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ASHOK KUMAR YADAV versus PRINCIPAL KENDRIYA V., NTPC SONEBHADRA & OTHERS

High Court of Judicature at Allahabad

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Ashok Kumar Yadav v. Principal Kendriya V., Ntpc Sonebhadra & Others - WRIT - A No. 36082 of 2001 [2006] RD-AH 20373 (1 December 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.34

Civil Misc. Writ Petition No. 36082 of 2001

Ashok Kumar Yadav Vs. The Principal, Kendriya Vidyalaya, N.T.P.C. Shakti Nagar, Distt. Sonbhadra & Ors.

********

Hon. Dr. B.S. Chauhan, J.

Hon. Dilip Gupta, J.

A ''Guru' not only creates knowledge, learning and wisdom but he has also the obligation to build the character of his disciples and to attend to their moral and social growth. The role of a teacher is akin to that of a ''Guru' or ''Acharya'. He has to set an example of exemplary conduct and in view of the peculiar position he holds in the society, a teacher is placed on a pedestal just below the parents, if not on the same pedestal. It is, therefore, the duty of the teacher to take such care of his pupils as a careful parent would take of his children. Quite ironically, we have before us in this petition a teacher whose services as a Trained Graduate Teacher in the Kendriya Vidyalaya Sangathan have been terminated as he was found guilty of moral turpitude involving exhibition of sexual behaviour towards the girl students of the School.

A complaint was made by three girl students of Class VIII of Kendriya Vidyalaya, NTPC, Shaktinagar to the Principal mentioning therein that on 6th May, 2000 after the classes were over, they were asked by the petitioner to stay back on the pretext that they had to write in their diary and while they began to record their impressions, he conducted himself in a most undesirable manner by not only catching their hands and patting them on their back but also held them tight and kissed them one by one and released them only when they slapped him. On receipt of the aforesaid complaint from the three girls, the Principal issued a memorandum dated 10th May, 2000 to the petitioner enclosing the copies of the complaints and he was asked to explain why disciplinary proceedings may not be initiated against him. The petitioner filed a reply dated 29th May, 2000 in which he admitted that he had asked some of the students to remain in the class after the school hours. In the said reply, he also not only mentioned that after the said incident he was ashamed of himself as he was not supposed to mishandle the students but he also mentioned that even though the complaints made against him were false and concocted, he was tendering unconditional apology for the alleged actions with the undertaking not to repeat such actions in future. The Education Officer, Kendriya Vidyalaya Sangathan, Patna Region was asked to conduct a preliminary inquiry against the petitioner. The Inquiry Officer interrogated the girls, their parents, teachers, Principal, Vice-Principal, girls of different classes and the petitioner and obtained their statements. In the statement made by the petitioner before the Inquiry Officer, he admitted that he had caught the girls and kissed them and the girls slapped him also for his misbehaviour.

The Preliminary inquiry report submitted by the Education Officer after recording the aforesaid facts concludes :-

"........................

After evaluation and analysis of written statements as well as oral statements of different persons it is revealed that on 06-05-2000 at the end of last period Mr. A.K.Yadav detained about five girls of class VII'E' in the class room. He asked them to write about him in his diary. While Kum. Pushpa was writing he caught her tightly and kissed her. She protested and slapped him. Then Mr. Yadav held Kum. Sangita touched and moved his hand on her cheek, back and hips and tried to kiss her. She too protested and scolded him. When the girls were about to go, Mr. Yadav suddenly caught Kum. Sweta from behind so tightly that she cried and slapped him. The statements of Kum. Savita Rao and Anju present in the class room during the incident also reveals the truth about the incident (Appendix E1 to E-5). He then stood in front of the door and requested them not to tell this incident to any body but the girls immediately reported the incident to the Principal.

It is also revealed that Mr. Yadav has loose habit and exhibited immoral behaviour with girl students in the past like holding upper arms, touching and moving hands on back, hips and cheeks, holding waist, touching private parts etc. which was narrated by the higher class students of the Vidyalaya and stated by the Principal and Vice-Principal in the statements (Appendix B & C).

After evaluation of the written documents/statements and evidences collected from different sources during investigation, the undersigned reached the conclusion that the allegation against Mr. A.K.Yadav, TGT, (SSt), Kendriya Vidyalaya, NTPC, Shaktinagar of his immoral behaviour towards girl students appear to be true and as such prima facie case is well established.

Hence suitable disciplinary action may be taken against Sh. A.K. Yadav, TGT (SSt.), Kendriya Vidyalaya, NTPC, Shaktinagar as per KVS Rules."

