I. D. Panday v. Union of India — 1996 DIGILAW 179 (GAU)

The petitioner has preferred this petition against the order of termination of his service purportedly passed under Article 81(b) of the Education Code for Kendriya Vidyalaya. 2. The petitioner joined the Kendriya Vidyalaya Sangathan as a Post ; Graduate Teacher on 24.6.66 and he became Principal on 10.9.84. Thereafter he joined as Principal, KV Cooch Bihar on 27.7.89 and the incident in question took place while he was working as such. On his request he was transferred to KV Tengavalley on 26.11.92 wherein he is still working. The petitioner is aged about 55 years and his family comprises his wife, daughter, son, daughter-in-law and grand son. . . ' 3. During his posting at Cooch Bihar he was produced with a letter by the respondent No.5 the Education Officer containing complaint with a copy of a telegram from some parents alleging petitioner's involvement in sexual harassment to a girl of Class IX namely, Swagata. Petitioner gave reply on the same day and simultaneously wrote letter to the Assistant Commissioner Kendriya Vidyalaya Sangathan (KVS), Guwahati Region seeking transfer because of threatening and accordingly he was transferred to KVS, Tengavalley. Petitioner's contention is that the allegations are concocted, false and engineered by vested interests to thwart the petitioner's effort to instill discipline amongst the students. His further contention is that at his present place of posting at Tengavalley there is no any allegation against the petitioner and the authorities concerned were satisfied that the complaint was maliciously filed. That to his credit the petitioner received accolades from the concerned higher authorities. In support of this he annexed the letter of appreciation issued by the concerned authorities (Annexure IV and V to the affidavit in reply). But in spite of this, it is alleged, the petitioner received order dated 17.2.92 (Annexure III to the writ petition) issued by the respondent No.4 by which the impugned order passed by the respondent No.3 under Article 81 (b) of the Education Code published by the Government of India, Ministry of Education was communicated. 4. The Government of India, Ministry of Education issued directions from time to time regarding functioning of the Kendriya Vidyalaya and the Kendriya Vidyalaya Sangathan has published Education Code and under this the functioning of the Sangathan and management, administration of its employees etc have been provided. Chapter VII of the said Code deals with discipline of its employees. 4. The Government of India, Ministry of Education issued directions from time to time regarding functioning of the Kendriya Vidyalaya and the Kendriya Vidyalaya Sangathan has published Education Code and under this the functioning of the Sangathan and management, administration of its employees etc have been provided. Chapter VII of the said Code deals with discipline of its employees. Article 80 of Chapter VII provides for application of Central Civil Services (Discipline, Control and Appeal) Rules, 1965. Article 81 (b) of the Code provides for special procedure for summary enquiry regarding termination of services of an employee found guilty of immoral behaviour towards students. The Article 81 (b) of the Code is quoted below : "81. (b) Termination of services of an employee found guilty of immoral behaviour towards students. Wherever the Commissioner is 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 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 practical 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." 5. It is seen that in view of the summary enquiry under Article 81 (b) the petitioner's service was terminated as aforesaid. Petitioner's allegation is that no report of the purported summary enquiry was given to him and no document was made available to him with the statements of the alleged victim and the witnesses; that the termination order was passed in gross violation of the principle of natural justice and therefore not sustainable. Petitioner's allegation is that no report of the purported summary enquiry was given to him and no document was made available to him with the statements of the alleged victim and the witnesses; that the termination order was passed in gross violation of the principle of natural justice and therefore not sustainable. In view of the above grievances the petitioner has challenged the provisions of Article 81 (b) and prays to declare it as illegal and ultra vires. 6. The question for examination before this Court is whether Article 81 (b) of the Education Code of Kendriya Vidyalaya Sangathan confers an arbitrary and unrestrained power on the respondent to terminate the service of an employee on the basis of a prima facie case without any enquiry proceeding and whether Court can review the proceedings on the ground of violation of natural justice. 