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1992 DIGILAW 338 (PAT)

Mahendra Prasad Keshari v. Eendriya Vidyalaya Sangathan

1992-09-17

G.C.BHARUKA, S.B.SINHA

body1992
Judgment S. B. Sinha, J. 1. In this application the petitioner has prayed for issuance of a writ of certiorart for quashing the orders dated 25-11-1991 as contained in Annexure-8. the order dated 30-11-1981 as contained in annexure-9 to the writ application and the order dated 25-5-1992 as contained in Annexute-12 to the Second Suppementary Affidavit. 2. The fact of the matter lies in a very narrow compass. 3. The petitioner was a post Graduate Teacher in Mathematics in Kendriya -Vidyalaya Jamalpur who was given the senior scale of pay of rs.2,000-3500 with effect from 17-7-1990 by an order dated 6-11-1990. He was also allowed to cross the efficiency bar. 4. On 21-12-1990 (Annexure-6) the petitioner was directed to show cause on the ground that some girls students and their guardians had made certain allegations against him. A particular reference was made to the cases of Smt. Bindu Kumari, Class IX (B), Jyoti Kumari, Class X (A) and sweta Dash, Class IX (C) that the petitioner had misbehaved with them. 5. The petitioner filed a show cause. Thereafter by an order dated 25-11-1991 as contained in Annexure-8 to the writ application, the petitioners services were terminated upon holding a summary enquiry and upon finding the petitioner guilty and exhibition of immoral sexual behaviour towards the complainant student. His services were, therefore, directed to be terminated in terms of Articles 81 (b) to the Education Code of Kendriya vidyalayas. The said order was communicated to the petitioner by the principal by an order as contained in Annexure-9 to the writ application. 6. The petitioner preferred an appeal before the Minister of Human resources Development Department as Chairman of the Kendriya Vidyalaya sangathan, which, as noticed, hereinbefore, was dismissed by an order dated 25-5-1992. 7. The said order was communicated to the petitioner by the principal by an order as contained in Annexure-9 to the writ application. 6. The petitioner preferred an appeal before the Minister of Human resources Development Department as Chairman of the Kendriya Vidyalaya sangathan, which, as noticed, hereinbefore, was dismissed by an order dated 25-5-1992. 7. It is admitted that the services of the petitioner had been terminated in terms of Rule 81 (b) of the Education Code of Kendriya Vidyalaya which reads as follows :- "whenever the Commissioner is satisfied after such a summary enquiry as he deisms 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 of exhibition of immoral sexual behaviour towards any student, he can terminate the services of that employee by giving him one mbnths or 3 months 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 particular 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. " 8. The learned counsel appearing on behalf of the petitioner has raised a short question in support of this application. The learned counsel submitted that no reasons have been recorded that it is not reasonably practicable to hold ao enquiry "against the petitioner. 9. According to the petitioner, recording of reasons is pre-requisite for exercise of power under Rule 81 (b) of the Education Code of Kendriya vidyalayas. 10. Mrs Renuka Sharrna, learned standing counsel, Central government has placed before us the entire file relating to the disciplinary action as against the petitioner. 11. It appears that one Sweta Dash made a complaint with regard to indecent behaviour of the petitioner. One Bindu Kumari was eye witness to the occurrence. Another complaint was made by one Kumari Jyoti. 10. Mrs Renuka Sharrna, learned standing counsel, Central government has placed before us the entire file relating to the disciplinary action as against the petitioner. 11. It appears that one Sweta Dash made a complaint with regard to indecent behaviour of the petitioner. One Bindu Kumari was eye witness to the occurrence. Another complaint was made by one Kumari Jyoti. The statements of the aforesaid students are on records. 12. We have also perused the copies of the said statements. 