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2019 DIGILAW 1193 (RAJ)

Zinc Vidyalaya Prabandh Samiti v. Hema Tank

2019-04-23

ASHOK KUMAR GAUR

body2019
JUDGMENT : ASHOK KUMAR GAUR, J. 1. The present writ petition has been filed by the petitioner-Management against the order dated 24.11.2017 passed by the Rajasthan Non-Government Educational Institution Tribunal (hereinafter shall be referred to as "the Tribunal") in Appeal No. 25/2016 by which the Tribunal has allowed the claim of the respondent-employee namely Hema Tank and has held that the order of discharge of service of the respondent-employee dated 02.03.2016 be quashed and she was held entitled to be reinstated back in service with all consequential benefits. 2. The brief facts giving rise to the present writ petition are that the respondent-employee was issued a charge-sheet dated 12.02.2016 wherein it was alleged that on 11.02.2016 when the respondent-employee was on proxy period of Class-VIII, it was observed that she gave corporal punishment to the students by using iron scale. It was alleged that due to the said corporal punishment, around 15-16 students got injured and it resulted into cuts, bruises and painful swellings on their palms. It was alleged that students were given First Aid immediately after the incident in the Zinc Hospital. The petitioner-Management alleged the said act of the respondent - employee to be in breach of the undertaking of 2013 wherein she committed not to give corporal punishment to the students and further alleged her act to be in breach of MoU signed on 27.08.2012. The alleged act was also not said to be in confirmation of circular No. 20/2014/675578 issued by the Central Board of Secondary Education on 06.02.2014. The petitioner-Management further alleged that act of the respondent-employee was not in confirmation of compliance under the Right to Education Act, 2009 (in short "Act of 2009") and the same was in violation of Section 17 of the Act of 2009. 3. The respondent-employee had filed reply to the charge-sheet on 16.02.2016 and she pleaded that exemplary services were rendered by her since 1996 in the Institution and she was awarded several prizes on different occasions for her exemplary services. She also pleaded that she had always taken pains to give best guidance to the students with her positive attitude. 3. The respondent-employee had filed reply to the charge-sheet on 16.02.2016 and she pleaded that exemplary services were rendered by her since 1996 in the Institution and she was awarded several prizes on different occasions for her exemplary services. She also pleaded that she had always taken pains to give best guidance to the students with her positive attitude. The respondent-employee also did not specifically admit the charge but she only explained by writing that if her attitude was little strict, the same was adopted like a mother and she adopted tough attitude sometimes against the children, with no intention to cause any harm to them. 4. The petitioner-Management after receipt of her reply found it unsatisfactory and as such it was decided to conduct enquiry on 20.02.2016 and communication was sent to the respondent-employee that she was to remain present at the venue of enquiry along with co-worker and witness/document to defend her case. The Enquiry Officer conducted the enquiry on 20.02.2016, 22.02.2016 & 23.02.2016 and finally he submitted the enquiry report on 23.02.2016. The respondent-employee was given show cause notice dated 24.02.2016 wherein it was informed that the charge of misconduct alleged in the charge-sheet was proved against her and the Management had decided to impose punishment on her and as such she was given show cause notice as why the punishment may not be imposed upon her. 5. The respondent-employee submitted her reply to the show cause notice dated 29.02.2016. She pleaded that she was not given due opportunity, during the enquiry proceedings and she was not satisfied with the recommendation of the Enquiry Officer as neither sufficient time nor opportunity was given to her to defend herself and the same was in violation of the principles of natural justice. The respondent-employee also pleaded that she had letters of 17 students and their guardians of Classes-VII & VIII wherein all such persons denied of giving beating to the students by the respondent-employee and such documents were required to be considered in the enquiry proceeding. The respondent-employee referred to the report of Dr. Deepak dated 15.02.2016 wherein it was clearly written that students did not had any swelling or injury on the part of their body and as such the respondent-employee pleaded that her 20 years of service could not be terminated in such unceremonious way. 6. The respondent-employee referred to the report of Dr. Deepak dated 15.02.2016 wherein it was clearly written that students did not had any swelling or injury on the part of their body and as such the respondent-employee pleaded that her 20 years of service could not be terminated in such unceremonious way. 6. The petitioner-Management did not find the reply of the respondent-employee to be satisfactory and accordingly decided to impose punishment of simple discharge of service by order dated 02.03.2016. 