Delhi High Court

Udai Singh vs Kendriya Vidayalaya Sangathan on 28 May, 2015

Author: Kailash Gambhir

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                  Judgment delivered on: May 28, 2015.
+       W.P. (C) 8440/2011 & C.M. APPL. No. 1370/2012
        UDAI SINGH                                        ..... Petitioner
                         Through:    Ms. Jyoti Singh, Senior Advocate
                                     with Mr. Sajjan Kumar Singh and
                                     Ms.Tinu Bajwa, Advocate.
                         Versus

        KENDRIYA VIDAYALAYA SANGATHAN           ..... Respondent
                     Through: Mr. S. Rajappa, Advocate.

        CORAM:
        HON'BLE MR. JUSTICE KAILASH GAMBHIR
        HON'BLE MR. JUSTICE I.S. MEHTA

                             JUDGMENT

% KAILASH GAMBHIR, J.

1. "Guru Govind Dou Khade, Kakke laagun paye..Balihari guru

aapne, govind dio bataye." This immensely popular & often quoted

couplet by Poet-saint Kabir has a profound foothold. It says I face both

God and my guru, who should I bow first? I first bow to my guru because

he's the one who showed me the path to God. The importance given to a

teacher or a guru in our society thus needs no special mention. Since

times immemorial, the relationship between teachers and students has

been venerated. It is considered to be a pious bond which is further

strengthened by the knots of trust, respect and utmost devotion. Teachers

play a pivotal role in shaping a child's life and to help decide the course

which the child would eventually take in his life path. They are the

torchbearers who lead from the front and mould a child like a potter

moulds the clay to give it shape and being. Teachers have been known to

influence their students by shaping their rational and moral values and

hence, play an important role in moulding the society as a whole. But

with the changing times, this pious and sacramental bond has also come

under the scanner. Now-a-days even this revered relationship has become

a victim of covetousness, lust and contemptible desires, because of which

the students do not consider their teachers as their "gurus" in the true

sense of the word. The teachers are also heard of exploiting students,

going to the extent of sexually abusing them. This faith between them has

been crushed with impunity with the protector turning into a beast.

Similar are the facts of the case at hand wherein the fate of this girl was

debauched at the hands of her teacher's unwanted desires who sexually

harassed her on the pretext of tutoring. She was subjected to harassment

at the hands of someone who instead should have been a concierge, a

protector.

2. By way of the present Writ Petition, the petitioner seeks to

question the tenability of the order dated 05.05.2010 passed by the

learned Central Administrative Tribunal (hereinafter referred to as the

learned tribunal), Principal Bench, New Delhi thereby dismissing his

application being O.A.No. 1907/2010 preferred by the petitioner. The

petitioner has also assailed the order dated 26.07.2011 passed by the

learned Tribunal in R.A. No.231/2011 whereby the Review Application

preferred by the petitioner was also dismissed.

3. Before we deal with the various contentions raised by the parties, it

would be pertinent to narrate the facts of the case. The petitioner herein

was employed as a Post Graduate Teacher (PGT) with the respondent

School. As per the petitioner he had a meritorious record as a teacher

right from the date when he was selected for the post of TGT in the

Kendriya Vidyalaya Sangathan (hereinafter referred to as KVS). As per

the petitioner he was lauded not only by the Principal of the school where

he was posted from time to time but also by the administrative officer of

the KVS. In his twenty seven years of service with the KVS, on

22.01.2008 for the first time a complaint on 22.01.2004 was made against

him, by a girl student of class XII, alleging sexual harassment. On the

basis of the complaint, the petitioner was suspended on 06.06.2008. In

order to put forward his case and specially for seeking personal hearing,

the petitioner made a detailed representation to the Assistant

Commissioner of KVS (Delhi Region). An enquiry was initiated against

the petitioner, without divulging the details of the complaint. When he

was asked to join the enquiry, virtually all the witnesses had already been

examined. Although, 140 students of class XII and altogether 80 teachers

were available to bring correct facts before the enquiry committee, but

none of those were examined as witnesses. On the basis of the report

given by the enquiry committee, the service of the petitioner was

terminated by the Commissioner, KVS, vide order dated 24.10.2008.

