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2007 DIGILAW 844 (CAL)

Rathin Pal v. UNION OF INDIA

2007-12-04

KALYAN JYOTI SENGUPTA, MANIK MOHAN SARKAR

body2007
JUDGMENT:- (1) THIS application is directed against the judgment and order dated 3rd april, 2003 of the learned Tribunal whereby and whereunder the learned tribunal has upheld the termination of the applicants services resorting to rule 81b of the Central Civil Services (Classification, Control and Appeal)Rules, 1965. (2) SHORN of all details, the fact is that the applicant Rathin Pal was a music Teacher and while having classes, it is alleged that he committed immoral behaviour towards the minor girls students. There is no charge-sheet. Only on the basis of the complaints lodged by the minor girls students of class-V and also their guardians, respondents authority decided to proceed against him. Since beginning it was thought that summary procedure would be appropriate. Therefore, it appears that on receipt of large number of complaints, the principal constituted a Committee consisting of nine teachers, who submitted the report. The contents of the report are not on records which have been produced before us. (3) IN the said inquiry conducted by the Committee of teachers (hereinafter referred to as the first inquiry), Rathin Pal was summoned to explain his position. Obviously he denied the allegations levelled against him and he said that all false complaints had been procured in order to satisfy personal grudge harboured against him by a few number of colleagues. On receipt of the above report, the Principal of Kendriya vidyalaya, Garden Reach and one N. R. Murali, Education Officer, Kendriya vidyalaya, KVS SO, Kolkata, jointly inquired into the matter and before them Rathin Pal was summoned and was asked for explanation about the complaints made against him. He denied all the allegations levelled against him and with emphasis he said that those charges were fabricated and motivated. After considering all these complaints and the representation of sri Pal, this Committee, namely, the Second Committee did not accept the version of Sri Pal and came to the fact finding that Rathin Pal had intentionally misbehaved with the girl students and then of their own recommended for disposal of the matter under Article 81-B of Kendriya vidyalaya Education Code. Then Assistant Commissioner only forwarded the summary of inquiry into the moral turpitude against Sri R. Pal and the second report. While despatching these documents of summary inquiry and recommending the same to the Commissioner, Assistant Commissioner came to his own findings that the complaints against Rathin Pal are proved beyond doubt. Then Assistant Commissioner only forwarded the summary of inquiry into the moral turpitude against Sri R. Pal and the second report. While despatching these documents of summary inquiry and recommending the same to the Commissioner, Assistant Commissioner came to his own findings that the complaints against Rathin Pal are proved beyond doubt. He also recommended that Rathin should be proceeded under article 81 -B of the Education Code. On report of this report the Commissioner has passed the impugned order. It is appropriate to quote the text of the article 81 -B of the said Code: "81 (B). TERMINATION OF SERVICES OF AN EMPLOYEE FOUND guilty OF IMMORAL BEHAVIOUR TOWARDS STUDENTS : where 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 months or three months 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 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 enquiry and he shall keep the Chairman of the Sangathan informed of the circumstances leading to such termination of services" (4) FROM the language mentioned in the aforesaid Article it is thus clear that Commissioner himself has to be 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 and exhibition of immoral sexual behaviour towards any student. (5) FROM the records we find he has not done it, rather he has relied on two reports, first report has not been placed before us and we do not know what the fact finding of the first report was. (5) FROM the records we find he has not done it, rather he has relied on two reports, first report has not been placed before us and we do not know what the fact finding of the first report was. The second report nowhere suggests that Rathin Pal is guilty of moral turpitude involving sexual offence and exhibition of immoral sexual behaviour towards the said girl students. (6) IN the record we find that satisfaction arrived at by the commissioner is based on the said two reports, which do not, under any circumstances, suggests the requirements as mentioned in the aforesaid article. He has simply relied on the said two reports. (7) WE do not find any reason why two enquiries were conducted when Rathin Pal was asked to explain and when he denies the allegations levelled against him regular proceedings would have perhaps been appropriate. We have no doubt in our mind that the subjective satisfaction of the Commissioner is not there and it is not reflected in the original order kept in the record. But in the text of the orders which is on record, he has said something different from what he has come to his own fact finding. (8) MR, Sanyal submits that this provision is a stringent one, and therefore, each and every pre-condition has to be satisfied to apply the aforesaid provision. He says that the Commissioners personal satisfaction is a must, and then his conclusion upon a summary enquiry to be held by him and he should not have delegated it to any other person and then come to the conclusion that it is deemed proper and practicable in the circumstances not to hold any enquiry and to find prima facie guilty of moral turpitude involving sexual offence and exhibition of immoral sexual behaviour towards any