7. The respondent-employee feeling aggrieved against the order dated 02.03.2016 approached the higher authority by filing appeal and requested that order of discharge of service was required to be recalled. The appellate authority vide order dated 09.04.2016 dismissed the appeal filed by the respondent-employee and maintained the punishment order dated 02.03.2016. 8. The respondent-employee feeling aggrieved against the order of punishment of discharge of service dated 02.03.2016 and order of dismissal of appeal passed by the appellate authority dated 09.04.2016, approached the Tribunal by filing appeal, praying for setting aside these orders and to further reinstate her on the post and give her all the back wages with interest. 9. The petitioner-Management filed reply to the appeal before the Tribunal and contested the case and justified the order passed by the authorities. 10. The Tribunal by order dated 24.11.2017 has come to the conclusion that the appeal of the respondent-employee was required to be allowed. The Tribunal has broadly given following six reasons for allowing the appeal of the respondent-employee:- (a) The enquiry report submitted by the Enquiry Officer was against the principle of natural justice as adequate opportunity was not given to the respondent-employee to defend herself. (b) The charge against the respondent-employee of giving corporal punishment resulting into cuts, bruises and painful swelling, was not proved even as per the medical report prepared on 15.02.2016. (c) The Disciplinary Authority was having ill-will towards the respondent-employee and the evidence which was collected during enquiry, before the Enquiry Officer, no opportunity to defend to the respondent-employee and further no right of cross-examination was afforded to her. (d) The alleged incident of 11.02.2016 was found to be false on account of not taking any action of registering FIR or informing the Police for taking action against the respondent-employee. (d) The alleged incident of 11.02.2016 was found to be false on account of not taking any action of registering FIR or informing the Police for taking action against the respondent-employee. (e) The order of discharge from service dated 02.03.2016 was passed by the Principal and such person was not competent as the appointing authority of the respondent-employee was the Managing Committee and if termination order was passed by the authority subordinate to the appointing authority, the same was not a valid order. (f) The independent enquiry conducted by the District Education Officer (Secondary), District Bhilwara also found that the respondent-employee was not afforded right to defend herself during enquiry and such enquiry also proved the fact of non-compliance of principle of natural justice. 11. The petitioner-Management has challenged the findings of the Tribunal on following grounds:- (i) Controverting the findings with regard to not following due procedure in the departmental enquiry or alleged violation of principle of natural justice, the respondent-employee herself has admitted the charge of giving corporal punishment and as such it cannot be said that she was deprived of defending herself during enquiry proceedings. (ii) The enquiry proceedings were conducted in a proper manner and the respondent-employee denied cross-examination of the witnesses produced on behalf of the Management. She also did not produce witness in her favour in spite of opportunity being granted to her. She refused to sign the order sheets before the Enquiry Officer. (iii) The order of punishment of discharge from service was passed by the competent authority, as the Managing Committee itself had taken the decision and it had only authorized the Principal to issue the order and as such the order was passed by the competent authority. (iv) The allegation of mala fide levelled by the respondent-employee was an after-thought, as for the first time in the appeal before the Tribunal, the plea of mala fide of the Principal against her, was raised. (v) Section 17 of the Act of 2009 provided for initiating disciplinary action under the service Rules in case of physical punishment and mental harassment given to a child, breach of undertaking given by the respondent-employee in the year 2013, breach of MoU signed by her and further non-confirmation of circular dated 06.02.2014, all these violations being proved, the punishment order was the proper measure to deal with the proved misconduct of the respondent-employee. 