Hp Sharma vs Kvs & Anr.
2011 Latest Caselaw 4431 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) No.2471/2005

%                       Date of Decision: 12.09.2011


HP Sharma                                                   .... Petitioner

                       Through Nemo.

                                  Versus

KVS & Anr.                                               .... Respondents


                       Through Dr.   Puran  Chand   Advocate             for
                               Mr.S.Rajappa  Advocate   for             the
                               Respondents.



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.       Whether reporters of Local papers may             NO
         be allowed to see the judgment?
2.       To be referred to the reporter or not?            NO
3.       Whether the judgment should be                    NO
         reported in the Digest?

ANIL KUMAR, J.

*

1. The petitioner, has challenged the order dated 14th October, 2004

passed by the Central Administrative Tribunal, Principal Bench in O.A

No.88/2004 titled as „Sh. H.P. Sharma v. NVS and Anr.‟ dismissing the

original application of the petitioner against the order of his dismissal

from service, but giving him the liberty to submit a fresh unconditional

resignation with effect from the date of the order of termination i.e. 13th

June 2003.

2. The brief facts to comprehend the disputes between the parties

are that the petitioner had joined as Principal on deputation in the

Navodaya Vidyalaya Samiti, the respondent institution, on 21st July,

1988 and he was subsequently absorbed as a permanent employee on

1st September, 1992. Thereafter, he was transferred from Rajgarh

Navodaya School of Madhya Pradesh State to Javahar Navodaya

Vidyalaya, Niwarsi Distt. Kurushetra, Haryana on 30th April, 1993.

3. On 20th December, 1993, a notification was issued by the

respondents by which the provisions of CCS (CC&A) Rules, 1965 as

applicable to the employees of the respondent institution, relating to the

procedure for imposing penalties, was amended to provide for special

procedure in certain types of cases as enunciated in the Notification.

4. That on 28th January, 2003 the petitioner had received a

complaint from a girl student namely Santosh (name changed) of Class

X, against the Mathematics teacher, Sh. Rajesh Kumar, alleging

molestation by the said teacher. Therefore, the petitioner had issued a

direction to the Vice-Principal, Miss Anju Gupta, to conduct an inquiry

in respect of the allegations made by the child. A copy of the complaint

dated 28th January, 2003 written in Hindi by the student was also

forwarded. Consequently, the petitioner learnt that the concerned

teacher, Mr. Rajesh Kumar, was transferred to Sikkim as „Punishment

Transfer‟.

5. As per the petitioner, since he wasn‟t keeping good health, he

proceeded to take leave w.e.f 3rd February, 2003 to 15th February, 2003

by submitting an application on 2nd February, 2003 to the Deputy

Director. Allegedly, during the absence of the petitioner, certain

evidence was procured against him and without testing the authenticity

of the evidence, respondent No. 2 issued a suspension order against the

petitioner on 4th February, 2003 wherein it was mentioned that "a

disciplinary proceeding against Sh. HP Sharma (Petitioner), Principal,

JNV-Kurukshetra (Haryana) is contemplated". The said order of

suspension was received by the petitioner on 8th February, 2003.

6. On 2nd February, 2003 the petitioner had submitted his

resignation from the post of Principal and the letter was addressed to

the Deputy Director, Navodaya Vidyalaya Samiti, Regional Office

Chandigarh.

7. Subsequently, the petitioner came to know that he was placed

under suspension on the basis of a complaint alleged to be made by a

girl student imputing immoral sexual behavior against him on 22nd

January, 2003. As per the petitioner, he wasn‟t even present on the

said date from 3 PM to 9 PM. A summary inquiry into the incident was

conducted on 11th March, 2003.

8. The girl student herself withdrew her complaint on 10th February,

2003, which was even supported by her father who allegedly claimed

that the complaint was totally false and as a result of a conspiracy

against the petitioner in a letter dated 4th February, 2003 written to the

Deputy Director NVS, Chandigarh for the withdrawal of the complaint

made by his daughter.

9. However, on inquiry it was held by the Assistant Director that

the allegations against the petitioner stood proved and that the

complainants had wished to withdraw their complaint due to the stigma

attached to the allegations and not because the allegations were untrue.

10. That in the circumstances, the respondents by order dated 13th

June, 2003 terminated the services of the petitioner. The order also

stipulated that "it is felt that it is not expedient and practicable to hold

regular inquiry under the provisions of the CCS(CC&A) Rules, 1965 in

the matter on account of serious embarrassment it will cause to the

concerned student and her guardians". The said punishment order was

said to be in exercise of the powers conferred under the provisions of

the notification No. F 14-2/93-NVS(Vig.) dated 20th December, 2003.

11. Aggrieved by the order of termination, the petitioner approached

the Appellate Authority on 26th June, 2003, however the appeal was

also dismissed by order dated 22nd December, 2004. Meanwhile, an

affidavit dated 22nd October, 2003 was submitted by the father of the

complainant, Sh. Tejender Kaur, stating that the said complaint had

been given under the pressure of notorious elements and was

withdrawn thereafter.

12. Aggrieved by the above said orders the petitioner moved the

Tribunal by filing an original application bearing O.A. No. 88/2004.

However, the Tribunal also dismissed the original application of the

petitioner by order dated 14th October, 2004. Thereafter, the petitioner

filed a review application before the Tribunal on 1st January, 2004. The

review application was also dismissed by the Tribunal by order dated

22nd December, 2004.