7. Mr. M. Koteswara Rao, Assistant Commissioner, KVS, Guwahati has filed the affidavit in opposition on behalf of respondents 1 to 5. It is averred that the fact of molestation of one Swagata, a girl student of Class IX was a fact and on the basis of a telegraphic complaint dated 9.11.92 the respondent No.5 was sent to Cooch Behar to investigate the matter and the writ petitioner was asked to comment on it. It is further averred that there were lot of written allegations against the petitioner from the parents, by students, by teachers and lady teachers and the respondent No.5 received all these complaints at Cooch Behar when he went there for enquiry and that such complaint against petitioner was not made for the first time. That petitioner was transferred from Cooch Behar by the authority for his personal safety; that the statements of allegations against the petitioner are of such nature that for the interest of the concerned students and teachers of the institution those could not be disclosed in the affidavit. In the affidavit in opposition the respondent has given some details of the sequence of the incident and the reaction among the students and teachers in particular and the people in general. That the Chairman of KVS, Cooch Behar wrote letter to the Assistant Commissioner, KVS Regional Office, Guwahati recommending removal of the writ petitioner and the teacher staff of the institution also adopted resolution and sent the same to the Education Officer, the respondent No.5. That the Chairman of KVS, Cooch Behar wrote letter to the Assistant Commissioner, KVS Regional Office, Guwahati recommending removal of the writ petitioner and the teacher staff of the institution also adopted resolution and sent the same to the Education Officer, the respondent No.5. On 20.11.92 the respondent No.5 as Enquiry Officer submitted the report to the Assistant Commissioner, KVS Regional Office, Guwahati with findings that the activities of the writ petitioner have given sufficient indication of his habitual unbecoming conduct with the girl students and lady teachers; that Swagata's (victim) case has been supported by concerned students and teachers with sufficient indication of misbehaviour of the writ petitioner. 8. Supporting the order of dismissal the respondent avers that the Assistant Commissioner by his letter dated 20.11.92 recommended disciplinary action against the petitioner; that the entire report was considered by the respondent No.3 and vide his order dated 2.2.93 petitioner's service was terminated and the same was communicated to the petitioner vide letter dated 17.2.93 by respondent No.4. 9. The above backdrops of the situation, which let to the dismissal of the writ petitioner, make out a prima facie case against the petitioner. But the question is whether the procedure adopted in dismissing the petitioner under Article 81 (b) of the Education Code of Kendriya Vidyalaya Sangathan requires judicial review. The established position of law, as enunciated in a catena of judicial ' pronouncements by the Apex Court as well as by the High Courts, is that in such cases writ jurisdiction Court would not act as a Court of appeal and examine the facts for themselves. It is not the function of the writ Court to substitute its wisdom and discretion for that of the person to whose judgment the matter in question was entrusted by the law. However, it is also the established position of law that while Court cannot interfere with the freedom of autonomous educational institutions to take action against its employees/officers, but where decision is vitiated by procedure which is found infirm with smack of arbitrariness, it can be looked into by Court. The test is, whether the wrong is of such a nature' as to require intervention. In such a case Court would set right the decision making procedure/power, but it would not substitute its own opinion for that of expert. 10. The test is, whether the wrong is of such a nature' as to require intervention. In such a case Court would set right the decision making procedure/power, but it would not substitute its own opinion for that of expert. 10. As discussed hereinbefore, the petitioner was dismissed under the provisions of Article 81 (b) which empowers the authority to dismiss a person by a summary proceeding. The provisions of this Article empowers the authority concerned, after a summary enquiry, to take steps which it deems proper and practicable in the circumstances of the case that "any member of the Kendriya Vidyalaya is prima facie guilty of moral turpitude....". Apparently wide discretion has been contemplated by this Article to penalise a person by dismissing him on the basis of a 'prima facie case'. 11. As stated above, petitioner's grievance is that he was dismissed from his service without giving knowledge about the summary enquiry report nor statements of the alleged complainants including the victim student were made available to him and no opportunity of hearing was given to him by giving personal hearing or by making available the enquiry report. Petitioner therefore challenged the vires of Article 81 (b) of the Education Code as arbitrary and naked power to terminate a person which has civil consequences. 12. In the case of Mohinder Singh Gill & another vs. The Chief Election Commissioner, New Delhi & others, (1978) 1 SCC 405 the five Judges Bench of the Apex Court enunciated the law that while the discretion is vested in the authority (Election Commissioner) he will ordinarily use it wisely and not rashly; that wide discretion is fraught with tyrannical potential even in high personages; that natural justice is one such check on exercise of wide power. In this case the Apex Court had the occasion to examine the plenary character of the power of the Election Commission in exercise thereof as conferred on it under Article 324 of the Constitution and in the light of it the Apex Court examined whether Election Commission was immune to the observance of the doctrine of natural justice on account of any recognised exceptions to the application of the said principle and unaccountable for his action even before the election Court. The Apex Court held that "Article 324, on the face of it, vests vast functions which may be powers or duties, essentially administrative and marginally even judicative of legislative. But assuming that the cancellation of the poll were only an administrative act, even then it does not repeal the application of the natural justice principle. Good administration demands fair play in action and this simple desideratum is the foundation of natural justice." 