Assistant Commissioner (Oftg) vs Padmalochan Mohanty And Others
2022 Latest Caselaw 1779 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                            W.P.(C) No.8080 of 2009

      Assistant Commissioner (OFTG),               ....           Petitioners
      Kendriya Vidyalaya Sangathan,
      Bhubaneswar and another
                                -versus-
      Padmalochan Mohanty and others               ....     Opposite Parties


      Appeared in this case:

      For Petitioners              :              Mr. Budhadev Routray,
                                                        Senior Advocate

      For Opposite Parties         :    Mr. Jayadev Sengupta, Advocate
                                              for Opposite Party No.1 and
                                       Mr. P. K. Parhi, Assistant Solicitor
                                           General of India for Proforma
                                                     Opposite Party No.2

       CORAM:
       THE CHIEF JUSTICE
       JUSTICE A. K. MOHAPATRA


                                  JUDGMENT

11.03.2022 Dr. S. Muralidhar, CJ.

1. This writ petition challenges an order dated 29th January, 2009 of the Central Administrative Tribunal, Cuttack Bench, Cuttack (CAT) allowing OA No.246 of 2008 filed by the Opposite Party No.1 and directing a de novo inquiry to be held within a period of 90 days.

2. While directing notice to issue in the present petition on 14th January 2010, this Court stayed the direction of the CAT for a de novo enquiry.

3. The background facts are that Opposite Party No.1 was a Trained Graduate Teacher (TGT) of the Kendriya Vidyalaya School (KVS) at Baripada. A complaint was made by mother of one of the students to the Principal against the Opposite Party No.1 on 21st July, 2007 alleging that Opposite Party No.1 had misbehaved with her daughter, a student of Class-VI, who had told her mother that Opposite Party No.1 had done "wrong things with her" during tuition hours at her residence on 11th July, 2007.

4. Consequent of the complaint, the Principal KVS, Baripada immediately called some staff members including the complainant and Opposite Party No.1 for a discussion. Opposite Party No.1 is stated to have accepted his guilt and given a written apology on 21st July, 2007 in his own hand writing. He also signed a settlement in which he was warned for the said mistake and instructed not to repeat such kind of a misdeed with any student in future. This was signed by the complainant, Opposite Party No.1 as well as other staff and the Principal of the KV, Baripada.

5. Invoking Rule 16 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 (CCS (CCA) Rules), the Principal on the very same day i.e., 21st July, 2007 issued a memorandum to Opposite Party No.1 informing him that it was proposed to take action against him for the misbehavior towards the girl student

during tuition hour at her residence. Opposite Party No.1 was given an opportunity to make a representation. On 28th July, 2007, the Opposite Party No.1replied denying the charges in toto. The victim girl made a statement on 22nd August, 2007 before the Teachers' Committee and stood by her complaint of his misbehavior with her.

6. The Inquiry Officer issued another letter on 22nd August, 2007 requiring the Opposite Party No.1 to present himself before the Inquiry Committee on 23rd August, 2007 at 12 noon. The victim girl as well as the complainant, i.e., the mother of the victim girl, made statements before the Inquiry Committee on 26th November, 2007 standing by their earlier statements.

7. On 3rd December, 2007, the Education Officer issued a notice to Opposite Party No.1 to which the Opposite Party No.1 replied on 11th December, 2007. On 7th March, 2008, the Assistant Commissioner, who is an Ad hoc Disciplinary Authority for KVS, Bhubaneswar placed Opposite Party No.1 under suspension in terms of Rule-10(1) of the CCS (CCA) Rules stating that a disciplinary proceeding against him was contemplated.

8. At that stage, the Opposite Party No.1 filed on 31st May, 2008 OA No. 246 of 2008 challenging the initiation of the departmental proceedings. In the meanwhile, Opposite Party No.1 was issued a memorandum of charges dated 28th May, 2008 asking him to show cause why his services should not be terminated under Article 81(B) of the Education Code for Kendriya Vidyalayas

(Code) failing which it would be presumed that he had nothing to say and would be proceeded ex parte. On 19th August, 2008, the CAT stayed further proceedings against Opposite Party No.1.

9. The CAT held as follows in the impugned order:

"(i) Sufficient opportunity was not granted to Opposite Party No.1 about constitution of a committee by the Inquiry Officer to effectively place his defence;

(ii) Reading Articles 59(14) and 81(B) of the Code, the KVS Authorities were justified in issuing the memorandum dated 28th May, 2008. The indication of the Article 81(B) of the Code was also upheld;

(iii) None of the documents and evidence adduced before the Principal by the Committee constituted by him could be used by any other parties and, therefore, the inquiry report submitted by such committee on 4th February, 2008 was not sustainable. Consequently, the said inquiry report and the memorandum dated 28th May, 2008 were quashed and a de novo inquiry was ordered to be completed within 90 days."