13. Before the Tribunal, the petitioner had contested the order of

termination on the grounds that the appeal had been dismissed by the

same authority who had passed the earlier order of termination; that

the girl student as well as her father had already informed that they

had made the complaint in question, which is the sole basis for the

penalty order, that the same had been written under pressure and on

instigation of some notorious elements; and that the notification which

permits summary termination of the service dispensing with the

detailed inquiry dated 20th December, 1993 is ultra vires to the

provisions of the Constitution.

14. Per contra the respondents, by a reply dated 2nd February, 2003,

had contended that the petitioner had submitted his resignation from

the post of Principal and the said letter was addressed to Deputy

Director, Navodaya Vidyalaya Samiti, and thereafter, the petitioner had

proceeded on leave. It was also contended that the act of procurement

of letter from the girl student only confirmed the fact that the incident

had taken place. It was also urged that the notification dated 20th

December, 2003 is valid and inconsonance with the principles laid

down in the Constitution.

15. After carefully taking into consideration the pleas and contentions

raised by both the parties, the Tribunal dismissed the OA of the

petitioner by order dated 14th October, 2004. The Tribunal rejected the

contention of the petitioner that the authority who passed the order of

punishment was the same as the authority who passed the order in

appeal, as on perusing the said orders it held that while the penalty

order was passed by the Commissioner of Navodaya Vidyalaya Samiti,

the appellate order had been passed by the Chairman of the respondent

institution.

16. With regard to the contention that the very fact that the girl

student and her father had given in writing as well as an affidavit that

the said complaint was made under pressure and on the instigation of

notorious elements, ought to be ground in itself to reject the said

complaint and consequently the Appellate Authority should have set

aside the penalty order, the Tribunal observed that in light of the facts

and circumstances the said affidavits seem to be procured affidavits

and that no reliance could be placed on the same. The reasoning of the

Tribunal is as follows:

"10. On appraisal of the fact, we find that this clearly is an event/fact which should be ignored. Once the complaint was made by the girl student, the applicant resigned from the service. However, an inquiry was conducted. The applicant was placed under suspension when, in fact, he proceeded on leave. The very fact that he immediately resigned indicates volumes about the correctness of the allegations made by the girl student. After months of the same, the affidavit which is now being produced, must be taken to be a procured affidavit. At this stage, thus, the same deserves to be ignored."

17. The Tribunal also carefully reviewed the notification dated 20th

December, 1993. The Tribunal placed reliance on the judgments of

Avinash Nagra v. Navodaya Vidyalaya Samiti & Ors. (1997) 2 SCC 534

and Director Navodaya Vidylaya Samiti & Ors. v. Babban Prasad Yadav

& Anr. 2002 (2) SCALE 400 wherein it was held that with a view to

ensure the safety and security of the girl students and to protect their

modesty and prevent any unnecessary exposure at an enquiry in

relation to the conduct of a teacher resulting in sexual harassment, it

would be advisable for the Director to take a decision based on fact-

situation in order to determine whether a summary enquiry is

necessary or if the services of the delinquent may be dispensed with by

giving pay in lieu of notice. The Tribunal, therefore, held that there was

no reason to infer that the said procedure prescribed in the notification

dated 20th December, 1993 is ultra vires to the provisions of Article 311

of the Constitution.

18. The Tribunal, however, relying on Babban Prasad Yadav & Anr.

(supra) wherein it was held that an opportunity should be given to the

delinquent to tender unconditional resignation with effect from the date

of the order of termination, directed the petitioner to submit an

unconditional resignation from the date of the order of termination and

disposed of the said original application.

19. It is against the above mentioned orders that the petitioner has

sought to approach this Court under its writ jurisdiction. The petitioner

in his petition has primarily reiterated the contentions made before the

Tribunal and in addition contended that the Tribunal greatly erred in

placing reliance on the case of Babban Prasad Yadav as the facts of the

case were clearly distinguishable from the present case since in that

case very serious allegations were made against the delinquent and

there was sufficient material to support the allegation and furthermore

the delinquent was a probationer and therefore he could not have the

protection of Article 311(2) of the Constitution of India.

20. During the pendency of the present petition it was contended on

behalf of petitioner that he would be entitled for all the terminal

benefits. The counsel for the respondents, however, on instructions,

had stated that the respondents are not inclined to grant any terminal

benefits to the petitioner and relied on 2004 (2) SCALE 15, Director,

Navodaya Vidyalaya Samiti Ors. v. Babban Prasad Yadav & Anr. where

it was held that the substitution of the letter of termination by the letter

of resignation will not entitle the employee for any terminal benefits.

21. The writ petition was taken up for hearing on 5th September,

2011, however, no one had appeared on behalf of the petitioner.

However, no adverse order was passed in the interest of justice and the

matter was allowed to remain on board in the category of „Regular

Matters‟. The matter was again taken up on 6th September, 2011 and

again no one appeared on behalf of the petitioner. Again no adverse

order was passed against the petitioner in the interest of justice.

22. Today again, no one is present on behalf of the petitioner. In the

circumstances this court is left with no option but to dismiss the writ

petition in default of appearance of the petitioner and his counsel. The

writ petition is, therefore, dismissed in default. All the pending

applications are also disposed of.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

SEPTEMBER 12, 2011.

rs