Pursuant to such order, an appeal was preferred by the petitioner before

the Vice-Chairmen (Appellate- Authority), KVS and the same was also

dismissed vide order dated 4th February, 2009, whereby the termination

order passed by the Commissioner, KVS was confirmed.

4. That being aggrieved by the order of termination passed by the

Commissioner, KVS as well as of the Appellate Authority, the petitioner

had preferred an OA being No. 1907 of 2010 before the Ld. Tribunal,

Principal Bench, New- Delhi. The said OA of the petitioner was

dismissed by the learned Tribunal vide order dt. 05.05.2010. That a

Review Application being RA NO. 231/2011 was also preferred by the

petitioner, but the same was also dismissed vide order dated 26.07. 2011.

Left with no option, the petitioner is now before this Court to assail the

legality and correctness of both the said orders passed by the learned

Tribunal in the Original Application as well as the Review Application.

Hence, the Present Writ Petition.

5. Mr. Sajjan Kumar Singh, Advocate representing the petitioner

vehemently contended that the petitioner was not given any opportunity

to put forth his defence as the Enquiry proceedings directed against him

by the respondent were conducted in his absence without even affording

any opportunity to cross-examine the witnesses examined by the enquiry

committee. The learned counsel for the petitioner further submitted that

the petitioner was informed by the Principal of the school at about 4 p.m.

that against him an Enquiry Committee has been constituted but no prior

information was given to him and when the petitioner had reached the

school, by that time, the enquiry proceedings were over with examination

of the witnesses. The learned counsel for the petitioner further submitted

that the petitioner was asked by the enquiry committee to give his written

statement without even supplying him with the copy of the complaint or

the statements made by the witnesses and not even the names of the

witnesses examined by the committee were disclosed to him. In the

absence of this basic material, the petitioner was made to submit his

reply, totally unaware of the contents of allegations levelled against him

by the complainant. Counsel also submitted that the records of the

enquiry proceedings itself would reveal that the petitioner was not present

in the enquiry proceedings and the record also shows that no such notice

was sent to the petitioner through which he could be informed to attend

the enquiry proceedings. Counsel thus submitted that there is a blatant

violation of the principles of natural justice on the part of the respondent

in not giving any opportunity to the petitioner to explain his case before

the members of the enquiry committee and therefore, any findings

recorded by the enquiry committee against the petitioner are illegal and

against the basic principles of conducting any kind of enquiry which may

be summary in nature. Counsel also submitted that the Tribunal has not

appreciated the fact that the complainant continued to take extra classes

from the petitioner alongwith other students after lodging the complaint

of sexual harassment against him and had such a complaint on the part of

the complainant been correct then neither the complainant would have

attended the extra class nor would her family members have permitted

her to visit the residence of the petitioner for the said extra classes.

Counsel also submitted that the learned Tribunal also failed to appreciate

that the petitioner had a clean track record of dedicated service as a

teacher with the respondent and never before any such complaint by any

student either girl or boy was lodged against him. Counsel further

submitted that the learned Tribunal also failed to appreciate that the

witnesses examined in the summary enquiry were inimical to him as the

petitioner had made certain complaints against them due to which they

had instigated the complainant to rope in the petitioner to face such a

humiliating charge of immoral behaviour. Counsel also argued that the

learned Tribunal has not appreciated the legal principles laid down by the

Hon'ble Supreme Court in its various decisions in the right perspective as

none of the decisions of the Hon'ble Supreme Court approved any kind of

summary enquiry without the participation and grant of reasonable

opportunity to the delinquent. Based on these submissions the learned

counsel for the petitioner strongly urged that the order passed by the

learned Tribunal is irrational, perverse and illegal on the very face of it

and the same may be set aside.

6. Repudiating the aforesaid submissions made by the petitioner, Mr.

Rajappa, the learned counsel for the respondent vehemently defended the

reasoning given by the learned Tribunal in both the orders. Mr. Rajappa

submitted that it is a clear case of immoral conduct of the petitioner, by

sexually harassing a girl student and the same was fully established by the

enquiry committee set up against him. Counsel also submitted that the

petitioner had duly participated in the enquiry proceedings and the

records of the enquiry proceedings clearly show the presence of the

petitioner during the enquiry proceedings.

