JUDGMENT
B.S. Chauhan and Arun Tandon, JJ.
1. Heard Sri Ashok Khare, learned Senior Advocate, assisted by Sri Diwakar Raj Sharma, Advocate on behalf of the petitioner, Sri Sashi Nandan, learned Senior Advocate, assisted by Smt. Sunita Agarwal, Advocate on behalf of Aligarh Muslim University, Aligarh and Sri K.C. Sinha, learned Assistant Solicitor General of India, “on behalf of Union of India.
2. The petitioner, Dr. Bhishambhar Dayal Gupta, was employed as Reader, Department of Psychology in the Aligarh Muslim University, Aligarh. The petitioner was placed under suspension under order of the Vice-Chancellor of the University in exercise of powers under Statute 40 (3) .(C) of the first Statutes of the University pending enquiry. He was served with a charge-sheet dated 17/18th September, 1986 and was required to submit his reply thereto, within ten days from the date of receipt of charges as levelled against him, which were ten in number. Sri Vashudevan, retired Commissioner, Department of Inquiries, Central Vigilance Commission was appointed as the Enquiry Officer by the University. The enquiry officer after conducting departmental proceedings submitted his enquiry report dated 11th March, 1989 running into as many as 87 pages along with the relevant record of the enquiry. The charges as leveled against the petitioner were found to be proved. The report submitted by the enquiry officer was considered by the Executive Council of the University in its meeting held on 28/29th March, 1989 under item No. 48, The executive council accepted the findings recorded by the enquiry officer in his report and resolved to issue a notice to the petitioner to show cause as to why appropriate order of punishment be not passed. The aforesaid decision of the executive council was communicated to the petitioner by office memo dated 5th April, 1989 and the petitioner was afforded opportunity to have his say in the matter in respect of punishment proposed to be imposed upon him. The petitioner submitted his reply to the said show-cause notice vide letter dated 12th May, 1989 and questioned the findings recorded by the enquiry officer. The reply submitted by the petitioner was considered by the Executive Council in its meeting held on 16/17th May, 1989 and it was resolved that the explanation furnished by the petitioner was not satisfactory and therefore, he be dismissed from service on the charges of gross misconduct including moral turpitude, as stood established against him after due enquiry. In compliance thereof, the formal order of punishment was issued by the University on 28th May, 1989.
3. Feeling aggrieved by the decision of the Executive Council referred to above, the petitioner made a detailed representation before the Visitor of the University under Section 36 of the Aligarh Muslim University Act read with Statutes 36-A & B of the Statutes of the Aligarh Muslim University Act. The Visitor, His Excellency the President of India, vide order dated 24th April, 1996 rejected the representation of the petitioner.
4. The decision of the Executive Council resulting in the order of punishment dated 16/17th May, 1989 as well as the decision of the Visitor dated 24th April, 1996 have been challenged by means of the present writ petition.
5. On behalf of the petitioner it is contended that the decision of the Executive Council dated 16/17th May, 1989 as well as the decision of the Visitor dated 24th April, 2005 are not supported by sufficient reasons and as such, are unsustainable in the eyes of law. In that regard, the petitioner has placed reliance upon the judgment of Hon’ble Supreme Court in the case of S.N. Mukherjee v. Union of India (1990) 4 SCC 594. It is further submitted that Executive Council in its resolution dated 16/17th May, 1989 had not recorded any finding of guilt on the charges levelled against the petitioner after considering the explanation furnished by the petitioner to the show-cause notice dated 28/29th March, 1989. Therefore, there has been an manifest infirmity in law. In that regard, the petitioner has placed reliance upon the judgment of Hon’ble Supreme Court in the Case of Institute of Chartered Accountants of India v. L.K. Ratna and Ors. AIR 1987 SC 71. On the strength of the said judgment, it is submitted, that the enquiry report is not determinative decision, and it was necessary for the Executive Council to have recorded a finding of guilt against the petitioner and only thereafter an order of punishment could have been passed. The conclusion of the Enquiry Officer was only a material which fell within the domain of consideration by the Executive Council, The Executive Council is alone empowered to record as to whether the petitioner was guilty of the misconduct and penalty to be followed.
6. The petitioner contends that the disciplinary proceedings were initiated on the basis of complaints made by two girl students. against the petitioner, these students were not permitted to be cross-examined by the petitioner and therefore, the entire findings recorded by the Enquiry Officer stood vitiated being in violation of principles of natural justice as well as contrary to statute-40 of the statutes applicable. It is lastly pointed out that the petitioner has already attained the age of superannuation, and there being no provision in the statutes permitting the disciplinary proceedings to continue, even after attaining the age of superannuation, there cannot be an order of initiation of the disciplinary proceedings against the petitioner afresh in the facts of the present case by this Court. In that regard, reliance has been placed by the petitioner upon the judgment of the Division Bench of this Court in the case of Dr. R.B. Agnihotri v. State of U.P. and Ors. Civil Misc. Writ Petition No. 6829 of 1996 decided on 2nd February, 2000 as also upon the judgment of Hon’ble Supreme Court in that case of Bhagirathi Jena v. Board of Directors, O.S.F.C. and Ors., 1999(82) FLR 143.