12. Mr. 12. Mr. Punit Singhvi, counsel appearing for the petitioner-Management has reiterated the submissions which have been taken in the writ petition and he has argued that the Tribunal has recorded perverse findings in respect of not following due procedure during enquiry. Counsel submitted that the finding recorded by the Tribunal, of punishment order being passed by an incompetent authority, is also erroneous and contrary to the record, as the resolution of the Managing Committee regarding decision so taken and authorizing and directing the Principal to issue termination order, cannot be faulted. Counsel argued that required number of members of Managing Committee were present during the meeting and the document which was placed before the Tribunal with regard to the decision, was a photocopy, which was verified with the original record and the same could not have been termed as a document manipulated by the Management. 13. Counsel submitted that the impugned order passed by the Tribunal deserves to be quashed. In support of his submission, counsel placed reliance on the judgment dated 03.07.2012 passed by the Delhi High Court in the case of Kishor Guleria Vs. The Director of Education Directorate of Education & Ors. in Writ Petition (Civil) No. 5765/2011 reported in 195 (2012) DLT 189. The relevant paragraphs 15 and 25 of the judgment, relied upon by the counsel are quoted hereunder:- "15. The petitioner admitted in his explanation dated 03.05.2008 that he should have restrained himself and sought to tender the apology for the same and promised that such thing would be repeated again. 16 to 24. XX XX XX 25. The corporal punishment to a school child is barred by law. Any act of awarding corporal punishment to children, not to be taken lightly by the disciplinary authority. The punishment awarded to the petitioner in the present case is hence not disproportionate vis-a-vis charge levelled against him." 14. Mr. R.P. Garg and Mr. R.K. Daga, counsels appearing on behalf of the respondent-employee submitted that the Tribunal has rightly passed the order and this court may not interfere with the order passed by the Tribunal setting aside the discharge order of the respondent-employee. 15. Mr. R.P. Garg has further submitted that the entire enquiry proceedings clearly revealed that in a very short span of time, the entire enquiry proceedings were concluded. 15. Mr. R.P. Garg has further submitted that the entire enquiry proceedings clearly revealed that in a very short span of time, the entire enquiry proceedings were concluded. He submitted that in fact in one day itself, i.e. on 20.02.2016 when the respondent-employee was asked to appear, on the same day, the Enquiry Officer had concluded the enquiry. 16. Mr. R.P. Garg submitted that the basic charge against the respondent-employee was with regard to giving corporal punishment to the students by using iron scale which resulted into injuries to 15-16 students, causing cuts, bruises and painful swellings on their palms. Counsel submitted that the charge itself was found false and not proved, as no medical report was produced before the Enquiry Officer in support of such allegations. Counsel argued that even the report which was prepared in the hospital of the petitioner-Management, itself shows that Staff Nurse reported that on examining 19 students, who had come to the Zinc Hospital, no tenderness, swelling and redness was found and students were only complaining of pain in their palms. The diagnosis was also to the extent of not finding major deformity and some nobel gel was locally applied to all the students' palms. Mr. Garg submitted that the so-called hospital report prepared by the Staff Nurse, even reveals falsity of charge levelled against the respondent-employee. 17. Mr. R.P. Garg argued that the respondent-employee did not admit the charge either initially at the time of filing of reply to the charge-sheet or later before the Enquiry Officer. The respondent-employee has been deprived of right to defend herself and she was not permitted to produce documents or cross-examine the witnesses. 18. Mr. Garg submitted that service of the respondent-employee was discharged by a lower authority than the appointing authority i.e. by the Principal of the College and as such the basic order of discharge from service is vitiated in the eyes of law. 19. Mr. Garg further submitted that affiliation bye-laws of the Central Board of Secondary Education provide a procedure for imposing major penalty and as per the procedure provided under the Byelaw-47, the petitioner-Management neither framed definite charge nor supplied statement of allegations on which charge was based and further enquiry was not conducted in a fair and proper manner. 20. Mr. Mr. Garg further submitted that affiliation bye-laws of the Central Board of Secondary Education provide a procedure for imposing major penalty and as per the procedure provided under the Byelaw-47, the petitioner-Management neither framed definite charge nor supplied statement of allegations on which charge was based and further enquiry was not conducted in a fair and proper manner. 