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2014 DIGILAW 164 (TRI)

Sankar Datta v. State of Tripura

2014-05-06

DEEPAK GUPTA, S.TALAPATRA

body2014
JUDGMENT S. Talapatra, J.:- The petitioner was working as the Assistant Teacher in a Government School namely, Office Tilla Higher Secondary School, Bishalgarh. A female student of that school, the name withheld for protecting her identity made a complaint to the head of the institution alleging ’misbehaviour’ of the petitioner when she went to his residence for taking tuition in the early morning on 02.03.2000. A representation was also filed by the Students Federation of India to the Education Minister alleging ’physical assault’ and on the petitioner’s antecedents of similar conducts on 11.03.2000. On confronting such public uproar, the Director of School Eduction by his letter No. F.4(1-2949)-DSE/2000 dated 22.03.2000 had instituted a preliminary inquiry into those allegations. The report of the said preliminary inquiry was submitted by the Dy. Director of Education, West District Zonal office on 11.04.2000. The report observed that: There is possibility that Sri Sankar Datta, A/T took advantage of the opportunity and misbehaved with ........ (name concealed) 2. Thereafter, the Director of School Education in exercise of the powers conferred by Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, the CCS (CC & A) Rules in short, framed the articles of charge against the petitioner by the memorandum No. F.4(1-2949)-DSE/2000 dated 21.06.2000. For purpose of reference, the articles of charge as framed are reproduced hereunder: Article-I Shri Sankar Datta, while functioning as Assistant Teacher at Office Tilla Higher Secondary School, Bishalgarh, West Tripura has been accused who accused of being involved in sexual behaviour with one of his female student Smt. Tuhina Ganguly, a student of Class-XI of Office Tilla Higher Secondary School. Sri Datta, Asstt. Teacher was involved in the aforesaid sexual misbehaviour on 2nd March, 2000 A.D. in between the period from 6’ O’ clock to 7 O’ clock in the morning at the residence of Shri Datta situated at Milansangha, Agartala. The fact was reported by the victim to the Asstt. Headmistress, Office Tilla Higher Secondary School who has been acting as the Head of the Institution. The incident caused a resentment among the students of the school and consequent upon this an organized action of lodging complaint took place against Shir Datta on the issue of the Students Federation of India. Consequent upon this a preliminary departmental enquiry was conducted by the Dy. The incident caused a resentment among the students of the school and consequent upon this an organized action of lodging complaint took place against Shir Datta on the issue of the Students Federation of India. Consequent upon this a preliminary departmental enquiry was conducted by the Dy. Director of Education, West District Zonal Office, Agartala on the act of sexual misbehaviour with the female student by Shri Dutta, Asstt. Teacher has been prima-facie established. The above act of sexual misbehaviour with a female student of his School by Shri Sankar Datta, Asstt. Teacher is completely unbecoming on the part of a Government employee engaged in a noble profession of teaching which is a misconduct under the provision of Rule 3 of TCS (Conduct) (Third Amendment) Rules, 1998, r.w. Rule 14 of the CCS (CC & A) Rules, 1965. Article-II Shri Sankar Datta while functioning as the Assistant Teacher of Office Tilla Higher Secondary School, Bishalgarh, West Tripura was engaged in taking private tuition of the students reading in his own School. Taking private tuition on the part of an Assistant Teacher working in a Government School as banned by Government Circular No. F.11(18-59)-DSE/96 dated 18.05.1996 and thus taking private tuition is tantamount to violation of Government order and hence a misconduct within the meaning of Rule 3 of TCS (Conduct) (Third Amendment) Rules, 1998, r.w. Rule 14 of the CCS (CC & A) Rules, 1965. 3. By filing a written statement of defence dated 05.07.2000, the petitioner had disputed those articles of charges by contending that he did not commit any misconduct within the ambit of Rule 3 of the Tripura Civil Services (Conduct) Rules, 1988. According to the petitioner, the allegations were made against him a bid to assassinate his character. 4. The undisputed fact is that on culmination of the inquiry, the findings were furnished to the disciplinary Authority on 30.01.2003 observing that: As an upshot of the discussion made hereinabove, I am of the considered opinion that the prosecution has been successful to bring home the charge drawn against the A.O. vide Article-I. But I find that the prosecution failed to prove the charge drawn up against A.O. vide Article II and hence the charge drawn up vide Article II cannot be sustained and it is decided accordingly. 5. 5. By memorandum No. F.4(1-2949)-DSE/2000 dated 17.03.2003, Annexure-8 to the writ petition, the petitioner was asked to make his representation, if any within 15 days from the date of receipt of the said memorandum. The petitioner filed his representation on 03.04.2003, Annexure-9 to the writ petition, wherefrom it is found that the petitioner has admitted the presence of that female student in his residence in Para-3.1 in the following words: ...