7. Counsel for the respondent also submitted that at every stage, the

petitioner was given ample opportunity to present his defence as not only

was he allowed to participate in the enquiry proceeding but also before

taking a decision to terminate his services, detailed show cause notice

was served upon him to which he had submitted his reply. Counsel also

submitted that at no stage the petitioner had made a request to cross

examine the witnesses as were examined by the enquiry committee.

Counsel also submitted that the petitioner in fact had admitted his guilt

and this was duly established when in his letter dated 22.01.2008, he

himself stated that he shall not behave in such a manner with the

complainant. Counsel also submitted that even in the letter dated

22.01.2008, sent by the complainant to the Principal, she had reiterated

her confirmation about the immoral behaviour of the petitioner as earlier

informed by her in her complaint. Counsel also supported the decision

taken by the Commissioner of the respondent whereby he dispensed with

holding a regular enquiry in accordance with the CCS (CCA) Rules,

1965, looking into the tender age of the girl student who had filed the

complaint and also to save her from any kind of embarrassment or

humiliation. Counsel thus justified the decision of the respondent in

conducting summary enquiry against the petitioner for his immoral

behaviour in terms of Article 81(d) of Education Code for Kendriya

Vidyalaya Sangathan. Counsel also submitted that there was no violation

of principles of natural justice as have been complained by the petitioner

as he had duly participated during the course of enquiry proceedings and

before passing an order of termination, show cause notice was served

upon him. Based on these submissions, the learned counsel for the

respondent pleaded for upholding the orders passed by learned Tribunal.

8. We have heard the submissions made by the learned counsel for

the parties and also gone through the material on record and the

judgments cited by them.

9. 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. These

lines undoubtedly explain to us the importance of a teacher and a guru

and how in our society we as humans rely on their conduct and character

but to our utter surprise and shock, this very foundation is trembling in its

roots. It is quite alarming to read about cases where for mere lust and

pleasure, a teacher, a guru, whom we call a protector, has fallen below the

standards expected of him.

10. In this case, the petitioner being a physics TGT teacher at Kendriya

Vidyalaya School was giving extra classes to some of the students and

one amongst them was the girl student of 12th standard. This student

lodged a complaint dated 4.2.2008 with the Principal of the School

raising a grievance against the immoral conduct of the petitioner. The

extract of the statement as lodged by the complainant vide her complaint

dated 22.01.2008 and 04.02.2008 is reproduced as under:-

"I am a student of Class XII-C of Kendriya Vidyalaya, this to any one lest he would cut her marks. When Gurgaon. I used to go to Shri U.S. Yadav asked me to have sexual relation, also told me that I would not confide I refused him, he detailed three boys to pressurize me to complete his camel need. Whenever I

go for checking my note book, he used to say to me that when I would do so. He also told me that he had already got operation and nothing would happen to her. He would disclose the question papers of Board Exam. He also harass my father asking him over phone to withdraw complaint. He boasted himself that he is head of CBSE and he could reduce the marks. I am embarrassed due his behaviour, and action be taken against him."

11. A separate complaint was also lodged by one Mr. M.K. Malik,

social activist concerning the immoral behaviour of the petitioner with the

girl student and also regarding the mismanagement of the respondents'

school. Acting on such a complaint, the Commissioner of the respondent

school gave a direction to the Assistant Commissioner to enquire into the

matter and submit his report.

12. The matter was accordingly referred to the complaint registering

committee for investigation and vide order dated 06.02.2008, as per the

respondent, the petitioner was placed under suspension. The enquiry

committee comprised of four members viz. Smt. Neelam Katara,

Education Officer, KVS (DR), Sh. Dhir Singh, Principal KV No.2, Delhi

Cantt., Smt. Alka Zadoo, Principal KV, NTPC, Badarpur and Dr. A.

Padmavati (NGO). The enquiry committee had interaction with the

concerned teachers and staff members including the complainant and her

father and this list also included the name of the petitioner.

13. On perusal of the original record produced before the Court, we

find that the petitioner was one of the members with whom the enquiry

committee had interacted. The enquiry committee based on the statement

of the complainant girl, her father and other members of the staff and

after conducting due enquiry came to the conclusion that the petitioner

had misused his position as a teacher. The findings and conclusion of the

enquiry committee are found to be recorded in the original records, the

same is reproduced as under:-

"The findings and conclusion of the Inquiry committee.

