Kandla Port Trust v. K. R. Chauhan — 1998 DIGILAW 327 (GUJ)

N. N. MATHUR, J. ( 1 ) BY way of this petition under Arts. 226 and 227 of the Constitution of india, the petitioner Kandla Port Trust has challenged the judgment and order dated 23. 9. 1996 passed by the Second Gujarat Secondary Education Tribunal setting aside the order dated 13/14. 12. 1976 removing Respondent No. 1, Shri K. R. Chauhan from service. ( 2 ) BRIEF facts giving rise to the present Special Civil Application are that Bharatiya vidya Mandir, New Kandla is a registered private school run by Kandla Port Trust, gandhidham which is a public trust. The respondent Shri K. R. Chauhan was appointed as assistant Teacher on a probation for a period of two years with effect from 17. 11. 1969. While he was still under probation on 23. 4. 1971, the Disciplinary authority, namely, the secretary, Kandla Port Trust, served a memorandum dated 23. 4. 1971 informing him of proposed inquiry under Regulation 12 of the Kandla Port Employees (Classification, control and Appeal) Regulations, 1964. The allegations on which the enquiry was proposed to be held were set out in the statement of allegations enclosed with the said memorandum. It is alleged that the respondent while functioning as Assistant Teacher in the Port Trust school misbehaved with certain girl students as per the facts given in the statement and as such he conducted himself in the manner unbecoming of a teacher of a school and an employee of the Port Trust. The respondent submitted reply to the said notice on 29. 4. 1971 denying the allegations. The respondent demanded inspection of certain documents referred to in the reply. He also submitted that it would be difficult to reply to the charges levelled against him unless he is furnished with the said documents. The respondent had asked to furnish him copy of (1) the complaint of Kum. Bhagwanti Kalyani (2) complaint of Kum. Kamala (3) complaint of Kum. Chandrika Mulpuri, (4) complaint of Kum. Vijya (5) report of the Headmaster of Port High School (6) any memo issued against him (7) regulation No. 12 of K. P. Employees Act, 1964. By another letter dated 6. 8. 1971 respondent No. 1 asked to supply copy of the annual examination programme for the year 1970-71 of Kandla School along with the duty chart of the teachers and/or examinees of the said examination. By another letter dated 6. 8. 1971 respondent No. 1 asked to supply copy of the annual examination programme for the year 1970-71 of Kandla School along with the duty chart of the teachers and/or examinees of the said examination. The Enquiry Officer examined six witnesses, namely : (1) Kum. Bhagwanti Kalyani (2) Shri K. J. Kalyani (3) Kum. Kamala Naraindas (4) Shri Naraindas Changrani (5) Shri J. H. Thacker, Headmaster (6) Kum. Vijaya Naranji Thacker. ( 3 ) KUM. Bhagwanti Kalyani in her oral statement confirmed that what she had stated in her letter dated 12. 4. 1971 was true. The witness also stated about the second incident where Mr. Chauhan is alleged to have gesticulated at her and the gestures were peculiar. She also stated that when she was going down through the stairs and Mr. Chauhan going up through the stairs he touched her with his elbow and attempted to pull the handkerchief which was in her hand and further expressed how good she was and he would remember her for ever. She was cross-examined by Mr. Chauhan. On a question put by Mr. Chauhan to her, she replied that the time of incident on the staircase was 9. 30 a. m. and there was p. T. examination on that day. Another witness Shri K. J. Kalyani, father of Kum. Bhagwanti Kalyani stated that his daughter had reported the improper conduct of Mr. Chauhan. Some of the other girl students also came to him making similar complaints which related to immorality of Mr. Chauhan. He was also cross-examined by Mr. Chauhan. Other witnesses also made statements almost in the same lines and Mr. Chauhan was also given an opportunity of cross-examining them. The Enquiry Officer also considered defence of Mr. Chauhan to the effect that the allegations were false and fabricated at the instance of Shri Kalyani as he did not like any qualified teacher in the school. He always thought that if any qualified teacher joins, his chance of becoming headmaster will be ruined. Mr. Chauhan had made a request for re-examination of the witnesses but the same was declined. Dealing with the question of supply of documents the Inquiry Officer said that the report of the complaint and other necessary documents were given to him. On appreciation of evidence the Enquiry Officer arrived at the conclusion that Mr. Mr. Chauhan had made a request for re-examination of the witnesses but the same was declined. Dealing with the question of supply of documents the Inquiry Officer said that the report of the complaint and other necessary documents were given to him. On appreciation of evidence the Enquiry Officer arrived at the conclusion that Mr. Chauhan had conducted himself in a manner unbecoming of a teacher. He also found the allegations of misbehaviour proved with the girls, namely kum. Bhagwanti Kalyani and Kum. Kamala Naraindas. The Disciplinary authority after considering the inquiry report and the defence of the delinquent teacher imposed upon him penalty of withholding of next increment for a period of three years without cumulative effect by order dated 28. 