(name concealed) was found to be unmindful to her studies and her movements did not appear nice to me. This is what I cautioned her in the morning of 2nd March. At first she was taken back but soon she could understand her fault. Cooled down and taken some notes. Thereafter suddenly I felt ill, felt on the bed and asked .......... to fetch me medicine. In her cross-examination, PW-1 ........ (the name concealed) deposes: Shri Sankar Datta told me that he was suffering from heart diseases. On the date of incident at the relevant time he told me to fetch one tablet, from a fixed place in his house." .... Gave me the tablet, gave me water and I took the medicine and my life was saved ..... name concealed, went back. But the principal ground of objection in the representation is that there is no evidence on record to prove ’sexual misbehaviour’. Even though it has been recorded in the inquiry report that there was ’sexual misbehaviour’ but the female student did not depose in her examination regarding ’sexual misbehaviour with her’. 6. The petitioner has unequivocally stated in her representation that "the initial statement is usually unmixed truth..... (name concealed) first spoke to her mother. She told her about of an attempt of misbehaviour. Had there really been a misbehaviour by me there is no reason of her hiding it to her mother." The petitioner has stated that the student organization had blown up the issue maliciously. The Director of School Education, the disciplinary authority, even though agreed with the finding of the inquiring authority on the Article-I but did not concur with his finding on Article-II. But the disciplinary authority did not hold directly the Article-II as proved. But a finding contrary to the finding of the inquiring authority has been returned. The Director of School Education, the disciplinary authority, even though agreed with the finding of the inquiring authority on the Article-I but did not concur with his finding on Article-II. But the disciplinary authority did not hold directly the Article-II as proved. But a finding contrary to the finding of the inquiring authority has been returned. Finally, by the order under No. F. No. 4(1-2949)-DSE/2000 dated 15.05.2003, Annexure-10 to the writ petition, the disciplinary authority imposed the penalty on the petitioner as under: After careful consideration I proceed to hold that the Accused Officer is guilty of charges in terms of the CCS (CCA) Rules, 1965. I, therefore, inflict punishment upon the A.O., Sankar Datta, A/T to the effect that his annual increment for consecutive 3(three) years will be withheld without any cumulative effect. By this, I think that this will meet the ends of justice. On 05.07.2003 by issuing a corrigendum under the even No. added that "whatsoever sum was received by Shri Sankar Datta, A/T from the date of suspension to the date prior to the date of his rejoining in duty on revocation of suspension, it should be the salary of Shri Datta, A/T for the period of suspension." 7. Being aggrieved by the said order of punishment dated 15.05.2003, the petitioner filed an appeal to the Secretary to the Government of Tripura, Department of Education under Rule 23 of the CCS (CC & A) Rules, 1965 on the grounds that the Article-I cannot be held to be proved under any circumstances. That apart, the disciplinary authority has not affirmed with reasons the findings of the inquiring authority. It has been contended further that the glaring violation of the procedural rules has taken place in conducting the inquiry. The appellate authority afforded a further opportunity to the petitioner of hearing and disposed the appeal by the order under No. F.4(1-2149)/DSE/2000 dated 04.11.2003 observing as under: 5. Now, the question comes whether the penalty as imposed by the Disciplinary Authority is proportionate to the degree of offence committed by the appellant. The appellant was charge sheeted for committing sexual misbehaviour with a female student of his school in Article-I. He was also charge sheeted for taking private tuition in Article-II. Now, the question comes whether the penalty as imposed by the Disciplinary Authority is proportionate to the degree of offence committed by the appellant. The appellant was charge sheeted for committing sexual misbehaviour with a female student of his school in Article-I. He was also charge sheeted for taking private tuition in Article-II. The charge of sexual misbehaviour with the female student who came to his residence to take private tuition was established on duly conducted inquiry by the authorized Inquiring Authority. The charge of taking private tuition, though not established in course of inquiry, it is established by circumstantial evidences, and this has been well spoken of by the Disciplinary Authority in the penalty order dated 15.05.2003. In a Departmental Proceedings, circumstantial evidences are considered vital evidences for arriving at the material decision. Sexual misbehaviour with a female student by a teacher is a very heinous offence. A teacher is the parent substitute of a student. Involvement of a teacher in sexual misbehaviour with a student is beyond the professional ethics of a teacher. The appellant was involved in such an offence as to cause the defamation of the Education (School) Department as a whole. Any reasonable person would hold that such a teacher must not be retained in service. 