7. On behalf of the University, it is submitted that where a decision is taken in a meeting of a body comprising of various persons like the Executive Committee of the University recording of reasons cannot be insisted upon. The decision of a body comprising of various persons can be normally challenged on the grounds, namely, (a) there was no agenda for consideration in respect of the subject matter on the date of the meeting, (b) the corum of the meeting was not complete, (c) there had been no deliberations in the meeting in respect of the decision and lastly (d) there had been participation of unauthorized persons in the meeting. It is further submitted that the decision of the Executive Committee in the facts of the case had not been challenged on any of the said grounds. The learned counsel for the University further contends that the Executive Committee in its meeting held on 28/29th March, 1989 deliberated upon the enquiry report and recorded its full agreement with the findings recorded therein, including the finding of guilt recorded by the Enquiry Officer as is clear from the resolution of the Executive Council. Therefore after obtaining the explanation of the petitioner to the show-cause notice, it was not necessary to again record a finding of guilt against the petitioner in the resolution dated 16/17th May, 1989.
8. So far as the order of Visitor is concerned, it is pointed out that in view of Section 13(6) of the Aligarh Muslim University Act, 1920, the Visitor has been conferred a discretion to interfere with the decision of the Executive Council. This power is not akin to a right of appeal. If the Visitor, after due consideration of the petition filed by the petitioner, rejected the same, no error can be attributed to the order passed by the Visitor, if separate reason for rejecting the contention raised in the petition are not recorded as the order is an order of affirmence.
9. It is further submitted that the judgment relied upon by the learned counsel for the petitioner in the case of Institute of Chartered Accountants of India (Supra) is clearly distinguishable having regard to the provisions applicable in the facts of the said case. Such statutory provisions are not provided for in respect of disciplinary proceedings under the Aligarh Muslim Act. Lastly it is contended that there being serious allegations involving moral turpitude, by the girl students of the University against the petitioner, who was working as Reader in the University, petitioner is not entitled to any equitable relief under Article 226 of the Constitutions of India.
10. We have heard learned counsel for the parties and have gone through the records of the present writ petition.
11. The facts as have been recorded herein above, are not in dispute between the parties and therefore, the legal contentions, which arise for consideration by this Court, are as follows:
(a) Whether the orders passed by the Executive Council and the Visitor are unsustainable in the eyes of law as they do not record separate reasons.
(b) Whether it was necessary for the Executive Council to have recorded a finding of guilt in respect of the charges found proved by the Enquiry Officer in its resolution dated 16/17th May, 1989 by imposing punishment, even after the enquiry report was accepted earlier under the resolution of the Executive Council dated 28/29th March, 1989, where under the Executive Council had specifically held that the charges against the petitioner were proved and the enquiry report was accepted.
(c) Whether disciplinary proceedings were vitiated because of the complainants (two girls students), having not been permitted to be cross-examined by the petitioner during the disciplinary proceedings,
(d) Whether in the facts of the present case, this Court would exercise its jurisdiction under Article 226 of the Constitution of India in favour of the petitioner.
12. This Court is conscious of the fact that the intercrition of service jurisprudence applicable in respect of disciplinary proceedings, in normal, master and servant disputes, should not be the guiding factors for regulating the disciplinary proceedings which are taken against a teacher of a University on the basis of allegations made by female students, qua misconducts involving moral turpitude. The tradition of Guru and Shishya are the baste foundation of the Indian Society and there are rare cases where the girl students are forced to make complaint against the Guru of having indulged in a conduct involving moral turpitude.
13. In the opinion of the Court, the proceedings initiated against the Guru (Reader in the present case) on a complaint made by the girl Shishya (student) must necessarily be decided on the principles of natural justice and fair-play without adding much weightage to technicalities of procedure. The Court has to be satisfied that the teacher has been afforded an opportunity to controvert the allegations, and his explanation along with evidence has been considered and that there has been application of mind by the disciplinary authority, before taking the final decision.