5. 1975. The petitioner aggrieved by the said order preferred appeal to the appellate authority, namely the Chairman, Kandla Port Trust. The chairman issued a notice dated 22. 12. 1975 to show cause as to why the penalty should not be enhanced to dismissal from service in view of the serious nature of the charges levelled against him. The show cause notice was also accompanied by the report of the enquiry. The petitioner was asked to submit his representation within a period of 15 days from the date of receipt of the memorandum. The respondent submitted reply to the said show cause notice. After considering the entire material and while agreeing with the finding of the Inquiry Officer, the appellate authority confirmed the finding of the Inquiry officer that the respondent Shri Chauhan was guilty of misbehaviour with the girl students inflicted penalty of removal from service. The respondent challenged the said order by way of an appeal before the Gujarat Secondary Education Tribunal. In the opinion of the Tribunal the order of removal was bad being in violation of provisions of sec. 36 (1) of the Act. The Tribunal by judgment dated 11. 4. 1977 set aside the order of removal and declared that the respondent shall deem to be continued in service and shall be entitled to receive arrears of wages. The management was directed to reinstate him in service forthwith. An opportunity was given to the management to take appropriate steps under the provisions of Sec. 36 (1) (b) of Gujarat Secondary Education Act, 1972. The management was directed to reinstate him in service forthwith. An opportunity was given to the management to take appropriate steps under the provisions of Sec. 36 (1) (b) of Gujarat Secondary Education Act, 1972. The petitioner approached this court by way of Special Civil Application which was registered as Special Civil Application No. 604 of 1977 and the same was rejected by the order of this court dated 20. 6. 1977. Letters Patent Appeal was preferred against the said judgment which was registered as LPA No. 130 of 1977. The Division Bench disposed of the said lpa by order dated 20. 11. 1985, on the terms agreed between the parties. By the said agreed order the order of the learned Single Judge as well as the order of the Gujarat secondary Education Tribunal were quashed and set aside and the matter was remanded to the Tribunal for fresh decision on merits. Liberty was given to both the parties to lead evidence on merits. The Tribunal was to decide afresh the legality of the order of termination and further if invalid whether the respondent employee is entitled to be reinstated and/or to be paid back wages. It was agreed that the Management will not press at any stage before any Court or authority the contention that the Secondary Education tribunal had no jurisdiction or that the provisions of the Secondary Education Act are repugnant to the provisions of the Major Port Trusts Act. So as the respondent employee shall also not urge or contend at any stage before any Court or authority that the departmental inquiry or the order of removal is violative of the provisions of Grant-in-aid code or of the provisions of Sec. 36 (1) (b) of the Gujarat Secondary Education Act or that the order of removal has been made by a person or authority not competent to do so under sec. 36 of the Gujarat Secondary Education Act. The Court also clarified that the Tribunal would not consider the contentions or points which the parties have agreed not to urge or contend or press as stated in the order and they shall be treated as given up by the parties. 36 of the Gujarat Secondary Education Act. The Court also clarified that the Tribunal would not consider the contentions or points which the parties have agreed not to urge or contend or press as stated in the order and they shall be treated as given up by the parties. After the remand of the matter to the Tribunal, the Kandla Port Trust Management gave an application raising an issue that the legality of the departmental inquiry should be decided first as a preliminary issue and if the inquiry is held to be illegal, the management be given an opportunity to lead evidence. Said application was rejected by the order of the tribunal dated 11. 8. 1988. The petitioner approached this Court by way of Special Civil application No. 6406 of 1988. The said application was rejected by the order of the division Bench dated 26. 2. 