13. It further appears from the records that the petitioner undertook to tender apology in the morning assembly relating to the allegations of misconduct against him. He further agreed to proceed on leave for not less than one month at a stretch till his transfer to some other station by the kendriya Vidyalaya Sangathan is effected He agreed to accept an order of transfer to some other place. It appears that thereafter an enquiry was conducted against the petitioner. The report of the Enquiry Officer is as follows :- on the basis of a report submitted by the Principal 1, K. V. Jamalpur, vide letter No KV/jmp 1991/mpk dated 11-1-1991 regarding the alleged misbehaviour of Sh. M. P. Keshari PGT (Maths)K. V. Jamalpur with a girl student of class IX of the same vidyalaya, the Assistant Commissioner KVS, RO, PR Patna asked the undersigned to proceed to K. V. Jamalpur in order to enquire into the matter. The report is as under : the alleged incident of misbehaviour on part of Sh. Keshari took place on 15-12-1990 when the principal Sh. Saheb, Singh was out of station, on casual leave from 13-12-1990 to 19-12-1990. When the Principal reported back to duty, ex-leave on 20-12-1990, he found an atmoshphere of visible tension in the Vidyt-laya. In order to diffuse the tense situation and assuage the frayed tempers of students and parent/guardians the Principal asked Sh. Keshari among other steps, to apologiye in the morning assembly and proceed on leave. The situation was thus diffused temporarily. The Principal took a written statement from Km. Sweta Das, a student of Class IX, K. V. Jamaopur with whom Sh. Keshari had misbehaved on 15-12-1990. Keshari among other steps, to apologiye in the morning assembly and proceed on leave. The situation was thus diffused temporarily. The Principal took a written statement from Km. Sweta Das, a student of Class IX, K. V. Jamaopur with whom Sh. Keshari had misbehaved on 15-12-1990. The statement which is self explanatory is enclosed as Annexure-T. Two other girl students Jyoti Kumari of Class X, A and Bindu kumari of Class IX B also submitted written statements to the principal on 21-12-1990, which are enclosed as Annexures-II and iii, respecthely. The statements are self-explanatory. The principal also asked Sh. Keshari vide letter No. NIL dated 21-12-1990 allegation of misbehaviour with Km Sweta Dash to explain his position vis-a-vis (Annexure-IV ). Sh. Keshari had not submitted any such explanation till the date of enquiry. The undersigned took heap of two senior Lady teachers of the vidyalaya. Smt. Kuhoo Jati, PGT (Geo) and Sent. Sushila ramchandran, PGT (Eng) both of whom were initially very hestitant in associating themselves with the enquiry as they are from different states and feel none too secure at a crime infested place like Jamalpur However they extended their cooperation to the inquiry and asked the girl Km. Sweta Das to narrate the circumstances in which Sh, Keshari misbehaved with her. The girl felt free in the presence of two lady teachers and submitted a written statement which was recorded in the presence of the lady teachers and signed in my presence. The statement submitted by Km. Sweta Das at Annexure-V i self-explanatory and needs no elaboration. Findings.-It is a plain and simple case of moral turpitude on part of sh M. P. Keshari PGT (Maths ). The allegation of moral turpitude is amply corroborated by the Statements of Km. Sweta Das made before the principal on 21-12-1990 and in the presence of two lady PGTS of the Vidyalaya as well as my presence on 21-1-1991. The statement of Km. Sweta Das well as those of Jyoti Kumari and Bindu Kumari at Annexures II and iii, respectively throw sufficient light on the coarse and lewd moral fibre of Sh Keshari character. The written undertaking signed in the presence of four members of the Vidyalaya staff by Sh. Keshari including the principal placed at Annexure-VI is an indirect admission of the allegation by Sh. Keshari. The written undertaking signed in the presence of four members of the Vidyalaya staff by Sh. Keshari including the principal placed at Annexure-VI is an indirect admission of the allegation by Sh. Keshari. " 14 The principal also informed about the incident to the Assistant commissioner, Kendriya Vidyalaya Sangathan by his letter dated 8-3-1991. 15. From a perusal of the said letter it appears that the local police had also initiated some proceeding but the same was likely to be dropped as the parents of the girl students did not not wish to proceed therewith. 