1. After hearing various versions of concerned teachers and staff, the Committee unanimously came to the conclusion that Mr. U.S. Yadav, PGT (Phy) sexually harassed Km. Rekha during the academic term in Kendriya Vidyalaya AFORESAID, Gurgaon continuously. Keeping in view the above behaviour of Shri U.S. Yadav, PGT (Phy), and the conduct was found entirely unbecoming of a teacher who has been entrusted with the task of molding young psyche.

2. When Km.Rekha's predicament had come to the notice of the Principal, Vidyalaya level enquiry have been conducted verbally and KVS, R.O. Delhi have been apprised of the matter for further action.

3. It has been notice that the student Km. Rekha continued to remain scared and in mental trauma which resulted in deterioration of her academic performance which is visible in her pre-board exam due to unholy/unbecoming conduct of U.S. Yadav." From the foregoing discussion given from inquiry record and from the findings, it is evident that Shri U.S. Yadav has demonstrated immoral behaviour of sexual nature toward Km. Rekha to the extent he had demanded sexual favour from Km. Rekha of Class XII C. Such behaviour shown by Shri Yadav is abominable act in the educational institution that too in co-

education system where it is expected from a teacher to be role model and responsible for moulding the personality of children. In view of this, it is a fit case where Commissioner would like to invoke article 81(b) of the Education Code for awarding deterrent punishment.

As per provision, before termination of his service, it is necessary to issue show cause notice."

14. Perusal of the aforesaid original record clearly belies the stand

taken by the petitioner that he was not present at the time of the enquiry

proceedings or that he was not exactly aware of the nature of the

complaint lodged against him by the complainant. The enquiry committee

in fact had dealt with the representation dated 25.02.2008 submitted by

the petitioner against the order of suspension and in fact the enquiry

committee had also gone through the personal file of the petitioner before

taking a final view on the said immoral conduct of the petitioner. We do

not find from this record that any request was made by the petitioner that

he was not told about the nature of allegations levelled by the

complainant against him nor do we find any request made by the

petitioner to cross examine the witnesses examined by the enquiry

committee.

15. The learned Tribunal after taking note of the contents of

petitioner's representation dated 25.02.2008 and 02.06.2008 correctly

held that on perusal of the contents of these representation, it is quite

clear that the petitioner was fully aware of the allegations made against

him by the complainant and therefore, raising a plea of violation of

principles of natural justice has no bearing. The learned Tribunal also

referred to the letter of apology dated 22.1.2008 written by the petitioner

wherein he had promised not to misbehave with any student in future

indicates that he indirectly admitted the incident, otherwise he would not

have given such an assurance. The learned Tribunal also referred to the

letter dated 22.01.2008 written by the complainant wherein she referred

to the apology tendered by the petitioner and for the complainant to not to

precipitate the matter further but at the same time she had reiterated that

her complaint against the petitioner was absolutely correct. It is not in

dispute that based on the findings of the enquiry committee a detailed

show cause notice was served upon the petitioner to which he had filed

his reply dated 18.08.2008 and it is after taking into consideration the

stand taken by the petitioner in his reply, that the order dated 24.10.2008

was passed by the Competent Authority to terminate the services of the

petitioner. Contents of the show cause notice and the termination order

are not required to be repeated as the same have already been reproduced

in the impugned orders.

16. The learned Tribunal after placing reliance on some of the

authoritative pronouncements of the Hon'ble Supreme Court holding the

field i.e. in the case of State Bank of Patiala & Ors. Vs. S.K. Sharma,

1996 (3) SCC 364; E.P. Royappa vs. State of Tamil Nadu, AIR 1974

SC 555; Avinash Nagra vs. Navodaya Vidyalaya Samiti and Others,

1997 (2) SCC 534; Director, Navodaya Vidyalaya Samiti and others vs.

Babban Prasad Yadav, 2002 (13) SCC 568; and Jwala Singh vs. Union

of India & ors, 120(2005) DLT 382, reached to a conclusion that the

respondent shall duly comply with all the preconditions as were laid

down by the Hon'ble Supreme Court in Babban Prasad Yadav

case(supra). Regular enquiry in this case was not held under CCS (CCA)

Rules and rightly so, as in the complaint concerning immoral and

unreasonable behaviour of the petitioner causing sexual harassment to the

student of his class, in such like cases under Article 81(b) of Education

Code of Kendriya Vidyalaya Sangathan, there is a provision for holding

summary enquiry. As also holding a regular enquiry can be font of

serious embarrassment and harassment to the complainant.