1992. Against the said order of the Division Bench of this court the petitioner approached the Supreme Court by way of Special Leave Petition (SLP) No. 10380 of 1992. The Supreme Court passed the following order : "the Tribunal will first decide the question with regard to the validity of the inquiry held by the appellants. In case the Tribunal comes to the conclusion that the inquiry held was not valid the Tribunal will give opportunities to both the parties to lead whatever evidence they propose to produce and then decide the matter on merits. The appeal is allowed accordingly with no order as to costs. ( 4 ) THE Tribunal by order dated 15. 4. 1996 held that the inquiry was illegal. The petitioner preferred Special Civil Application No. 4483 of 1996 against the said order. The said Special Civil Application was rejected by the order of this Court dated 1. 7. 1996. However, this Court observed that the petitioner may satisfy the Tribunal that the findings recorded by the Tribunal on the preliminary issues require reconsideration and if such a request is made, the Tribunal may reconsider the findings recorded by it on the preliminary issues. The Tribunal by the impugned order dated 23. 9. 1996 allowed the appeal and set aside the order of removal. In the opinion of the Tribunal, the order of the removal was bad for the reasons that it was in violation of the provisions of Sec. 36 (1) (b) of the Gujarat Secondary Education Act. The Tribunal by the impugned order dated 23. 9. 1996 allowed the appeal and set aside the order of removal. In the opinion of the Tribunal, the order of the removal was bad for the reasons that it was in violation of the provisions of Sec. 36 (1) (b) of the Gujarat Secondary Education Act. The Tribunal also found the inquiry in violation of the principles of natural justice as copy of the inquiry report was not given to the delinquent teacher. Further copy of the complaint, some of the documents which were asked for were not supplied. He was not permitted to cross-examine the witnesses. The tribunal also took note of the fact that the original record of the inquiry was not produced before the Tribunal. Date : 18th June, 1998. ( 5 ) ASSAILING the judgment of the Tribunal the learned Counsel Mr. A. K. Clerk contended that the judgment of the Tribunal is erroneous, contradictory, misdirected in facts and law and perverse. It is also submitted that in spite of the fact that the respondent has admitted in his statement that the entire record was shown to him and he was given an opportunity in accordance with the principles of natural justice, the Tribunal overlooking the said statement and disturbed the finding arrived at by the domestic enquiry on the ground that the documents demanded were not supplied to him and further he was not allowed to cross-examine the witnesses. Relying on the decision of the Apex Court in the case of State Bank of Patiala vs. S. K. Sharma, reported in AIR 1996 SC 1669 it is submitted that enquiry cannot be vitiated on mere allegation of violation of some procedural provisions. It is submitted that in the instant case the respondent has not pleaded any prejudice, what to talk of establishing the same. The learned Counsel further referred to the decision of Apex Court in the case of Him Nath vs. Rajendra Medical college, reported in AIR 1973 SC 1260 and submitted that in a case of misbehaviour with girl students it is not necessary to examine girl students in presence of male students. It is also submitted that no illegality is committed in not supplying copy of the enquiry report as the case of Union of India vs. Md. It is also submitted that no illegality is committed in not supplying copy of the enquiry report as the case of Union of India vs. Md. Ramzan Khan, reported in 1991 (1) SCC 588 operates prospectively as held by the Apex Court in the case of Managing Director, ECIL vs. Karunakar; reported in 1993 (4) SCC 727 . It is also contended that the Tribunal committed error in permitting the respondent to press into the contention with respect to the provisions of Sec. 36 (1) (b) of the Gujarat Secondary Education Act, 1972 as the said contention was given up which is evident from the order of the Division Bench. ( 6 ) ON the other hand Mr. T. R. Mishra, learned Counsel appearing for the delinquent employee submitted that a false complaint was made at the behest of another assistant teacher, namely Shri K. J. Kalyani as he was maintaining hostile attitude with him. He managed the activity of lodging complaint on 13. 12. 1972. Mr. Kalyani was Union Office bearer and he was having influence over the management. It is also submitted that whenever a qualified teacher joins Mr. Kalyani apprehended that such a qualified teacher may march over him to become headmaster of the school. The learned Counsel has invited my attention to paras 16, 17, 19 and 20 of the inquiry report. He has submitted that (he material documents were not supplied to the delinquent respondent which has seriously prejudiced his case. He referred to para 16 of the inquiry report wherein Mr. Dixit has stated that on 10. 