereof is required to be furnished (State of Mysore Vs. Shivabasappa; Khardah and Co. Ltd Vs. The Workmen). In Kunj Behari Misra, (1 supra), following the earlier Constitution Bench decision in Managing Director, ECIL, Hyderabad Vs. B. Karunakar , it was held that principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the Enquiry Officer holds the charges to be proved then the report has to be given to the delinquent officer to enable him to make a representation, before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. In Ajit Jain (2 supra) the Supreme Court held that as a result of an infirmity that has crept in the departmental proceedings, the order inflicting punishment would be vitiated and the Court would be required to set aside the order and direct that the Enquiry Proceedings be relegated to the stage where the infirmity had already crept in. It is not in dispute that in the present case while the statement of the victim and that of the President, Mandal Praja Parishad were recorded, their evidence was not subjected to cross examination by the petitioner, and while the gist of the findings of the Enquiry Officer was given, a copy of the full enquiry report was not furnished. In the face of such serious charges of child molestation leveled, against the petitioner, by the victim, a 12 years old tribal girl student, who has given a graphic account of the heinous incident, would the order of punishment of dismissal from service require to be set aside on the ground of violation of principles of natural justice? Departmental proceedings, as is well settled, do not stand on the same footing as a criminal prosecution in which the degree of proof required is of a very high order. Strict rules of Evidence Act and standard of proof envisaged therein do not apply to departmental proceedings. It is open to the authorities to receive and place on record all necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. The standard of proof, in departmental enquiries, is not proof beyond reasonable doubt but the preponderance of probabilities tending to draw an inference that the fact must be more probable. The Probative value of the evidence can be guaged from the facts and circumstances in a given case. (K.L.Shinde Vs. State of Mysore; Maharashtra