10. Challenging the above order, the present petition was filed by KVS in which while directing notice to issue on 14th January, 2010, this Court ordered the de novo inquiry to be kept in abeyance. That interim order has continued since.

11. This Court has heard the submissions of Mr. Budhadev Routray, learned Senior Counsel appearing for the Petitioners, Mr.

Jaydev Sengupta, learned counsel for Opposite Party No.1 and Mr. P.K. Parhi, learned Assistant Solicitor General of India for proforma Opposite Party No.2.

12. Mr. Routray submitted that the preliminary inquiry and summary inquiry were conducted in terms of Article 81(B) of the Code read with the procedure laid down at Annexure-6 dated 24th January, 2002. A show cause notice (SCN) had been issued to Opposite Party No.1 to submit a response to the summary inquiry report. Instead of doing that, Opposite Party No.1 approached the CAT even before receiving the SCN. Consequently, the petition before the CAT was itself premature since the final order had not yet been passed. Even the final order was an appealable one. Since the summary inquiry of the Teachers' Committee was held in accordance with the instructions issued by the KVS to all schools on 24th January, 2002, and the Commissioner KVS was competent to issue the SCN in terms thereof, no interference was called for with the report of the Teachers' Committee. Mr. Routray accordingly submitted that there was no occasion for the CAT to have quashed the notice dated 28th May, 2008.

13. Mr. Routray further submitted that Opposite Party No.1 had given a written apology in his own hand writing on 21st July, 2007. He had also admitted the settlement signed by him before the Principal on the same date. This was corroborated by the complainant i.e., the mother of the victim girl in a statement during the inquiry on 26th November, 2007. In addition to this, before the Teachers' Committee the victim girl made a categorical

statement on 22nd August, 2007 regarding the misbehavior with her by Opposite Party No.1. She repeated this during the summary inquiry on 26th November, 2007. It was pursuant to the above statement and the statements of the other witnesses on 11th December, 2007 that the Committee constituted by the Assistant Commissioner, which conducted the summary inquiry, submitted a report on 4th February, 2008.

14. Mr. Routray submitted that mere fact that the report of the said Committee made reference to the documents signed by the Opposite Party No.1 on 21st July, 2007 will not ipso facto vitiate it, particularly since the earlier report dated 22nd August, 2007 was referred to by it. Moreover, the Committee had itself examined the witnesses. Reliance was placed on the decision of the Supreme Court in Avinash Nagra v. Navodaya Vidyalaya Samiti,1997(2) SCC 534" in support of the decision of the KVS to dispense with the regular enquiry under the CCS (CCA) Rules and to adopt a summary inquiry. Reliance was placed on the decision of the Supreme Court in Union of India v. Ashok Kacker (1995) Supp-1 SCC 180, to urge that the CAT ought not to have interfered with the proceedings at a pre-mature stage when even the final order had not been passed in the disciplinary proceedings.

15. Reliance was also placed on the decision of the Supreme Court in Union of India v. Kunisetty Satyanarayana AIR 2007 SC 906 to urge that the writ jurisdiction is normally not exercised for quashing a show cause notice particularly when it does not prejudice the right of the noticee procedurally or otherwise.

Reliance also placed on the decision of the Supreme Court in Chairman-cum-Managing Director, Mahanadi Coalfields Ltd. v. Rabindranath Choubey, AIR 2020 SC 2978 to urge that the enquiry can be concluded even after the superannuation of the delinquent employee as long as the matter inquired into pertains to events that took place while he was in service.

16. On the other hand, Mr. Jaydev Sengupta, learned counsel appearing for Opposite Party No.1 submitted that Article 81(B) of the Code is not applicable since the incident took place at the residence of the complainant and not within the school premises. For the same reason, it is submitted that the Principal and other authorities of KVS have no jurisdiction to proceed against Opposite Party No.1. According to Mr. Sengupta, it is significant that the complainant did not lodge any FIR in regard to the incident. Opposite Party No.1 claimed that he had been forced to sign on the compromise paper and that the confessions note itself was 'fake'. The Principal KVS had no jurisdiction to constitute a fact finding committee and, therefore, acted contrary to law. Mr. Sengupta submitted that the delay in making the complaint on 21st July, 2007, in relation to the incident that took place on 11th July, 2007 was unexplained. This added to the suspicion of the conduct of the complainant herself. It was submitted that the Petitioners were trying to humiliate the Opposite Party No.1 as a result of vindictive attitude.