4. 1971 there was P. T. test of class IX and X and the said test was conducted during the period from 8. 00 a. m. to 10. 45 a. m. If he was supplied examination duties chart he would have succeeded in establishing that at the time of alleged incident on 10. 4. 1971 Kum. Bhagwanti was busy with P. T. test. It is submitted that the allegation that Kum. Vijaya Naranji had resigned from the library because of the indecent behaviour of the respondent has not been supported by Kum. Vijaya Naranji, herself. Mr. Mishra lastly submitted that in the facts and circumstances of the case the punishment awarded is harsh. ( 7 ) I have carefully considered the rival contentions. In State of Andhra Pradesh vs. Venkata Rao. Vijaya Naranji had resigned from the library because of the indecent behaviour of the respondent has not been supported by Kum. Vijaya Naranji, herself. Mr. Mishra lastly submitted that in the facts and circumstances of the case the punishment awarded is harsh. ( 7 ) I have carefully considered the rival contentions. In State of Andhra Pradesh vs. Venkata Rao. reported in AIR 1975 SC 2151 , the delinquent employee was charged for false claims of travelling allowance. The Tribunal found guilty of charges and recommended for dismissal. The order of dismissal was challenged. The High Court set aside the order of dismissal on the ground that the prosecution did not adduce every material evidence to make out the charges. The High court also said that certain documents were not admissible in evidence in accordance with the Evidence Act. High Court also said that corruption or misconduct under the relevant Disciplinary Rules has the same meaning as criminal misconduct. The High court discussed the evidence in this background. The Apex Court set aside the judgment of the High Court and held that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the court need not be applied. ( 8 ) IN Stale of Tamil Nadu vs. S. Subramaniam, reported in (1996) 7 SCC 509 , the apex Court held that it is the exclusive domain of the disciplinary authority to consider the evidence on record and to record findings whether the charge has been proved or not. The Court also held that the technical rules of evidence have no application for disciplinary proceedings and the authority is to consider the material on record. The Court further held that in judicial review the Court or Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. ( 9 ) IN State Bank of Patiala vs. S. K. Sharma, reported in AIR 1996 SC 1669 the supreme Court held that violation of any and every procedural provision cannot be said to automatically vitiate the domestic enquiry held or order passed unless the case falls in the category of no notice, no opportunity and no hearing. ( 9 ) IN State Bank of Patiala vs. S. K. Sharma, reported in AIR 1996 SC 1669 the supreme Court held that violation of any and every procedural provision cannot be said to automatically vitiate the domestic enquiry held or order passed unless the case falls in the category of no notice, no opportunity and no hearing. The Court also held that complaint of violation of procedural provision should be examined from the point of view of prejudice, namely, whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. ( 10 ) IN Him Nath vs. Rajendra Medical College, reported in AIR 1973 SC 1260 , in the night between 10th and 11th June, 1992 some male students of adjoining hostel of the college were found sitting on the compound wall of the girls hostel. Later they entered into the compound and were seen walking without clothes on them. They went near the windows of the rooms of some of the girls and tried to pull the hand of one of the girls. Some five of these boys then climbed up along the drain pipes to the terrace of the girls hostel where a few girls were doing their studies. On seeing them the girls raised an alarm following which the students ran away. The girls recognised four out of these male students. On receipt of the complaint, the principal decided to hold an enquiry and entrusted the enquiry to three members of the staff. Students were called by the Enquiry committee one by one and contents of the complaint were explained to them. Due care was taken not to disclose the names of the girls who had made the complaint. The committee recorded statements some of the girls students in absence of the delinquent students. On the basis of the report the Enquiry Committee found them guilty. On the basis of the recommendation of the Enquiry Committee the students were expelled from the college for a minimum period of two calendar years and also from the hostel. The order inflicting the penalty was challenged before the High Court and contention was raised that the order of punishment was bad in law, being in violation of the principles of natural