6. In view of the discussion made above and after taking all aspects of the case in due consideration, it is observed that the penalty as imposed by the Disciplinary Authority in the form of withholding the annual increment for 3 consecutive years without cumulative effect can in no case be considered to have been proportionate to the degree of offence committed by the appellant, and for the sake of justice, the undersigned decides to enhance the quantum of penalty to be imposed on the appellant and, therefore, order that Sri Sankar Datta, Assistant Teacher, Teliamura H/S School is removed from service from the date of issue of this order. 8. It appears that the punishment was enhanced without any notice to the petitioner. The petitioner issued a notice to the appellate authority as well as to the disciplinary authority, as available at Annexure-14 of the writ petition for revoking the order of punishment within 7(seven) days. In the said notice, it has been stated that "the order of removal passed on 4th November, 2003 by the notice receiver No. 1 is per se ex-facie illegal and without jurisdiction". In the said notice, it has been stated that "the order of removal passed on 4th November, 2003 by the notice receiver No. 1 is per se ex-facie illegal and without jurisdiction". No positive result yielded from that exercise and on 07.01.2004 the petitioner has filed this petition challenging the order dated 15.05.2002, Annexure-10 to the writ petition and the order of the appellate authority dated 04.11.2003, Annexure-13 to the writ petition. 9. During pendency of this petition, the appellate authority had issued a fresh memorandum under No. F.5(1-2949)-SE-E(DP)/2005 dated 21.05.2005, Annexure-16 to the writ petition asking the petitioner to submit representation if he so wished against the enhanced penalty proposed by the said memorandum within a period of 10 days from the date of receipt. The said memorandum cautioned the petitioner that on his failure to submit the representation, the ex-parte decision would be taken. The petitioner had filed the representation on 11.06.2005 contending that the reasons so given in the said memorandum did not disclose anything why the appellate authority held the misconduct to be grave one and that how the appellate authority could issue such memorandum. Before issuance of the said memorandum dated 21.05.2005 an order was passed by the appellate authority cancelling the order dated 04.11.2003 on observing some procedural defects while passing the order dated 04.11.2003. However, after receipt of the representation from the petitioner by a fresh order under F.5(1-2949)-SE-E(DP)/2005 dated 28.06.2005, the appellate authority has passed the order imposing punishment of removal from the service, which shall not be a disqualification for the future employment under the Government as specified in Clause (VII) of the Rule 11 of the CCS (CC & A) Rules, 1965. 10. By way of amending the writ petition, the petitioner has challenged both the memoranda dated 21.05.2005, Annexure-16 to the writ petition and the order dated 28.06.2005, Annexure-18 to the writ petition. 11. Mr. S. Deb, learned senior counsel has focused his submission primarily on three aspects namely (i) there is no evidence of ’sexual misbehaviour’ (ii) the procedure that has been followed by the appellate authority by issuing the Memorandum dated 21.05.2005, Annexure-16 to the writ petition is absolutely without authority premeditated and prompted by unbridled prejudice and (iii) the proportionality of the punishment of removal from the service. 12. Mr. 12. Mr. Deb, learned senior counsel having referred to the original complaint filed by the petitioner has submitted that the words ’ashalin’ and ’ashovan’ in Bengali can never mean and connote ’sexual misbehaviour’. Both the words in usual parlance mean low in decency or in some context, indecent. He has further submitted that the petitioner has explained the situation quite elaborately but while returning the finding neither the inquiring authority nor the disciplinary authority as it appears has taken no consideration of the petitioner’s version. According to Mr. Deb, learned senior counsel that the complaining student neither used the words ’sexual misbehaviour’ nor is that available in the evidence. He has further criticised the inquiry report for not providing the reasons for holding the Article-I as proved. The inquiring authority has jumped into the conclusion, which cannot be held supported by evidence. Having referred to the records, Mr. Deb, learned senior counsel has finally contended that both the complaining student and his mother who appeared in the inquiry being case No. 764/INQ/2000 have stated that the petitioner ’misbehaved’ or ’attempted to misbehave’ with the complaining student. Even one independent witness, PW-3 has categorically stated neither the complaining student nor her mother told him about how the petitioner misbehaved with her. Even the officer who conducted the preliminary inquiry (PW-4) has categorically stated that the complaining student had simply stated to her that the petitioner misbehaved with her but she did not disclose as to how she was misbehaved. She has also admitted the preliminary report was submitted without recording any statement of the petitioner. Mr. Deb, learned senior counsel has referred a decision of the apex court in Union of India vs. H.C. Goyel, reported in AIR 1964 SC 364 on issuing of certiorari interfering with finding of guilt based on no evidence. The apex court in H.C. Goyel (supra) has held as under: The High Court has powered under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which impugned order of dismissal rests is not supported by any evidence at all. The apex