An order dated 16th October, 2000 was then passed by the Commissioner, Kendriya Vidyalaya Sangathan, New Delhi and the same is as follows :-

"WHEREAS Shri A.K. Yadav, TGT (S.St.), K.V., NTPC, Shaktinagar has been found guilty of moral turpitude involving sexual behaviour towards girl students of K.V., NTPC Shaktinagar.

2. WHEREAS, the undersigned is satisfied from the inquiry conducted by Sh. C. Neelap, Education Officer, K.V.S., Regional Office, Patna that Shri Yadav is prima-facie guilty of moral turpitude involving exhibition of immoral sexual behaviour towards the girl students.

3. AND WHEREAS, I am further satisfied that the procedure of CCS (CCA) Rules, 1965 to hold regular inquiry for major penalty will not be fair to the students as it will cause serious embarrassment to the girl students, their parents and would also vitiate the atmosphere of the school and hence regular inquiry under CCS (CCA) Rules, 1965 is dispensed with in the present case.

4. NOW, THEREFORE, I, H.M. Cairae, Commissioner, Kendriya Vidyalaya Sangathan, in exercise of the powers under Article-81(b) of the Education Code for Kendriya Vidyalayas, hereby terminate the services of Sh. A.K. Yadav, TGT, (S.St.), K.V., NTPC Shaktinagar, with immediate effect.

Shri A.K. Yadav will be paid pay and allowances as admissible under the rules, in lieu of notice period."

The aforesaid order refers to Article 81(b) of the Education Code of Kendriya Vidyalayas which is quoted below :-

"Article 81 (b) - Termination of services of an Employee Found Guilty of Immoral Behaviour towards Students -

Wherever the Commissioner is satisfied after such a summary enquiry as he deems proper and practicable in the circumstances of the case that any member of the Kendriya Vidyalaya is prima facie 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 him one month's or 3 month's pay and allowances according as the guilty employee is temporary or permanent in the service of the Sangathan. In such cases procedure prescribed for holding enquiry for imposing major penalty in accordance with CCS (CCA) Rules, 1965 as applicable to the employees of the Kendriya Vidyalaya Sangathan, shall be dispensed with, provided that the Commissioner is of the opinion that it is not expedient to hold regular enquiry on account of serious embarrassment to the student or his guardians or such other practical difficulties. The Commissioner shall record in writing the reasons under which it is not reasonably practicable to hold such enquiry and he shall keep the Chairman of the Sangathan informed of the circumstances leading to such termination of service."

The petitioner challenged the aforesaid termination order dated 16th October, 2000 before the Central Administrative Tribunal, Bench Allahabad which by its judgment and order dated 6th August, 2001 dismissed the Original Application. The termination order dated 16th October, 2000 and the judgment of the Tribunal rejecting the Original Application have been impugned in this petition.

We have heard Sri Ashok Khare, learned Senior Counsel for the petitioner and Sri N.P. Singh, learned counsel for the respondents.

Sri Ashok Khare, learned Senior Counsel submitted that the order dated 16th October, 2000 passed by the Commissioner of Kendriya Vidyalaya is liable to be set aside as it was issued without holding the regular disciplinary inquiry. According to him the regular disciplinary inquiry could not have been dispensed with in spite of the provisions of Article 81(b) of the Education Code for Kendriya Vidyalayas in view of the decisions of the Supreme Court in Central Inland Water Transport Corporation Ltd. & Anr. Vs. Brojo Nath Ganguly & Anr., AIR 1986 SC 1571 and Delhi Transport Corporation Vs. D.T.C. Majdoor Congress & Ors., AIR 1991 SC 101. In the alternative he submitted that the order was liable to be set aside as no reasons were recorded in writing by the Commissioner for not holding the regular enquiry.

Sri N.P. Singh, learned counsel for the respondents submitted that the impugned order does not suffer from any infirmity and in support of his contention he placed reliance upon the decision of the Supreme Court in Special Leave Petition No.9808 of 2002 decided on 2nd May, 2003 (The Director, Navodaya Vidyalaya Samiti & Ors. Vs. Babban Prasad Yadav & Anr.).

Before we proceed to examine the contentions advanced by the learned counsel for the parties, we consider it appropriate to emphasise on the qualities and character a teacher must possess and these are to be found in the judgment of the Supreme Court in Avinash Nagra Vs. Navodaya Vidyalaya Samiti & Ors., (1997) 2 SCC 534 :-

"............The teacher, therefore, is the primary functionary to transmit the intellectual and ethical values to the young. He should encourage the attitude of free enquiry and rational reflections. The teacher should try to remove the leaden weights of pride and prejudice, passion and desire which are likely to cloud a student's vision. The devoted teacher is not only concerned with the child's intellectual development but also has the obligation to attend to his moral, emotional and social growth as well.