16. The record was thereafter placed before the Commissioner who passed the following order in the order sheets, dated 25-11-1991 :- "whereas Shri M. P. Keshari PGT (Math) Kendriya Vidyalaya, jamalpur has been found guilty of moral turptitude involving immoral sexual behaviour towards girl students of the Vidyalaya. And WHEREAS, I am satisfied from the summary enquiry that shri M. P. Keshari is guilty of moral turpitude involving sexual offence and exhibition of immoral sexual behaviour towards the complainant girl students. AND WHEREAS, I am further satisfied that in the instant case the procedure for imposing major penalty under CCS (CCA)Rules 1965 is neither necessary nor expedient ; now THEREFORE, I, D. S. Mukhpadhyay. Commissioner Ken-dria Vidyalaya Sangathao in exercise of the powers under Articles 81 (b) of the Education Code of Kendriya Vidyalaya, hereby terminate the services of Shri M. P. Keshari, PGT (Math) with immediate effect. Shri M. P. Keshari be paid pay and allowances as per the provisions contained in Article 81 (b) of the Education Code " 17. It is, therefore, clear that the Commissioner has recorded valid reasons for not holding a regular enquiry. On the facts it has to be held that holding of any such enquiry was bound to cause embarassment to some of the girl students and their guardians. 18. The petitioner, thereafter preferred an appeal as mentioned hereinbefore but the same has been rejected by the Chairman by reason of an order as contained in Annexure-12 to the writ application. 19. In this case, the concerned girl students and the witnesses have not only made complainants in writing but also had given their statements before that competent Authority The matter was enquired into by the principal as also by the Enquiry Officer, as noticed hereinbefore. 19. In this case, the concerned girl students and the witnesses have not only made complainants in writing but also had given their statements before that competent Authority The matter was enquired into by the principal as also by the Enquiry Officer, as noticed hereinbefore. The petitioner not only made a public apology in respect of the incident but also undertook to proceed on leave. The respondents, therefore, are correct that the petitioners have admitted his guilt in this regard as otherwise there was no reason for him to tender apologies or to proceed on long leave from the school in question till he was to be transferred to other school. 20. In such a situation, if the respondent bad taken action as against the petitioner, it cannot be said that the same was illegal. 21. In any event, it is now well known that the issuance of a writ of certiorari is a discretionary remedy. 22. This Court in Pramod Kumar and others V/s. The Slate of Bihar and others reported in 1988 PLJR 923, upon consideration of various decisions held as follows :- "it is now well settled by the various decisions of this Court and the supreme Court of India that issuance of a writ of certiorari is a discretionary remedy In this connection reference may be made in the case of Godde Venkateshwara Rao V/s. Government of andhra Pradesh and others, AIR 1966 SC 828 ; Abdul Majid and others V/s. The State Transport Appellate Authority, Bihar and others, AIR 1960 Pat 333 ; Devendra Prasad Gupta V/s. The State of Bihar and others, 1977 PUR 576 ; Hari Prasad mandal V/s. Additional Collector, 1978 BBCJ 575 : 1978 PLJR 636 ; Banwari Lal Newatia V/s. Under-Secretary to Government of india and others, 1982 BLT 311 and 1988 (1), SC Cases p.40. The aforementioned decisions are authorities for the proposition that writ jurisdiction of a High Court provides for discretionary remedy and it should not be exercised for quashing an order which might give rise to another illegal order as if substantial justice has been done to the parties. " The same view has been taken in Suku Mahto V/s. The State of Bihar, reported in 1992 (2) PLJR 134. " The same view has been taken in Suku Mahto V/s. The State of Bihar, reported in 1992 (2) PLJR 134. 23 It is one of such cases, in our opinion in which the court should not exercise its jurisdiction under Articles 226 and 227 of the Constitution of India. 24. For the reasons aforementioned, this application is dismissed but in the facts and circumstances of the. case, there will be no order as to costs. Application dismissed.