court in H.C. Goyel (supra) has held as under: The High Court has powered under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which impugned order of dismissal rests is not supported by any evidence at all. It is true that order of dismissal which may be passed against a Government servant found guilty of misconduct, can be described as an administrative order; nevertheless, the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charges framed against him are in the nature of quasi-judicial proceedings and there can be little doubt that a writ of certiorari, for instance can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said proceedings, which is the basis of his dismissal, is based on no evidence. It has been further held that: We are not prepared to accept this contention. Mala fide exercise of power can be attacked independently on the ground that it is mala fide. Such an exercise of power is always liable to be quashed on the main ground that it is not a bona fide exercise of power. But we are not prepared to hold that if mala fides are not alleged and bona fides are assumed in favour of the appellant, its conclusion on a question of fact cannot be successfully challenged even if it is manifest that there is no evidence to support. The two infirmities are separate and distinct though, conceivably, in some cases both may be present.There may be cases of no evidence even where the Government is acting bona fide; the said infirmity may also exist where the Government is acting mala fide and in that case the conclusion of the Government not supported by any evidence may be the result of mala fides but that does not mean that it is proved that there is no evidence to support the conclusion of the Government, a writ of certiorari will not issue without further proof of mala fides. [Emphasis added] 13. Mr. Deb, learned senior counsel has submitted that no notice was issued either for the pre-decisional or for post decisional hearing. [Emphasis added] 13. Mr. Deb, learned senior counsel has submitted that no notice was issued either for the pre-decisional or for post decisional hearing. That apart he has pointed out that as the inquiring authority held that the Article-II had fallen through the disciplinary authority cannot hold that the said charge has been proved without notice to the delinquent officer. For the petitioner, reliance has been placed on Institute of Chartered Accounts of India Vs. L.K. Ratna & Others, reported in 1986(4) SCC 537 where it has been held that without pre-decisional hearing if the penalty is imposed it vitiates the entire proceeding. The apex court in L.K. Ratna (supra) having referred to Sir William Wade’s erudite and classic work on ’Administrative Law’, 5th addition, has reiterated that in principle there ought to be an observance of natural justice equally at both stages and if natural justice is violated at the first stage, the right of appeal is not so much a true right of appeal as a corrected initial hearing: instead of fair trial followed by appeal, the procedure is reduced to unfair trial followed by fair trial. Sir Wade as reproduced in L.K. Ratna (supra) made reference to the observation of Megarry, J. in Leary vs. National Union of Vehicle Builders: (1971) Ch 34, 49 and observed as under: If one accepts the contention that a defect of natural justice in the trial body can be cured by the presence of natural justice in the appellate body, this has the result of depriving the member of his right of appeal from the expelling body. If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should be told that he ought to be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de novo, the member is being stripped of his right to appeal to another body from the effective decision to expel him. I cannot think that natural justice is satisfied by a process whereby an unfair trial, though not resulting in a valid expulsion, will nevertheless have the effect of depriving the member of his right of appeal when a valid decision to expel him is subsequently made. I cannot think that natural justice is satisfied by a process whereby an unfair trial, though not resulting in a valid expulsion, will nevertheless have the effect of depriving the member of his right of appeal when a valid decision to expel him is subsequently made. Such a deprivation would be a powerful result to be achieved by what in law is a mere nullity; and it is no more triviality that might be justified on the ground that natural justice does not mean perfect justice. As a general rule, at all events, I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body. 14. In High Court of Judicature at Bombay through its Registrar vs. Shashikant S. Patil & Another, reported in (2000) 1 SCC 416 , the apex court has held that the disciplinarily authority is under duty to ask the delinquent office by placing before him all such reasons having set out in the notice, to show cause why the conclusion of the inquiring authority be not dissented from and based on the reasons so provided why the appropriate penal action should not be taken against him. 15. Mr. Deb, learned senior counsel has referred to Kalabharati Advertising vs. Hemant Vimalath Narichania & Others, reported in (2010) 9 SCC 437 to contend that non-observance may be tantamount to malice in law. For purpose of appreciation, the following passages from Kalabharati (supra) be reproduced: 25. The State is under obligation to act fairly without ill will or malice in fact or in law. ’Legal malice’ or ’malice in law’ means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for ’purposes foreign to those for which it is in law intended’. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for ’purposes foreign to those for which it is in law intended’. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts. [Vide ADM, Jabalpur v. Shivakant Shukla: (1976) 2 SCC 521 , S.R. Venkataraman v. Union of India: (1979) 2 SCC 491 , State of A.P. v. Goverdhanlal Pitti: (2003) 4 SCC 739 , BPL Ltd. v. S.P. Gururaja: (2003) 8 SCC 567 and W.B. SEB v. Dilip Kumar Ray: (2007) 14 SCC 568 .] 26. Passing an order for an unauthorised purpose constitutes malice in law. [Vide Punjab SEB Ltd. v. Zora Singh: (2005) 6 SCC 776 and Union of India v. V. Ramakrishnan: (2005) 8 SCC 394 ]. The principle laid down in Kalabharati (supra) has been reiterated by the apex court in G. Jayalal vs. Union of India, (2013) 7 SCC 150 . 16. In the last lap of his submissions, Mr. Deb, learned senior counsel has contended that even the punishment is shockingly disproportionate. According to Mr. Deb, learned senior counsel that the disciplinary authority has taken stock of both the imputations of misconduct for purpose of imposing punishment. Thus the order of punishment has vitiated entirely as that was passed without notice in respect of finding on the Article-II. The appellate authority, acting in gross disregard to the procedural propriety and jurisdictional limit, has enhanced that punishment to that of the removal from service. The appellate authority at the first stage enhanced the punishment without any notice to the petitioner and when the said order had been challenged in this writ petition, the appellate authority took up the correctional jurisdiction without leave of the court and without authority inasmuch as Rule 29 of the Central Civil Services (Classification, Control & Appeal), 1965 provides for revision and review only when no appeal is preferred or no appeal is allowed. But that power cannot be exercised by the appellate authority in the manner that has been exercised in this case. Ancillary to that Mr. But that power cannot be exercised by the appellate authority in the manner that has been exercised in this case. Ancillary to that Mr. Deb, learned senior counsel has submitted that the appeal has been decided in violation of the standard procedure laid down in Rule 27 of the said Rules, 1965. 17. Mr. Deb, learned senior counsel has placed reliance on series of decisions on the doctrine of proportionality to contend that aspects of the proportionality to are amenable to the judicial review. In R v Secretary of State for the Home Department: [2001] UKHL 26 : (2001) 3 All ER 433, where it has been held that: To assess the balance which the decision maker has struck, not merely whether it is within the range of the rational or reasonable decisions. Secondly, the proportionally test may go further than the traditional grounds of review in as much as it may require attention to be directed to the relative weight accorded to interest and considerations. Even the heightened security test is not necessarily appropriate to the protection of human rights. In other words, the intensity of review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued. 18. In Chairman-cum-Managing Director, Coal India Ltd. and Another vs. Mukul Kr. Choudhuri, reported in (2009) 15 SCC 620 , the apex court having referred to the Union of India vs. G. Ganayutham, reported in (1997) 7 SCC 463 has held as under: This Court considered some important English decisions viz. Associated Provincial Pictures Houses Ltd. v. Wednesbury Corpn.: (1948) 1 KB 223, Council of Civil Service Unions v. Minister for Civil Service: 1985 AC 374, R v. Goldstein: (1983) 1 WLR 151 and R v. Secy. of State for the Home Deptt., exp Brind: (1991) 2 WLR 588 and few decisions of this Court viz. Associated Provincial Pictures Houses Ltd. v. Wednesbury Corpn.: (1948) 1 KB 223, Council of Civil Service Unions v. Minister for Civil Service: 1985 AC 374, R v. Goldstein: (1983) 1 WLR 151 and R v. Secy. of State for the Home Deptt., exp Brind: (1991) 2 WLR 588 and few decisions of this Court viz. Ranjit Thakur v. Union of India: (1987) 4 SCC 611 , State of Maharashtra v. M.H. Mazumdar: (1988) 2 SCC 52 , Ex-Naik Sardar Singh v. Union of India: (1991) 3 SCC 213 , Tata Cellular v. Union of India: (1994) 6 SCC 651 , State of A.P. v. McDowell & Co.: (1996) 3 SCC 709 and summed up position of proportionality in administrative law in England and India thus: (G. Ganayuthaam case (supra) SCC pp. 478-79, para 31) 1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury: (1948) 1 KB 223 test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator. This is the Wednesbury test. (2) The court would not interfere with the administrator’s decision unless it was illegal or suffered from procedural impropriety or was irrational--in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU: 1985 AC 374principles. (3)(a) As per Bugdaycay: 1987 AC 514, Brind: (1991) 2 WLR 577and Smith: 1996 QB 517 as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done. (3)(a) As per Bugdaycay: 1987 AC 514, Brind: (1991) 2 WLR 577and Smith: 1996 QB 517 as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done. (3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon. (4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority. (4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of "proportionality" and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14. 