Mahatma Gandhi, the Father of the Nation has stated that "a teacher cannot be without character. If he lacks it, he will be like salt without its savour. A teacher must touch the hearts of his students. Boys imbibe more from the teacher's own life than they do from books. If teachers impart all the knowledge in the world to their students but do not inculcate truth and purity amongst them, they will have betrayed them". .................. Dr. S. Radhakrishnan has stated that "we in our country look upon teacher as gurus or, as acharyas. An Acharya is one whose aachar or conduct is exemplary. He must be an example of Sadachar or good conduct. ...............

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. ..................... 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 caliber, 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.

............

............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 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.  ..............."    

In Raj Pal Verma & Ors., Vs. Chancellor of Meerut University (renamed as Ch. Charan Singh University), Raj Bhawan, Lucknow & Ors., reported in AIR 1997 SC 2708 the Supreme Court also had an occasion to examine the role of teachers :-

"............... Honest and effective performance of the duties in teaching and in the management of the Universities is sagging and disappearing. Centres of learning meant to prepare the student with broad, enlightening and secular breed to improve excellence, higher learning, rational thinking and scientific temper with objectivity and fairness, are breading with narrow minded and cynical attitude. Objectivity and secular outlook would be brought back on board only when teacher becomes Guru and serves as Guru Devo Bhava but not as caste demon. The true teacher scintillates the young receptive minds with scientific thought and rational thinking and makes him progressive minded man to occupy any chosen faculty, profession, avocation, service to serve the society with pride of his almamater".

These are the duties and responsibilities expected of a teacher.

The contention of the learned Senior Counsel for the petitioner is that in view of the decisions of the Supreme Court in Central Inland Water Transport Corporation Ltd. (supra) and Delhi Transport Corporation (supra), the services of the petitioner could not have been terminated without holding a regular inquiry, irrespective of the fact whether Article 81(b) of the Education Code authorises the Commissioner to pass an order after recording reasons why it was not practicable to hold the inquiry. This contention was considered and repelled by the Supreme Court in the case of The Director, Navodaya Vidyalaya Samiti (supra) and the relevant portion of the judgment is quoted below :-

"......... The rule is not under challenge. All that is required for the Court is to be satisfied that the pre-conditions to the exercise of power under the said rule are fulfilled. These pre-conditions are (1) holding of a summary enquiry; (2) a finding in such summary enquiry that the charged employee was guilty of moral turpitude; (3) the satisfaction of the Director on the basis of such summary enquiry that the charged officer was prima facie guilty; (4) the satisfaction of the Director that it was not expedient to hold an enquiry on account of serious embarrassment to be caused to the student or his guardians or such other practical difficulties and finally (5) the recording of the reasons in writing in support of the aforesaid.

In this case, all the pre-conditions have been fulfilled. An enquiry Committee was duly constituted. It held an enquiry and came to the conclusion that the respondent was guilty of the offence with which he was charged, namely, writing love letters to the student in question. The Director has recorded the reasons for dispensing with a regular enquiry, reasons which have been upheld as being valid in the decision in Avinash Nagra (supra), wherein this Court had held :

With a view to ensure safety and security to the girl students, to protect their modesty and prevent their unnecessary exposure at an enquiry in relation to the conduct of a teacher resulting in sexual harassment of the girl student etc. involving misconduct or moral turpitude, resolution prescribing special summary procedure was proposed and published by notification dated 23.12.1993, after due approval of the Executives of the respondent Samiti. The Minister of Human Resources and Development, Government of India in its Chairman. 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 true that the Court in Avinash Nagra has made the following observations:

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.

However. the Court goes on to say :

In the circumstances, it is very hazardous to expose the young girls to tardy process of cross examination.

The last observation was not based on the fact that the employee in that case was a probationer at all. Indeed the embarrassment to the girl student would hardly be different merely because the alleged offender is a permanent employee. Besides under Article 311(2) itself an enquiry may be dispensed with under certain circumstances. We have no doubt that those circumstances may include a situation as indicated in the rule of the institution as mentioned hereinbefore.

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 (supra), 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."

 

In view of the observations made by the Supreme Court in the aforesaid decision, the submissions of the learned Senior Counsel for the petitioner that a detailed inquiry should have been held before terminating his service, cannot be accepted. Article 81(b) of the Education Code provides for exigencies when the regular enquiry can be dispensed with and this is what has been done in the present case.

