V.K. Matta vs Chief Secretary, Govt. Of Nct Of ...
2011 Latest Caselaw 2309 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 29th April, 2011.

+                              W.P.(C) 462/2011

%        V.K. MATTA                                              .... Petitioner
                            Through:      Dr. J.C. Madan, Adv.

                                     Versus

         CHIEF SECRETARY, GOVT. OF NCT OF DELHI
         & ORS.                                 ....Respondents
                     Through: Ms. Megha Bharara, Adv. for Ms.
                              Ruchi Sindhwani, Adv. for R-1 & 2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    NO

2.       To be referred to the reporter or not?             NO

3.       Whether the judgment should be reported            NO
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The writ petition impugns the order dated 12th November, 2010 of

the Delhi School Tribunal dismissing the appeals of the petitioner against

the orders of suspension and removal from service of the petitioner,

employed as a Cricket Coach-cum-Office Assistant in the respondent no.3

Modern Public School, Shalimar Bagh, Delhi.

2. The petitioner was appointed to the respondent no.3 School vide

appointment letter dated 18th June, 1996 and his services were confirmed

vide letter dated 1 st July, 2000. The respondent no.3 School planned an

excursion to Kullu-Manali and Rohtang Pass for the students of Class IX

to Class XII from 26 th May, 2007 to 31st May, 2007. The petitioner was

one of the five teachers who accompanied the students on the said

excursion. A show cause notice dated 28 th June, 2007 was issued to the

petitioner stating, that one of the female teachers accompanying the

students had complained against the petitioner of non-cooperation and of

non-performance of duty as teacher-cum-guardian to the students and of

behaviour unacceptable to a female colleague; that an anonymous fax was

also received by the respondent no.3 School complaining of misconduct

involving moral turpitude by the petitioner during the said excursion; it had

also been noticed that the students had taken/purchased/collected CDs of

pornographic movies and viewed the same during the excursion and the

petitioner rather than discouraging the students had encouraged them and

joined them in the same. The female colleague of the petitioner also

complained of sexual harassment and misbehaviour on the part of the

petitioner and a Preliminary Inquiry Committee and a Sexual Harassment

Committee had been constituted which had investigated the matter and had

found the petitioner from dereliction in performance of duty, negligence as

a teacher-cum-guardian and having committed misconduct, moral

turpitude having caused sexual harassment and indulged in indecent

behavior towards female colleague. The petitioner was accordingly asked

to show cause.

3. The petitioner was subsequently served a charge sheet and an

Inquiry Officer appointed. The Inquiry Officer held the charges aforesaid

to have been made out and the Disciplinary Authority proposed imposition

of major penalty i.e. of removal from service which shall not be

disqualification for future employment in any other recognized private

school, on the petitioner and after considering the representation of the

petitioner, confirmed the said punishment.

4. The School Tribunal negatived the contention of the petitioner of the

constitution of the Preliminary Inquiry Committee being illegal. It was

held that a Preliminary Inquiry Committee is only a fact finding

Committee and preceding the Disciplinary Committee constituted under

Rule 118 of the Delhi School Education Rules, 1973. The contention of

the petitioner that charges were vague and unspecific was also found to be

without any merit. The Tribunal also found that the case of the petitioner

making sexually coloured remarks and of having caused sexual harassment

to the female colleagues was sufficiently established. The other contention

of the petitioner of his being the non-teaching staff and having been

wrongly taken on the excursion was also found to hold no water.

Similarly, no basis was found for the claim of the petitioner of his request

for change of the Presenting Officer having not been allowed and of the

Inquiry Officer having held certain documents to be irrelevant and of the

necessary witnesses having not been examined. It was also held that

though as per the judgment dated 27th August, 2010 of the Full Bench of

this Court in O.Ref.1/2010 titled Presiding Officer, Delhi School Tribunal

Vs. GNCTD the appeal against suspension was not maintainable but the

same had in any case become infructuous upon the removal order having

been made.

5. The counsel for the petitioner has at the outset argued that the

petitioner was being prosecuted for union activities in the respondent no.3

School. It is argued that on the complaint of the Union, the Directorate of

Education had found the Principal of the respondent no.3 School to have

been not duly appointed and for the said reason the respondent no.3 School

Management was vindictive towards him and had sent him on the

excursion with the motive of framing him.

6. Not finding any such plea to have been taken in the reply to the

show cause notice or during the course of enquiry/disciplinary

proceedings, it was enquired from the counsel for the petitioner as to how

the same could be permitted to be taken now. The counsel for the

petitioner has fairly admitted that no such plea was taken at any time till in

the appeal to the Tribunal. A perusal of the documents filed shows that the

complaint against the Principal was by the Staff Association of the

respondent no.3 School. There is no document whatsoever to show that

the petitioner was an office bearer of the Staff Association or was the

moving force thereof. Merely because the Staff Association had taken up

cudgels against the Principal and/or the Management of the respondent

no.3 School, would not entitle the petitioner to vitiate the disciplinary

proceedings against him especially when the complaints against the

petitioner were inter alia from other members of the Staff Association and

when the petitioner did not choose to take the said plea during the

disciplinary proceedings. The normal course of human behavior required

the petitioner, if of the opinion that he was being victimized, to

immediately take the said ground.

7. The counsel for the petitioner has otherwise argued the writ petition

as an appeal and did not make any argument whatsoever as to any defect in

the enquiry proceedings. It is the settled principle of law that interference

by this Court in the exercise of powers under Article 226 of the

Constitution of India is limited to overseeing that the enquiry into the

misconduct is fair and sufficient opportunity has been given to the

delinquent to defend himself. Else, this Court is not to sit in appeal over

the findings of the Disciplinary Committees. Significantly, the

constitution of the Disciplinary Committee itself is provided for under the

Rules and is to comprise of the nominees of the Directorate of Education

also.

8. The Eleven Judges Bench of the Supreme Court in T.M.A. Pai

Foundation Vs. State of Karnataka (2002) 8 SCC 481 observed that such

disputes relating to Schools ought not to come before the Courts and

suggested the constitution of a Tribunal. It was in pursuance to the said

suggestion that the School Tribunal came to be constituted. The

Legislature has not provided for any appeal against the order of the School

Tribunal, findings of which are intended to be final subject of course to the

powers of this Court under Article 226 of the Constitution. However, in

garb thereof this Court cannot enter into the same exercise to avoid which

the constitution of the School Tribunals was suggested by the Apex Court.

9. The counsel for the petitioner has also argued that no disciplinary

proceedings could have been initiated against the petitioner on an

anonymous complaint. No merit is found in the same inasmuch as during

the inquiry not only the colleagues of the petitioner but also the students

deposed against the petitioner.

10. Though the counsel for the petitioner upon being told that the

challenge could only be on the basis of the error if any in the procedure

followed made a faint attempt to challenge the same also but there is no

basis therefor in the writ petition also, save for averring that inspite of his

having expressed apprehension of bias against the Inquiry Officer and the

Presenting Officer, the same were not changed (however the reason for

bias on the part of the Inquiry Officer is not stated); inspection of certain

documents having not been given for the reason of the same being

irrelevant (it is however not the case that the said documents were

otherwise relied upon by the Inquiry Officer or the Disciplinary

Authority); of the proceedings having been conducted under influence of

the Disciplinary Authority; of the witnesses being tendered for cross-

examination after their previous statements had been read over to them and

having been permitted to improve upon their previous statements.

However, no arguments as aforesaid on the said pleas were raised.

11. There is no merit in the writ petition; the same is dismissed. No

order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) APRIL 29, 2011 bs (Corrected and released on 11 th May, 2011)