19. Even though G. Ganayutham (supra) has been separately relied on by counsel for the petitioner this Court prefers not to elaborately refer to the said decision of the apex court inasmuch as in Mukul Kr. Choudhuri (supra) the apex court has extensively considered and reiterated the principles as laid therein. 20. In Coimbatore District Central Co-operative Bank Vs. Coimbatore District Central Co-operative Bank Employees Association and Anr., reported in (2007) 4 SCC 669 , the apex court has again elaborately re-examined the doctrine of proportionality, its applicability in India and the balancing test or the necessity test under the doctrine of proportionality. 20. In Coimbatore District Central Co-operative Bank Vs. Coimbatore District Central Co-operative Bank Employees Association and Anr., reported in (2007) 4 SCC 669 , the apex court has again elaborately re-examined the doctrine of proportionality, its applicability in India and the balancing test or the necessity test under the doctrine of proportionality. It has been held in Coimbatore District Central Co-operative Bank (supra) that the legal system of India has accepted the doctrine of proportionality but with certain safeguards to the decision made by the disciplinary authority. It has been held that normally when the finding of fact is recorded in the inquiry, it cannot be interfered with unless such finding is based on ’no evidence’ or is perverse, or is as such that no reasonable man in the circumstances of the case would have reached such finding. It has reaffirmed the correctness of Council of Civil Service Union vs. Minister for Civil Service (CCSU), reported in (1984) 3 ALL ER 935 (HL) where Lord Diplock proclaimed that judicial review has developed to a stage today, when without reiterating any analysis of the step by which the development has come about, one can conveniently classify under three heads the grounds on which the administrative action is subject to control by the judicial review. The first ground is ’illegality’, the second ’irrationality’ and the third is ’procedural impropriety’. In Ranjit Thakur vs. Union of India reported in (1987) 4 SCC 611 , the apex court has expanded the scope of judicial review following the principles of the CCSU by holding that: The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defence of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review 21. The apex court in Chairman, All India Railway Rec. Board and Anr. Vs. Irrationality and perversity are recognized grounds of judicial review 21. The apex court in Chairman, All India Railway Rec. Board and Anr. Vs. K. Shyam Kumar and Ors. reported in (2010) 6 SCC 614 had occasion to revisit the doctrine of proportionality within the precincts of illegality, procedural impropriety and irrationality. It has been held that Wednesbury: (1947) 2 ALL ER 680 (CO) and proportionality continue to co-exist and the proportionality test is more and more applied when there is violation of human rights and fundamental freedom and the Wednesbury principle finds its presence more on the domestic law when there is violation of citizens ordinary right. Proportionally principle has not so far replaced the Wednesbury principle and the time has not been reached to say good bye Wednesbury much less its burial. Therefore, the reasonableness or Wednesbury’s unreasonableness plays a very important role in the proportionality test. The proportionality test may require the attention of the Court to the related weight according to interest and consideration. Finally, in the process a correct balance has to be struck. 22. At one point of time Mr. Deb, learned senior counsel has referred to the path breaking decision of the apex court in B.C. Chaturvedi Vs. Union of India and others, reported in 1995 6 SCC 749 , on the aspects of proportionality and judicial review. 23. In response to the submission made for the petitioner, Ms. A.S. Lodh, learned Addl. G.A. appearing for the respondents has made a robust endeavour to relegate those. She has contended that the sequence of events narrated by the witnesses would lead to an irresistible inference that the petitioner had definitely made some advances of sexual nature. As such, on the touchstone of preponderance of probability it can be reasonably held that such conduct was entirely unwelcome to the complaining student. When the occurrence took place, presence of other persons was improbable. Even though the petitioner has made a casual reference that his room where the incident had taken place is flanked by the room of the owner. The petitioner has also insinuated the complaining student to place a convenient backdrop to project that the complaining student for retaliating his resistance against the affair the complaining student was having with a person of his locality had cooked up a false story. But he has neither proved that incident nor any other witnesses hinted to such incident. The petitioner has also insinuated the complaining student to place a convenient backdrop to project that the complaining student for retaliating his resistance against the affair the complaining student was having with a person of his locality had cooked up a false story. But he has neither proved that incident nor any other witnesses hinted to such incident. That reflects the fabric of mind of the petitioner. 