justice for the reason that the statements of the girls were recorded at their back. The said petition was rejected by the High Court. The order inflicting the penalty was challenged before the High Court and contention was raised that the order of punishment was bad in law, being in violation of the principles of natural justice for the reason that the statements of the girls were recorded at their back. The said petition was rejected by the High Court. The students took the matter in appeal before the Supreme Court. The Apex Court held thus : "principles of natural justice are not inflexible and may differ in different circumstances. When a proper enquiry is held by an enquiry committee consisting of three respectable and independent members of the staff as appointed by the Principal of a Medical College to enquire into the complaint of the inmates of the Girls hostel against certain male students of that college about their indecent behaviour with them in the hostel compound itself during odd hours of night, in such a case the rules of natural justice does not require that statement of girl-students should be recorded in presence of the male students concerned or that the latter should be furnished with the report of the enquiry committee. " ( 11 ) FROM conspectus of the aforesaid decisions it emerges that the approach and objectives of the criminal cases and Disciplinary proceedings being different and distinct the strict rule of criminal jurisprudence in appreciation of evidence does not apply to the disciplinary proceedings. Every ipse dixit of violation of principles of natural justice will not vitiate the enquiry unless the prejudice is pleaded and established. ( 12 ) IN the instant case the Enquiry Officer recorded statements of as many as six witnesses, namely, Kum. Bhagwanti Kalyani, Shri K. J. Kalyani, Kum. Kamala Naraindas, shri Naraindas Changrani, Shri J. H. Thacker (Headmaster) and Kum. Vijaya Naranji thacker. Written complaint was given by witness No. 1 i. e. , Bhagwanti Kalyani. Her statement has been supported by her father Shri K. J. Kalyani. Kum. Kamala Naraindas lodged an oral complaint and the said complaint finds support from the statement of her father Mr. Naraindas Changrani. Shri J. H. Thacker, Headmaster has stated that he had received oral complaints against Mr. Chauhan from certain students; namely, Kum. Tulsa chandrika, Vijaya and Kum. Kamala and written complaint from Kum. Bhagwanti kalyani and the nature of these complaints was same and these complaints showed that mr. Naraindas Changrani. Shri J. H. Thacker, Headmaster has stated that he had received oral complaints against Mr. Chauhan from certain students; namely, Kum. Tulsa chandrika, Vijaya and Kum. Kamala and written complaint from Kum. Bhagwanti kalyani and the nature of these complaints was same and these complaints showed that mr. Chauhan was in the habit of pulling hairs, throwing chalks, pinching cheeks and patting backs of girl students. He further stated that on receipt of such complaints he used to tell Mr. Chauhan to refrain from doing the acts complained of. However, he continued the same until he was transferred from Kandla School. Shri Chauhan was given an opportunity to cross examine these witnesses. It is of course true that one of the witnesses kum. Vijaya Naranji has not supported the case but that alone is not of much significance. The enquiry was initially defended by Mr. Chauhan himself but later on he took assistance of Mr. J. B. Dixit, another teacher. Mr. Dixit also appeared as defence witness. The request of Mr. Chauhan for re-examination of the witnesses was rejected. So far as the grievance with respect to supply of the documents is concerned, it is stated in para 19 of the enquiry report that those documents were made available to him on 24. 1. 1972. On appreciation of the material on record the Enquiry Officer arrived at the conclusion that mr. Chauhan conducted himself in a manner unbecoming of a teacher. The entire matter was again considered by the appellate authority. The Enquiry Officer was not conducting the trial in a criminal case. The nature and scope and the ambit of the trial and the departmental inquiry proceedings are different. The standard proof which is required and needed in criminal trial is not necessary in the departmental proceedings. The Enquiry officer has believed the statements of victim girls students corroborated by the statement of their parents and the Headmaster. There is absolutely no reason (o disturb the said finding of fact. The defence of the respondent has been rightly rejected by the Enquiry officer. It is difficult to believe that the father of the victim of the girl student will go to an extent of using his minor daughter for foisting a false case against another teacher. There is absolutely no reason (o disturb the said finding of fact. The defence of the respondent has been rightly rejected by the Enquiry