17. For better appreciation, Article 81(b) of the Education Code of

Kendriya Vidyalaya Sangathan is reproduced as under:-

"81(b) Termination of Services of an employee found guilty

of immoral behaviour towards Students Where the Commissioner if 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 accordingly 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 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 services. Note: Wherever and as far as possible the summary inquiry against the complaint of immoral behaviour by a teacher towards the student of Kendriya Vidyalaya may be got investigated by the Complaints Redressal Committee constituted in the regional offices."

18. The complainant was a girl student of 12th class and in her

complaint, she had levelled allegation of immoral behaviour on the part

of the petitioner who being in a dominating position was trying to

pressurise the complainant to have sexual relationship with him and

therefore, in our view, the present case was a fit case where Article 81(b)

of the Education Code of Kendriya Vidyalaya Sangathan was invoked by

the Commissioner of the respondent as in a case of this nature holding of

regular enquiry under CCS (CCA) Rules 1965 can result in causing

serious embarrassment to the complainant and her family members.

19. It is the responsibility and duty of the management of the school

and colleges to protect young children, in particular the female child.

Even the enquiry conducted in such like matters should always keep in

mind the honour, self respect and dignity of the female child and how

harrowing the experience could have been for her. Dealing with the issue

of "outraging the modesty" of a girl student, the Division bench of this

court in the case of Jwala Singh V. UOI and Ors. (supra) placing

reliance on the judgment of the Hon'ble Supreme Court in the case of

Avinash Nagra (supra) reiterated as under:

"8. It is true that no regular inquiry was held, but it does not mean that the petitioner was not heard. He was given ample opportunity to present his defense. He was heard. What needs to be remembered and kept in view is that here was a matter which involved the honour, self-respect and dignity of a young school girl. Her modesty had already been outraged. It must have been a traumatic experience. A regular inquiry would have further shattered her. We all know that in such cases, a victim is purposely, deliberately with design insinuated, insulted and humiliated. That is why, in matters like this, a regular inquiry is best avoided The Supreme Court, with respect, rightly held in Avinash Nagra V. NVS reported in (1997)IILLJ640SC that :-

"Education to the girl children is nation's asset and foundation for fertile human resources and disciplined family management, apart from their equal participation in socio- economic and political democracy. 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 thus 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.

....After conducting the enquiry, he submitted the report to the Director and the Director examined the report and found him not worthy to be a teacher in the institution. Under these circumstances, the Director has correctly taken the decision no 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 was temporary employee under probation. In the circumstances, it is very hazardous to expose the young girls to the tardy process of cross- examination. Their statements were supplied to the appellant and he was given an opportunity to controvert the correctness thereof. Under those circumstances, the conduct of the appellant is unbecoming of a teacher must less a loco parentis and, Therefore, dispensing with regular enquiry under the rules and denial of cross-examination are legal and not vitiated by violation of the principles of natural justice."

9. The finding of the Supreme Court in Director, NVS and Ors V. Babban Prasad Yadav and Anr. reported in 2004 (2) Scale 400, are equally relevant in the context of the present case. The relevant portion of the same is as under :

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

In the end, It was very rightly observed in the aforesaid judgment

that:

"13. A school is not merely bricks and mortar. It is the

nursery of idealism and character. The teacher is the person who nurtures the nursery and it is under him that he grows. He effects eternity. What if a teacher falls from the standard expected of him? In such a case surgical treatment may be called for and the present is one such case."

20. One cannot lose sight of the fact that the petitioner was a teacher in

a co-ed school and such dissipated conduct of a teacher would grub the

entire atmosphere of the school setting a bad precedent for the students

itself, specifically boys. This girl in an adolescent age was made to face

such cantankerous situation, therefore, to not to believe that she was

made to face such disgrace and ignominy in the entire set of

circumstances would be inhuman. We fail to imbibe that the allegations

were made with some personal objective or under the influence of other

teachers and students; rather it is quite visible that it was the teacher who

targeted Kumari Rekha for his own gratification on the pretext of making

her secure good marks. On the contrary, we feel that such students who

muster the courage to bring such terrible people out in the open should be