20. Mr. R.P. Garg submitted that guidelines have been issued for eliminating corporal punishment in schools by the National Commission for Protection of Child Rights (NCPCR) and the Guideline 8.8 provides that if Preliminary Enquiry is conducted against corporal punishment and prima facie, case exists then a complaint in writing to the local Police Station at the earliest should be made. Counsel argued that since the alleged incident against the respondent-employee was false, no complaint was lodged and the guidelines for eliminating corporal punishment in schools have been violated and further the Tribunal has taken the said fact into account, while allowing the appeal filed by the respondent-employee. 21. Mr. Garg has also placed reliance on the judgment of the Apex Court in the case of State of UP & Ors. Vs. Ram Naresh Lal reported in 1970 (3) SCC 173 to contend that power of dismissal can be exercised only by the competent authority i.e. the appointing authority and no authority subordinate in rank can issue such order of dismissal. Counsel also places reliance on the judgments of the Apex Court in S.K. Budhiraja Vs. The Commissioner & Secretary, Govt. of Haryana reported in 1997 (4) SLR 270 and Jai Jai Ram Vs. UP State Road Transport Corporation, Lucknow reported in 1996 (4) SCC 727 . 22. I have heard learned counsel for the parties and with their assistance perusal the material on record. 23. The crucial issue in this case is with regard to proving the charge of corporal punishment given by the respondent-employee and injuring the students resulting into cuts, bruises and painful swellings on their palms. This court after going through the enquiry report finds that the said charge against the respondent-employee is not proved. The petitioner-Management had levelled specific allegation that due to the act of corporal punishment, the students suffered cuts, bruises and painful swellings on their palms. The petitioner-Management was not able to prove during enquiry that such injuries were actually suffered by the students. The petitioner-Management had levelled specific allegation that due to the act of corporal punishment, the students suffered cuts, bruises and painful swellings on their palms. The petitioner-Management was not able to prove during enquiry that such injuries were actually suffered by the students. This court also looked into the report prepared by the Staff Nurse dated 15.02.2016 wherein on examination of students who had come to the Hospital, no tenderness, swelling or redness was found and further there was no major deformity. The complaint of pain by the students in palms and treatment of applying nobel gel locally on their palms, cannot prove the charge against the respondent-employee when the petitioner-Management had specifically come out with the allegation that the students had to suffer injuries resulting into cuts, bruises and painful swellings on their palms. This court finds that the petitioner-Management failed to prove such charge and reference of breach of undertaking, MoU, circular of CBSE and violation of Section 17 of the Act of 2009, cannot result into commission of misconduct, if the basic allegation of causing injury is not proved against the respondent-employee. 24. This court further finds that in the enquiry which was conducted against the respondent-employee, the Enquiry Officer recorded a finding that the respondent-employee had admitted the charge and she did the same by becoming emotional. This court, after careful scrutiny of the enquiry proceedings, which were produced before the Tribunal, finds that the respondent-employee had nowhere admitted that whatever was alleged in charge-sheet was done by her and the same also finds place in the proceedings conducted by the Enquiry Officer on 20.02.2016. This court finds that the Enquiry Officer had put a direct question to the respondent-employee as why she had used the iron scale while giving corporal punishment to the students but she denied the same during enquiry proceedings. The relevant portion recorded by the Enquiry Officer is reproduced hereunder:- ^^tc muls iwNk x;k fd D;k vkius cPPkkaas dh Ldsy ls fiVkbZ yxkbZ Fkh rks mUgksaus bUdkj dj fn;kA** 25. This court further finds that reply given to the charge-sheet by the respondent-employee was not satisfactory and she submitted that the Principal was not satisfied with the reply and then she admitted, swayed by emotions, that she committed wrong. This court further finds that reply given to the charge-sheet by the respondent-employee was not satisfactory and she submitted that the Principal was not satisfied with the reply and then she admitted, swayed by emotions, that she committed wrong. This court finds that when the alleged opportunity of producing any evidence during enquiry was afforded to the respondent-employee, she had only replied that she did not want to involve students and teachers as the examination was scheduled in coming ten days. The relevant