officer. It is difficult to believe that the father of the victim of the girl student will go to an extent of using his minor daughter for foisting a false case against another teacher. It may also be noticed that the respondent was appointed as a teacher on temporary basis on a probation of two years in the year 1969 and the alleged incident took place even before he had completed the probation period. At the relevant time his qualifications was simply m. A. He was not even holding B. Ed, degree, as such he was not qualified trained teacher. In such a situation, particularly when he was still under probation as ordinary teacher, it is too much to expect that he was going to hold the office of Headmaster. There was no reason for Mr. Kalyani to entertain such apprehension. In any case no material has been produced on record to show that Mr. Kalyani and the respondent was in race of becoming headmaster. In view of this, the finding of the Enquiry Officer cannot be said to be in any way unreasonable or arbitrary which could be interfered by the Tribunal. The Tribunal was apparently in error in saying that the said enquiry is vitiated being in violation of the principles of natural justice, as some of the essential documents were not supplied to the respondent. It is evident from the enquirylry report that all the necessary documents were supplied to the respondent. Simply because that on 10. 4. 1971 the students were busy on the P. T. ground at the time of the alleged incident, the statement of Kum. Bhagwanti kalyani cannot be disbelieved, The Tribunal was also wrong in holding that the respondent was not given an opportunity to cross-examine the witnesses. The respondent was given opportunity to cross-examine all the witnesses. Permission to re-examine was of course rejected. In my view there was no sufficient reason to permit re-examination. ( 13 ) THE Tribunal has committed apparent error in holding that the order of dismissal was in violation of Sec. 36 (1) (b) of the Gujarat Secondary Education Act, 1972. The tribunal has completely overlooked order of Division Bench dated 20. 1 1. 1985 in LPA no. 130 of 1977. ( 13 ) THE Tribunal has committed apparent error in holding that the order of dismissal was in violation of Sec. 36 (1) (b) of the Gujarat Secondary Education Act, 1972. The tribunal has completely overlooked order of Division Bench dated 20. 1 1. 1985 in LPA no. 130 of 1977. Before the Division Bench respondent had agreed that he will not urge or contended before any Court or authority that the departmental enquiry or the order of removal is violative of the provisions of Grant-in-aid Code or of the provisions contained in Sec. 36 (1) (b) of the Gujarat Secondary Education Act, 1972. The Division Bench clarified that the Tribunal will not consider the contentions or the points which the parties have given up. This position is nor disputed by Mr. Mishra, learned Counsel for the respondent. ( 14 ) THE Tribunal also found fault with the order of dismissal on the ground that copy of the inquiry report was not given. It is of course true that in Union of India vs. Md. Rumzan Khan, reported in (1991) 1 SCC 588 the Apex Court held that the decision of the authority shall vitiate if the copy of the enquiry report is not given to the delinquent employee. However, the Apex Court in a subsequent decision in Managing Director, ecil vs. Karunakar, (Supra) held that the ratio of Ramzan s case applies prospectively and it will not vitiate the inquiry already completed prior thereto. The present enquiry was completed long back i. e. , prior to Ramzans case. Therefore, the Tribunals reasoning on this count is also unsustainable. ( 15 ) IN view of the aforesaid, I hold that the Tribunal committed serious illegality in setting aside the order of removal dated 12. 12. 1976. ( 16 ) COINING to the question of quantum of punishment in my view looking to the seriousness of allegation and particularly the position of a teacher which the respondent No. 1 occupied, the punishment awarded cannot be said to be harsh and excessive which calls for interference by this Court in exercise of powers under Arts. 226 or 227 of the Constitution of India. ( 17 ) CONSEQUENTLY, the Special Civil Application is allowed and the judgment of the tribunal dated 23. 9. 1996 is quashed and set aside. 226 or 227 of the Constitution of India. ( 17 ) CONSEQUENTLY, the Special Civil Application is allowed and the judgment of the tribunal dated 23. 9. 1996 is quashed and set aside. It is made clear that during the pendency of this Special Civil Application by order dated 25. 3. 1997 the petitioner was asked to pay a sum of Rs. 30,000/to the respondent employee and it is not in dispute that the said amount has been paid. Considering the facts and circumstances of the case, it is directed that the said amount shall not be recovered from the respondent employee. Rule is made absolute. No order as to costs. .