student. If the decision making process is patently irregular, the decision must go. The learned Counsel for the respondent submits citing a reported decision of the Supreme Court (1997)2 SCC P 534 (Avinash Nagra v. Navodaya Vidyalaya Samity and Ors.), an unreported decision of the Supreme Court in the case of Director, Novodaya Vidalaya samity and Ors. v. Babban Prasad Yadav and Anr. , in SLP (C) No. 9808 of 2002, and unreported Division Bench Judgment of Guwahati High Court in W. P. (C) No. 749 of 2004 (Union of India and Ors. v. Babban Prasad Yadav and Anr. , in SLP (C) No. 9808 of 2002, and unreported Division Bench Judgment of Guwahati High Court in W. P. (C) No. 749 of 2004 (Union of India and Ors. v. Sujit Suklabaidya), unreported decision of the Division Bench of Delhi High Court in W. P. (C)23549/2005 in the case of Krishna Murari Sharma v. Union of India and Ors. submits that in this case all steps have been taken lawfully and for this purpose two enquiries were held and from the depositions and statements made by the minor victim girls and also other girls and also complaints of the guardians, it will appear that the applicant is prima facie guilty of moral turpitude involving sexual offence for exhibition of immoral sexual behaviour towards many students. Based on these two reports, the Commissioner has dispensed with regular inquiry and has imposed punishment under article 81-B of the Code. He says that this Court will not interfere with this order, as application of the aforesaid provision in a case of this nature, has been upheld by the large number of decisions of Supreme Court and High courts as quoted above. He says, it is not necessary that the commissioners satisfaction should be arrived at by his own findings and enquiry may be delegated to someone else. Moreover, the appellate authority has also examined this aspect and affirmed this. It should not be interfered with. (9) IN this case the sole question is, whether the aforesaid provision has been properly followed or not. Mr. Sanyal is right in saying that the stringent provision has to be applied strictly and following all the conditions mentioned therein. (10) WE are of the view that in a case of this nature, Commissioners personal satisfaction is required and he himself has to hold a summary inquiry. Here, he did not hold any enquiry, but relied on substantially a report of the two Enquiry Committee and then recommendation of the assistant Commissioner. (10) WE are of the view that in a case of this nature, Commissioners personal satisfaction is required and he himself has to hold a summary inquiry. Here, he did not hold any enquiry, but relied on substantially a report of the two Enquiry Committee and then recommendation of the assistant Commissioner. Therefore, his decision must have been influenced by the recommendations made by the respective committees, even the fact finding of one of such report does not suggest that petitioner is prima facie guilty of moral turpitude involving sexual offence or exhibition of immoral offence of sexual behaviour towards any student, rather the report of the enquiry committee consisting of the Principal Kendriya Vidyalaya, Garden reach and Education Officer Kendriya Vidyalaya, R.O., Kolkata, says that rathin had intentionally mis-behaved with the girl students and they have not recommended that he is guilty of moral turpitude involving sexual offence or exhibition of immoral sexual behaviour. If those two reports are to be relied on, then certainly the aforesaid provision cannot be applied. But we hasten to add that there are materials for which above provision may be resorted to, but it has not been done in a proper manner as has been indicated above. Unfortunately the learned Tribunal examined in details the records, how the decision making process was adopted and eventually decision was taken. We find from the records that the Commissioner has no doubt recorded reasons as to why the summary procedure is to be adopted. But then decision has not been taken in accordance with procedure laid down as we have explained above. Therefore, the judgment and order of the learned Tribunal is not sustainable, nor the order of punishment of commissioner as well as the appellate authority. Hence all are set aside. (11) THE applicants will be reinstated with 40% back wages within 7 days from the date of communication of this order, and from the date of reinstatement within three months he shall conclude enquiry as above. (12) THE aforesaid direction for payment of back wages shall be carried out within a period of two months from the date of reinstatement of the applicant. (13) WE give liberty to the Commissioner to proceed against the applicant afresh. (12) THE aforesaid direction for payment of back wages shall be carried out within a period of two months from the date of reinstatement of the applicant. (13) WE give liberty to the Commissioner to proceed against the applicant afresh. (14) IN the process he will re-examine whether it is a fit case where the summary procedure, namely Article 81 -B of the Education Code should be resorted to on the materials available on records. If he thinks that such procedure shall be adopted, then he himself shall make summary enquiry and come to his own satisfaction that applicant is prima facie guilty of moral turpitude involving moral sexual offence and exhibition of immoral sexual behaviour towards any student. After these conditions are satisfied, he will be at liberty to pass appropriate orders. If he thinks that summary procedure is not an appropriate one, it would be open for him to initiate or cause to initiate regular departmental proceedings. (15) THIS decision has to be taken by the Commissioner within a period of three months from the date of communication of this order. There shall be no order as to costs.