17. The above submissions have been considered. In the first place, Article 81(B) of the Education Code applicable for Kendriya Vidyalayas requires to be referred to. It reads as under:

"81(B) Termination of services of an employee found guilty of immoral behaviour towards students: Where the Commissioner is satisfied after such a summary inquiry 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 three 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 inquiry 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 inquiry on account of embarrassment to 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 inquiry and he shall keep the Chairman of the Sangathan informed of the circumstances leading to such termination of services. s: Wherever and as far as possible, a summary inquiry in the complaint of immoral behaviour by a teacher towards the students of Kendriya Vidyalayas may be got investigated by the Complaints Redressal Committees constituted in the Regional offices."

18. The above clause has to be read along with Clause 54 of Chapter VI of the Code of Conduct for Teachers (CCT) in the KVS, which reads as under:

"54. A person who chooses teaching as a career, assumes the obligation to conduct himself at all times in accordance with the highest standards of the teaching profession, aiming at quality and excellence in his work and conduct, setting an example which will command the respect of the pupils, the parents and his colleagues. Teaching, in its true sense, is not mere instruction but influence. The teacher's duty is not merely to communicate knowledge in specific subjects but also to help children grow to their fullest stature and unfold their personality. In this responsible task what matters most is the personal example of the teacher.

55. The following code of conduct is, therefore, laid down for the guidance of the teachers of the Kendriya Vidyalayas:

.....

(14) Every teacher should have an exemplary moral character. His dealings with the members of the other sex in the Vidyalaya or outside it, should not be such as would cause reflection on his character or bring discredit to the Vidyalaya."

19. It is a fact that teachers often are engaged for private tuitions of the very students studying in their class in the school, and these tuitions usually are after school hours. For this purpose, either the student goes to where the teacher is or vice versa. These tuitions are in the sense therefore an extension of the classroom beyond the formal hours of teaching. The relationship of the teacher and the student continues in these situations. The very purpose of Clause 54 of the CCT would be defeated if a

strict separation is made between what transpires in the school premises and what transpires outside it notwithstanding that the relationship of teacher and students continues in such location. The teacher's control over the students therefore continues. Consequently, the Court is unable to accept the plea on behalf of Opposite Party No.1 that merely because the incident took place outside the school premises, Article 81(B) of the Code was seized to apply. Given the context of the complaint, and the continuing relationship and the control of the teacher over the student even at her residence, the Court holds that the misconduct complained of by the student would be covered under Article 81(B) of the Code read with Clause 54 of the CCT.

20. In the present case, in the first place, the CAT was an error in interfering at a stage when even the final order on the SCN had not been passed. In Ashok Kacker (supra), the Supreme Court disapproved of interference by the CAT with a charge sheet at a stage when even the disciplinary authority had not given its decision. In Kunisetty Satyanarayan (supra), the Supreme Court even disapproved of the High Courts, in exercise of its writ jurisdiction, quashing a show cause notice or a charge sheet particularly since at that stage no real prejudice is caused to the noticee. In the present case as well, the challenge raised by the Opposite Party No.1 before the CAT was pre-mature and on this short ground, the CAT should have refrained from interfering in the matter.

21. As regards the decision of the Principal to constitute a Teachers' Committee to begin with and thereafter, a broad-based Committee to hold the summary inquiry, it finds support from the circular issued on 24th January, 2002 by the Commissioner of KVS laying down the procedure for inquiry into such complaints. The clear statements made by the victim girl herself on two occasions and corroborated by the statements of her mother and other witnesses was sufficient for the Principal to have come to a prima facie conclusion and also deciding to dispense with a formal disciplinary proceedings under the CCS (CCA) Rules.

22. In Avinash Nagra (supra), the Supreme Court approved of the dispensing with a formal inquiry. It was held that as long as the principles of natural justice are complied with, the non- holding of a regular enquiry and denial of cross-examination would not vitiate such proceedings. The misbehaviour of the teacher with the student was the focus of the proceedings. The Supreme Court observed as under:

"The conduct of the Appellant is unbecoming of a teacher much 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."

23. There was no occasion for the CAT to have ordered any de novo inquiry in the facts and circumstances of the present case. As pointed out by Mr. Routray, Opposite Party No.1 has retired during pendency of the proceedings but his case has to be

concluded in terms of Rule 9(2) of the CCS (Pension) Rules, 1972 as applicable to KVS' employees. He further pointed out that Opposite Party No.1 would be eligible only for provisional pension under Rule 9(4) of the CCS (Pension) Rules, 1972 read with Rule 69 thereof till the date of disposal of the proceeding.

24. The mere fact that as explained in Rabindranath Choubey (supra), the disciplinary proceedings can continue notwithstanding that Opposite Party No.1 may have superannuated, the disciplinary authority would have power to impose penalties even after the age of superannuation.

25. In that view of the matter, the impugned order of the CAT is unsustainable in law and is hereby set aside. The writ petition is allowed in the above terms, but in the circumstances, with no order as to costs.

(S. Muralidhar) Chief Justice

(A. K. Mohapatra) Judge

M. Panda