24. Ms. A.S. Lodh, learned Addl. G.A. appearing for the respondents has, having referred to Bishaka vs. State of Rajasthan, reported in JT 1997(7) SC 384 stated that sexual harassment includes such unwelcome sexually determined behaviour, whether directly or by implication as (a) physical contact and advances (b) a demand of request for sexual favours (c) sexually coloured remarks (d) showing pornography and (e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature. The ’sexual misbehaviour’ is referred in the Articles of Charge is within the meaning of verbal conduct of sexual nature and that has been adequately proved in the inquiry. She has also placed reliance on High Court of Judicature at Bombay through its Registrar Vs. Udaysingh and Others, reported in AIR 1997 SC 2286 to contend that in the case of disciplinary inquiry the technical rules of evidence has no application. The doctrine of proved beyond doubt has no application. Preponderance of the probabilities and some materials on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. The test laid down by various judgment of the apex court is to see whether there is evidence on record to reach the conclusion that the delinquent has committed misconduct and whether as a reasonable man, in the circumstances, would be justified in reaching that conclusion. The question, therefore, is whether on the basis of evidence on record the charge of misconduct has been proved or not. During the inquiry the circumstances unfolded by the evidence are sufficient to hold that the charge against the delinquent has been proved. Ms. A.S. Lodh, learned Addl. G.A. has placed before us the observation of the apex court in Manager, Nirmala Senior Secondary School, Port Blair vs. N.I. Khan and others, reported in AIR 2004 SC 499 , where an image of a teacher has been depicted with fervour of morality: 2. Educational institutions are temples of learning. Ms. A.S. Lodh, learned Addl. G.A. has placed before us the observation of the apex court in Manager, Nirmala Senior Secondary School, Port Blair vs. N.I. Khan and others, reported in AIR 2004 SC 499 , where an image of a teacher has been depicted with fervour of morality: 2. Educational institutions are temples of learning. The virtues of human intelligence are mastered and harmonised by education where there is complete harmony between the teacher and the taught, where the teacher imparts and the student receives, where there is complete dedication of the teacher and the taught in learning, where there is discipline between the teacher and the taught, where both are worshipers of learning, no discord or challenge will arise. An educational institution runs smoothly when the teacher and the taught are engaged in the common ideal of pursuit of knowledge. It is, therefore, manifest that the appointment of teachers is an important part in educational institutions. The qualifications and the character of the teachers are really important. 25. For appreciating the submissions made by the learned counsel appearing for the parties, we have meticulously scrutinized the records of the proceeding and there is no amount of doubt in our mind that the Article-I, as reproduced has been adequately proved against the petitioner inasmuch as verbal conduct of sexual nature which is definitely is a misconduct under the provisions of Rule 3 of the TCS (Conduct) Rules, 1998 is manifest in the circumstantial evidence. From the circumstances as narrated by the witnesses and the complaining student, any reasonable man would come to inference that the petitioner has breached the trust as placed by the complaining student on him as the teacher by conducting himself in a manner which is unwelcome and non verbal act of sexual nature couched with attempt of physical contact. Without any notice to the petitioner, the respondent No. 3 has observed that he has a dissenting opinion in respect of Article-II has been proved, even though no such observation is available. It has been observed that ’there is some merit in this also. Without any notice to the petitioner, the respondent No. 3 has observed that he has a dissenting opinion in respect of Article-II has been proved, even though no such observation is available. It has been observed that ’there is some merit in this also. In absence of any specific proof given by the A.O. that he has giving tuition fee of cost and it was also made known to the students and guardians it is difficult to hold that the private tuition was free.’ Nobody has alleged or stated in the inquiry that the petitioner was charging fee for giving tuitions. As such, the petitioner was under no obligation to prove contrariwise. That apart, without giving the petitioner any opportunity to represent, the said observation has been made and therefore, we are of the considered opinion that the Article-II cannot be held to have been proved. We uphold the finding of the inquiring authority in this regard. 26. The order of the appellate authority dated 04.11.2003, Annexure-13 to the writ petition is absolutely unsustainable inasmuch as even though the appellate authority has the authority to enhance the punishment but in the case in hand the appellate authority without giving any notice to the petitioner has enhanced the punishment of the petitioner from withholding of the annual increments for three consecutive years without cumulative effect to that of removal from service from the date of the said impugned order dated 04.11.2003. 