14. The requirement of education for girls and the functions of a teacher have been dealt with and explained at some length by the Hon’ble Supreme Court of India in the case of Avinash Nagra v. Navodaya Vidyalaya Samiti and Ors., , which read as follows:
“11. It is in this backdrop, therefore, that the Indian society has elevated the teacher as “Guru Brahma, Guru Vishnu, Guru Devo Maheswaraha”. As Brahma, the teacher creates knowledge, learning, wisdom and also creates out of his students, men and women, equipped with ability and knowledge discipline and intellectualism to enable them to face the challenges of their lives. As Vishnu, the teacher is preserver of learning. As Maheswara, he destroys ignorance. Obviously, therefore, the teacher was placed on the pedestal below the parents. The State has taken care of service conditions of the teacher and he owes dual fundamental duties to himself and to the society. As a member of the noble teaching profession and a citizen of India he should always be willing, self-disciplined, dedicated with integrity to remain ever a learner of knowledge, intelligently to articulate and communicate and imbibe in his students, as society duty, to impart education, to bring them up with discipline, inculcate to abjure violence and to develop scientific temper with a spirit of enquiry and reform constantly to rise to higher levels in any walk of life nurturing constitutional ideals enshrined in Article 51A so as to make the students responsible citizens of the country. Thus the teacher either individually or collectively as a community of teachers, should regenerate this dedication with a bent of spiritualism in broader perspective of the constitutionalism with secular ideologies enshrined in the Constitution as an arm of the State to establish egalitarian social order under the rule of law. Therefore, when the society has given such a pedestal, the conduct, character, ability and disposition of a teacher should be to transform the student into a disciplined citizen, inquisitive to learn, intellectual to pursue in any walk of life with dedication, discipline and devotion with an enquiring mind but not with blind customary beliefs. The education that is imparted by the teacher determines the level of the student for the development, prosperity and welfare of the society. The quality, competence and character of the teacher are, therefore, most significant to mould the calibre, character and capacity of the student for successful working of democratic institutions and to sustain them in their later years of life as a responsible citizen in different responsibilities. Without a dedicated and disciplined teacher, even the best education system is bound to fail It is, therefore, the duty of the teacher to take such care of the pupils as a careful parent would take of its children and the ordinary principle of vicarious liability would apply where, negligence is that of a teacher , The age of the pupil and the nature of the activity in which he takes part are material factors determining the degree and supervision demanded by a teacher.
12. It is axiomatic that percentage of education among girls, even after independence, is fathom deep due to independence, is fathom deep due to indifference on the part of all in rural India except some educated people, Education to the girl children is nations asset and foundation for fertile human resources and disciplined family management, apart from their equal participation in socio-economic and political democracy. Only of late, some middle-class people are sending the girl children to co-educational institutions under the care of proper management and to look after the welfare and safety of the girl. Therefore, greater responsibility is thrust on the management of the schools and colleges to protect the young children, in particular, the growing up girls, to bring them up inn disciplined and dedicated pursuit of excellence. The teacher, who has been kept in charge, bears more added higher responsibility and should be more exemplary. His/her character and conduct should be more like Rishi and as loco parentis and such is the duty, responsibility and charge expected of a teacher. The question arises whether the conduct of the appellant is befitting with such higher responsibilities and as he by his conduct betrayed the trust and forfeited the faith whether he would be entitled to the full-fledged enquiry as demanded by him? The fallen standard of the appellant is the tip of the iceberg in the discipline of teaching, a noble and learned profession; it is for each teacher and collectively their body to stem the rot to sustain the faith of the society reposed in them. Enquiry is not a panacea but a nail in the coffin. It is self–‘…..inspection and correction that is supreme. Under those circumstances, the question arises whether the girl and her roommates should be exposed to the cross-examination and harassment and further publicity? In our considered view, the Director has correctly taken the decision not to conduct any enquiry exposing the students and modesty of the girl and to terminate the services of the appellant by giving one month’s salary and allowances in lieu of notice as he is a temporary employee under probation, In the circumstances, it is very hazardous to expose the young girls to traddy process of cross-examination. Their statements where supplied to the appellant and he was given and opportunity to controvert the correctness thereof. In view of his admission that he went the room in the night, though he shifted the timings from 10:00 P.M. To 8:00 P.M. Which was not found acceptable to the respondents and that he took the torch from the room, do indicate that he went tot he room. The misguiding statements sent through Bharat Singh, the hostel peon, was corroborated by the statements of the students; but for the misstatement, obviously the girl would not have done out from the room. Under those circumstances, the conduct of the appellant is unbecoming of a teacher much less a loco parentis and, therefore, dispensing with regular enquiry under the rules and denial of cross-examination are legal and not vitiated by violation of principles of natural justice.
15. The Hon’ble Supreme Court of India in the case of Hira Nath Mishra and Ors. v. The Principle, Rajendra Medical College, Ranchi and Anr. , has specifically held that the rules of principles of natural justice are not inflexible and may differ in different circumstances, where proper enquiry is held by an enquiry committee comprising of independent persons in respect of allegations of indecent behaviour by male students against their mates of a girls’ hostel, the rules of principles of natural justice did not require that the statements of girl students should be recorded in the presence of male students concerned.