14. A bare reading .of the Article 81 (b) of the Education Code makes it apparent that this Article vests vast power on the Commissioner who on the basis of the summary enquiry can decide the case unilaterally keeping no scope for giving a predecisional hearing to the delinquent and Commissioner can dispense with the procedure prescribed for holding enquiry for imposing major punishment in accordance with CCS (CCA) Rules, 1965 as applicable to an employee of the Kendriya Vidyalaya Sangathan. To hold or not to hold an enquiry would be the exclusive discretionary power of the Commissioner. Apparently, this power has been vested to him on the ground that it may not be expedient to hold regular enquiry on account of serious embarrassment to the student or her guardian or such other practical difficulties. This omnipotent power of the Commissioner is only clothed with one protective formula that Commissioner shall record his reason in writing as to what is the circumstance for which it is not reasonably practicable to hold such enquiry. 15. In this case writ petitioner's stand is that there was no such situation/ reason for the Commissioner to hold that no regular enquiry was possible to hold. 16. Mr. NM Lahiri, counsel for the petitioner invites Court's attention to the news paper publication dated 14.11.92 in the 'Dainik Basumati', a Bengali daily newspaper, which was published much before the order of dismissal. The learned counsel further submitted that summary proceeding was actually started from 17.11.92 on which date by a letter petitioner's comments were asked for by the Education Officer, respondent No.5. Therefore it was submitted the plea of holding enquiry under Article 81 (b) of the Code to save the student and the guardian from 'serious embarrassment, that the contents of the news item published in the said news paper gives details of the alleged incident" though name of the student and guardian were not disclosed. 17. Therefore it was submitted the plea of holding enquiry under Article 81 (b) of the Code to save the student and the guardian from 'serious embarrassment, that the contents of the news item published in the said news paper gives details of the alleged incident" though name of the student and guardian were not disclosed. 17. However, before going to examine the vires of Article 81 (b) of the Education Code I would like to see whether even within the narrow rigour periphery of Article 81 (b) there is any connotation for an application of the principle of natural justice. The intention of the maker of the Article 81 (b), no doubt, is to keep the sanctity of the education institution and intend to maintain the privacy of parties to that incidents like this nature may not go to be public for the interest of both the institution and the members of the institution whose relationship ought to be very well guarded. But while the interest of the institution as well as the individual interest is to be seen at par, one sided view should not be taken for the interest of both. Notwithstanding anything contained in the Article the sole remedy for an aggrieved party is to invoke the principle of natural justice for an opportunity to be heard and this exclusion of all other remedies include the invocation of the principle of natural justice because of the non obstinate clause in the dismissal order. The fact that the Commissioner being the highest disciplinary body charged with the omnipotent power conferred by Article 81 (b) of the Education Code does not imply that the process of a predecisional hearing would effect the sanctity of the institution or put the student and the guardian in an embarrassing position. Provisions of the Article 81 (b) vested the power of discretion on the Commissioner and therefore potential arbitrariness cannot be ruled out even in such high personage like the Commissioner. 18. In Mohinder Singh Gill's (supra) case the Apex Court was of view that a fair hearing with full notice to both or other may surely protract; and notice does mean communication of materials since no one can meet an unknown ground and therefore their Lordships held that the full panoply may not be there but a manageable minimum may make do. The Apex Court further viewed that the disclosure of the prominent circumstances and asking for an immediate explanation orally or otherwise may, in many cases, be sufficient compliance. Relying on the ratio of the decision it can be held that natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure or circumstances. In view of that in a given case, the Commissioner is to judge the problem keeping in view the totality of all the factors. The Apex Court that 'the content of natural justice is a dependent variable, not an easy casualty'. In the case-Chandigarh Administration vs. Ajoy Manchauda (1993) 3 SCC 753 the Apex Court held that though clause (3)pf Article 311 declares that when a question arises whether it is reasonably practicable to hold an enquiry, the decision of the competent authority shall be final on that question, but it does not mean that the scope of judicial review is excluded altogether. In deciding the case the Apex Court referred the cases of State of Rajasthan vs. Union of India, (1977) 3 SCC 592 , SR Bommai vs. Union of India (1994) 3 SCC 1 and AK Kaul vs. Union of India, (1995) 4 SCC 73 . In this case in hand an analogy can be drawn between Article 311 (3) of the Constitution o»f India and Article 81 (b) of the Education Code and relying on the decisions of the Apex Court I hold that though in a given situation the competent authority can finally decide the case on the ground keeping sanctity of the educational institution, writ Court can review the process when challenged. 19. In this case petitioner's dismissal certainly has a civil consequence. Applying the rigour of the provisions of Article 81 (b) the respondent Commissioner dismissed the petitioner depriving him of not merely property or personal rights but of material deprivation and non pecuniary damages. Admittedly the petitioner is a doctorate and he was known for his academic as well as efficiency as a Principal of Central School and there was no any previous allegations against his moral character whatsoever. 20. Admittedly the petitioner is a doctorate and he was known for his academic as well as efficiency as a Principal of Central School and there was no any previous allegations against his moral character whatsoever. 20. In view of the discussion made hereinabove it is reiterated that Court is not sitting as the appellate authority on the decision of the respondent Commissioner but the process making the decision smacks the arbitrariness which was arrived at without giving a predecisional hearing to the say of the writ petitioner. 21. I am constrained to hold that the rigour of the provisions of the Article 81 (b) cannot be evaded with the plea of saving the student and the guardian from embarrassment. Even in the process of summary enquiry there was sufficient scope to give a predecisional hearing to the petitioner when the decision has civil consequence prejudicial to the petitioner. The Court need not provided a hard and fast rule regarding the adoption of the principle of natural justice. An aggrieved person should have the reasonable opportunity and should have the confidence and satisfaction that he had an opportunity to place his case before the authority. 22. Now coming to the next question whether the Article 81 (b) is ultra vires and required to be struck off, I am of the view that a provision of law should not be struck off it, if rigour of the provision of the Article can be evaded by giving an opportunity to a delinquent employee following the principle of natural justice. In view of my reasons given above I am constrained to hold that notwithstanding anything contained the provisions of Article 81 (b) the pervasive facet of natural justice enlivens legislation, administration and c adjudication to lessen the rigour of a piece of law. Application of the principle of natural justice and any forms and shapes of natural justice save the rule of law where valid law excludes it and applies when people are affected by acts of authority. On reading of the Article 81 (b) it cannot be said that there is no scope for giving an opportunity to the delinquent employee, nor there is any such blanket restriction put on the discretion of that authority that he cannot give a predecisional hearing or give any opportunity to the aggrieved person in any manner he thinks proper. On reading of the Article 81 (b) it cannot be said that there is no scope for giving an opportunity to the delinquent employee, nor there is any such blanket restriction put on the discretion of that authority that he cannot give a predecisional hearing or give any opportunity to the aggrieved person in any manner he thinks proper. The Article has been included to keep the sanctity,-discipline and privacy of the educational institution. In my view, it cannot be said that the inclusion of this Article is inconsistent with the provisions of the CCS (CCA) Rules or is ultra vires to the rights enshrined by the Constitution. Provision of this Article provides for summary proceeding for certain purpose and rigidity and rigour of the provisions are amenable to principle of natural justice and if complaint is made before the appropriate authority or to the Court, the same has to be decided whether observance of that rule was necessary for a just decision on the facts of the case. In view of that matter I hold that the Article 81 (b) need not be read down nor be struck off from the Education Code 4 and is not ultra vires of the CCS (CCA) Rules and provisions of Education Code. However, as discussed above, the respondent Commissioner did not give an, opportunity for predecisional hearing to the petitioner and therefore the same procedure violates the principle of natural justice. 23. The respondent authority is directed to issue notice to the writ petitioner and give him an opportunity to represent his case on the materials only available g with the respondent authority and the authority concerned shall give a speaking order after hearing him. , 24. In the result the writ petition is allowed. No costs.