27. When the petitioner challenged that order dated 04.11.2003 by filing this writ petition, the appellant authority had passed the order dated 19.04.2004, Annexure-15 to the writ petition by cancelling the order dated 04.11.2003 removing the petitioner from the service, without prejudice to taking further action as may be considered in the circumstances of the case for consideration of the appeal filed on 19.06.2003 by the petitioner. Thereafter, by the Memorandum dated 21.05.2005, Annexure-16 to the writ petition who asked why the quantum of the penalty as imposed by the disciplinary authority shall not be increased for his ’sexual misbehaviour’ as proved and he shall not be removed from the service. The petitioner made the representation as asked for on 11.06.2005 questioning the said action of the appellate authority. The petitioner made the representation as asked for on 11.06.2005 questioning the said action of the appellate authority. By the order dated 28.06.2005, Annexure-18 to the writ petition, the appellate authority has enhanced the punishment from withholding of the annual increment for consecutive three years without cumulative effect to that of the removal from service without any effect of disqualification. The petitioner by amendment of the writ petition has challenged the order dated 19.04.2004, Annexure-15 to the writ petition and the order dated 28.06.2005, Annexure-18 to the writ petition fundamentally on the ground of jurisdiction. The appellate authority has ex facie exercised the power of review while passing the order dated 19.04.2004 and 28.06.2005. Mr. Deb, learned senior counsel has correctly contended that the power of review is not the inherent power but it is the creation of the statute. Unless the statute provides such power to an authority that authority cannot exercise the power of review. Rule 29, under Part-VIII of CCS (CCA) Rules, 1965 provides revision and review in a well delineated manner. The power of review has been created by the said Rule for the singular purpose where no appeal has been preferred or for which no appeal is allowed, the superior authority as designated either on his own motion or otherwise call for the records of inquiry and revise any order under those Rules and may; (a) confirm, modify or set aside the order; or (b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or (c) remit the case to the authority which made the order to or any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or (d) pass such other orders as it may deem fit. No other provisions have been provided in the said Rules. The appellate authority obviously had no power after passing the final order as the appellate authority, to cancel its own order and thereafter to launch de novo proceeding for purpose of determining the appeal afresh. Thus, the subsequent appellate proceeding is vitiated in law and in consequence thereof, the order dated 19.04.2004 and the order dated 28.06.2005, Annexure-15 & 18 to the writ petition respectively are set aside. Thus, the subsequent appellate proceeding is vitiated in law and in consequence thereof, the order dated 19.04.2004 and the order dated 28.06.2005, Annexure-15 & 18 to the writ petition respectively are set aside. We have already observed the order of the appellate authority dated 04.11.2003, Annexure-13 to the writ petition is unsustainable inasmuch as without notice to the petitioner, the punishment was enhanced. Accordingly, we also set aside the said order dated 04.11.2003. However, we affirm the order of the disciplinary authority dated 15.05.2003, Annexure-10 to the writ petition subject to modification of the finding in respect of the Article of Charge-II for the reason as stated. The said finding in respect of the Article of Charge-II stands expunged. However, we do not find any necessity to interfere with the punishment as imposed by the said order dated 15.05.2003 even after considering the punishment in the touchstone of the proportionality as we are of the considered opinion that the circumstances as proved by the witnesses couched with the statement of the complaining student has generated required assurance that the Article-I has been adequately proved that the petitioner’s behaviour was unwelcomed attempt to physical contact and verbal conduct of sexual nature which constitute misconduct within the meaning of Rule 3 of the TCS (Conduct) Rules, 1988 and as such conduct is absolutely unbecoming of a teacher keeping in mind what the apex court has observed in N.I. Khan (supra). 28. In view of what has been held, we are of the further opinion that the petitioner will not be entitled to the full back wages. The back wages will be restricted to 50% of the pay and allowances that the petitioner would have been entitled if he was not removed from the service by the order dated 28.06.2005, Annexure-18 to the writ petition. So far the period of suspension is concerned, the entitlement of the petitioner shall be restricted to what has been paid as the subsistence allowance. But the petitioner shall be entitled to the full pay and allowances from the day of revocation of the order of suspension till the previous day of the order dated 28.06.2003, Annexure-18 to the writ petition. With these observations and direction, this writ petition stands allowed to the extent as indicated above. There shall be no order as to costs. The proceedings records be returned to Ms. A.S. Lodh, learned Addl. With these observations and direction, this writ petition stands allowed to the extent as indicated above. There shall be no order as to costs. The proceedings records be returned to Ms. A.S. Lodh, learned Addl. G.A. under a sealed cover.