The restricted nature of the enquiry that is required to be conducted in such delicate matters has been emphasised by the Supreme Court in Hira Nath Mishra & Ors. Vs. The Principal, Rajendra Medical College, Ranchi & Anr., AIR 1973 SC 1260 and it needs to be mentioned that the observations were made even though there did not exist any clause similar to Article 81(b) of the Education Code. In the said case some male students of the College entered the girls hostel and went near the window of the rooms of some of the girls and tried to pull their hands. Some boys also went to the terrace of the girls hostel where few girls were studying. A complaint was submitted to the Principal by 36 girl students and an Inquiry Committee was constituted. Four boy students were directed to present themselves before the Inquiry Committee and they were asked to file their replies to the allegations made against them by the girl students. Prior to calling the boy students, the Inquiry Committee had called the ten girls and recorded their statements. After making the necessary inquiry and considering the statements of students, the Committee came to the conclusion that three out of four boys had taken part in the raid that night. They made recommendations on the basis of which the Principal expelled the boys for two academic sessions. The expelled students filed the Writ Petition in the High Court submitting that the principles of natural justice had been violated as the witnesses had not been examined in their presence and nor were they permitted to cross-examine the witnesses and even the Committee's report was not made known to them. The High Court dismissed the petition. While dismissing the Appeal, the Supreme Court observed :-

"..................In the present case the complaint made to the Principal related to an extremely serious matter as it involved not merely internal discipline but the safety of the girl students living in the Hostel under the guardianship of the college authorities. These authorities were in loco parentis to all the students - male and female who were living in the Hostels and the responsibility towards the young girl students was greater because their guardians had entrusted them to their care by putting them in the Hostels attached to the college. The authorities could not possibly dismiss the matter as of small consequence because if they did, they would have encouraged the male student rowdies to increase their questionable activities which would, not only, have brought a bad name to the college but would have compelled the parents of the girl students to withdraw them from the Hostel and, perhaps, even stop their further education. The Principal was, therefore, under an obligation to make a suitable enquiry and punish the miscreants.

But how to go about it was a delicate matter. The Police could not be called in because if an investigation was started the female students out of sheer fright and harm to their reputation would not have cooperated with the police. Nor was an enquiry, as before a regular tribunal, feasible because the girls would not have ventured to make their statements in the presence of the miscreants because if they did, they would have most certainly exposed themselves to retaliation and harassment thereafter. The college authorities are in no position to protect the girl students outside the college precincts. Therefore, the authorities had to devise a just and reasonable plan of enquiry which, on the one hand, would not expose the individual girls to harassment by the male students and, on the other, secure reasonable opportunity to the accused to state this case.

Accordingly, an Enquiry Committee of three independent members of the staff was appointed. There is no suggestion whatsoever that the members of the Committee were anything but respectable and independent. The Committee called the girls privately and recorded their statements. Thereafter the students named by them were called. The complaint against them was explained to them. The written charge was handed over and they were asked to state whatever they had to state in writing. The Committee were not satisfied with the explanation given and thereafter made the report.

We think that under the circumstances of the case the requirements of natural justice were fulfilled.  ............

............However, unsavoury the procedure may appear to a judicial mind, these are facts of life which are to be faced. The girls who were molested that night would not have come forward to give evidence in any regular enquiry and if a strict enquiry like the one conducted in a court of law were to be imposed in such matters, the girls would have had to go under the constant fear of molestation by the male students who were capable of such indecencies. Under the circumstances the course followed by the Principal was a wise one. The Committee whose integrity could not be impeached collected and sifted the evidence given by the girls. Thereafter the students definitely named by the girls were given an opportunity to state their case. We do not think that the facts and circumstances of this case require anything more to be done."

The next contention of the learned Senior Counsel for the petitioner is that even the requirement of Article 81(b) of the Education Code had not been complied with inasmuch as the Commissioner did not record reasons in writing why it was not practicably reasonable to hold the inquiry. We find no merit in this contention. A bare perusal of the order passed by the Commissioner clearly indicates that the Commissioner clearly recorded in writing that he was satisfied that the regular inquiry should be dispensed with because that would not be fair to the students as it will cause serious embarrassment to the girl students and will also vitiate the school atmosphere. The same reasons were contained in the order of termination in The Director, Navodaya Vidyalaya Samiti (supra) and they were found to be valid reason. We are, therefore, of the opinion that for good and sufficient reasons recorded in writing, the Director had dispensed with the regular enquiry.

For all the reasons indicated above, there is no merit in this petition. It is, accordingly, dismissed.

Date-1.12.2006

GS


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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