portion of the statement made by the respondent-employee is reproduced hereunder:- ^^tc Jherh gsek VkWd ls iwNk x;k fd oks viuk i{k j[kus ds fy, dksbZ lk{; j[kuk pkgrh gSa rks Jherh gsek us dgk fd eSa viuh rjQ ls fdlh Nk=&Nk=k o f’k{kdksa dks bl izdj.k esa bUokYo ugha djuk pkgrh gS D;ksafd vxys nl fnuksa ckn ijh{kk,¡ izkjEHk gksus okyh gSA izcU/ku izfrfuf/k us viuk i{k j[kus ds fy, fnukad 22-02-2016 lkseokj rd dk le; ek¡xk ijUrq Jherh gsek VkWd us ;g dgrs gq, euk dj fn;k fd mUgsa dksbZ lk{; ugha ns[kus o xokgh ugha lquuh izcU/ku bl izdj.k esa tks Hkh fu.kZ; ysxk oks mUgsa ekU; gksxkA** 26. This court finds that the Enquiry Officer, after conducting the enquiry proceedings on 20.02.2016, had fixed the next date on 22.02.2016 and he started with the proceedings by forming the opinion that the respondent-employee had admitted on 20.02.2016 that beating was given by her on palms of the students, as she was swayed by emotions. The Enquiry Officer afforded opportunity to the representative of the Managing Committee again and certain questions were put to the respondent-employee. The descending note of not being satisfied with the enquiry proceedings was also recorded by the Enquiry Officer on 22.02.2016 and the same is quoted hereunder:- ^^izcU/ku izfrfuf/k }kjk mDr iz’u iwNus ij Jherh gsek VkWd us bUDok;jh dks continue djus ds fy, euk dj fn;k vkSj gLrk{kj djus ds fy, Hkh euk dj fn;kA vkSj dgk fd oks bl bUDok;kjh ls larq"V ugha gSA vxyh fnukad 23-02-16 le; 10-30 ij blh LFkku ij j[kh xbZ gSA** 27. The Enquiry Officer on 23.02.2016 concluded the proceedings observing that the employee was not prepared to give further answer to the questions put by the Managing Committee and the petitioner-Management was given opportunity for just and fair justice and as such the Enquiry Officer concluded that since the respondent-employee did not want to cross examine the witnesses and he accordingly submitted the Enquiry Report dated 23.02.2016, this court finds that the submission of learned counsel for the petitioner-Management that there was admission of charge of giving corporal punishment, is not proved from the facts of the case and right from the first stage of filing reply to the charge-sheet, the respondent-employee has disputed the fact of committing misconduct of causing injuries on the palms of the students by use of any force. 28. This court finds little substance in the submission of the learned counsel for the petitioner that since the respondent-employee did not produce any witness and she declined the opportunity of cross examination, no violation of fair procedure or any principle of natural justice has taken place. 29. The submission of learned counsel for the petitioner that the punishment of dismissal from service was warranted in the present facts of the case as the instance was admitted by the respondent-employee and even if the actual physical injury might not have been caused to that extent and yet the employee was responsible, this court finds that there was no charge of mental harassment, as per the Section 17 of the Act of 2009, the petitioner-Management was required to prove the charge which was levelled in the charge-sheet of causing injury and they nowhere made out a case of mental harassment to the students. 30. The submission of learned counsel for the petitioner that competent authority had passed the punishment order and the Managing Committee had already authorized the Principal to issue the order, this court finds that the Tribunal while considering the appeal has recorded that several violations were made by the petitioner-Manager including not following the due procedure of enquiry, denial of right to defend to the respondent-employee in proper manner and the hot haste manner in which the enquiry was conducted. This court finds that the charge itself against the respondent-employee has not been proved and as such the punishment order becomes vulnerable in the eye of law. 31. This court finds that the charge itself against the respondent-employee has not been proved and as such the punishment order becomes vulnerable in the eye of law. 31. This court finds that in the facts of the present case, the charge of corporal punishment is not proved against the respondent-employee and as such the analogy drawn by the learned counsel for the petitioner, from the judgment of Delhi High Court, is not attracted in the present case. There was admission on the part of delinquent and punishment was not found disproportionate by the Delhi High Court. In the present case, neither charge has been proved nor there is admission of the respondent-employee to cause injuries on the students. 32. This court finds that there is no perversity in the findings recorded by the Tribunal in the impugned order and the Tribunal has not committed any illegality and as such the impugned order passed by the Tribunal, does not require any interference. 33. Consequently, the present writ petition is dismissed. No costs.