16. The Hon’ble Supreme Court of India in the case of State Bank of Patiala and Ors. v. S.K. Sharma; , examined the principles of natural justice in the context of disciplinary proceedings and held as follows:
“We may summarize the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in mind in ‘view of the context of disciplinary enquiries and others of punishment imposed by an employer upon the employee):
(1) An order passed imposing a punishment on an employee Consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character
(2) A substantive provision has normally to be complied with was explained herein before and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under ‘no notice’, ‘no opportunity , and ‘no hearing’ categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character , whose violation is by itself proof of prejudice . The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/ government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/ employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is on of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) herein below is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4) (a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not it or that the provision could not be waived by him, then the Court or the Tribunal should made appropriate directions (include the setting aside of the order of punishment), keeping In mind the approach adopted by the Constitution Bench in B. Karunakar. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.
(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice- or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action- the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram pattern) and violation of facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between “no opportunity” and no adequate opportunity, i.e., between “no notice”/ “no hearing” and “no fair hearing” (a) in the case of former, the order passed would undoubtedly be invalid (one may call it “void” or a nullity if one chooses ‘to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partern), (b) But in the latter case, the effect of violation (of a facet of the rule of audi ateram partem) has to, be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query, (it is made clear that this principle (No. 5) does not apply in the case of rule ‘. against bias, the test in which, behalf are laid down elsewhere.)
(6) While applying the rule of audi alteram partem (the primary principles of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and over-riding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule of varying situations that arise before them.
(7) There may be situations where the interests of state or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.”
17. In the aforesaid judgment the Hon’ble Supreme Court has clarified that object of rules of principles of natural justice is to ensure that there would not have been failure of justice. The Hon’ble Supreme Court has reiterated that the rules of principles of natural justice are not inflexible rules and mere technical violation of some of the rules of procedure prescribe d will not amount to negation of justice. The Court is to keep in mind that the object of the rules is to ensure that there should not be failure of justice, but every violation of the rules of the procedure cannot vitiate the action taken, if in interest of State or public interest rules of procedure are required to be curtailed. The Court must balance public/state interest with the requirement of principles of natural justice. It has been held that several procedural provisions governing disciplinary enquiry under the statutory provisions “are nothing but elaborations of the principles of natural justice and their several process”. The ultimate test is “all proceedings taken together, whether the delinquent officer/employee did or did not have a fair hearing. The complaint of violations of principles of natural justice has to be examined from view point of substantial compliance, as the overriding objective underlying the rules is to ensure a fair hearing and to ensure that there is no failure of justice.
18. Therefore, in the cases of complaints of a girls students against a teacher it is to be considered as to whether the girls students should be exposed to further harassment and further publicity by tardy process of cross-examination.
19. The Hon’ble Supreme Court in the case of Apparel Export Promotion Council v. A.K. Chopra; has held that cases of sexual harassment are to be examined on the broader probabilities of case and not be swayed by insignificant discrepancies or narrow technicalities. Such cases are to be dealt with great sensitivity and sympathy or mercy towards the offender would be misplaced.
20. A Division Bench of this Court while dealing with the disciplinary proceedings of misconduct against a teacher of Aligarh Muslim University, covered by same statutory provisions as are attracted in the facts of the present case has held that non production of the female girl complainants in the facts of the case could not be said to be in violation of principles of natural justice.
21. In this back ground, it would be worthwhile to reproduce the Statute 40 Sub-clause 3(a), (b) (c) and (d) of the Aligarh Muslim Act, which are relevant for all purposes as also the provisions of Section 13(6) of the Aligarh Muslim Act, which provides powers to the Vistor to interfere. Statute 40 Sub-clause 3 (a), (b), (c) and (d) and Section 13(6):
“Statute 40:
(3) (a) Notwithstanding anything contained in the terms of the contract of service of a teacher, the Executive Council shall be entitled to dismiss a teacher on grounds of misconduct after following the procedure specified in clause (c), but save as aforesaid, the Executive Council shall not be entitled to determine the employment of a teacher save for good cause and after giving three months, notice in writing or payment of three months’ salary in lieu of such notice.
(b) The determination of a teacher’s employment shall require a two-thirds majority of the members of the Executive Council present and voting.
(c) The Vice-Chancellor may suspend a teacher against whom any misconduct is alleged and shall report the case to the next meeting of the Executive Council, but before any orders for dismissal are passed, the teacher shall be informed of the allegations made against him and shall be given a reasonable opportunity to make such representation to the Executive Council or to any committee thereof appointed for the purpose, as he may desire to make; and further, he shall be entitled to claim the benefit of due enquiry, with full opportunity to inspect evidence and cross-examine witnesses, and offer , his own evidence and witnesses, before the Executive Council or before a person or persons appointed by it to conduct the enquiry.
(d) Any dismissal on the ground of misconduct shall take effect on the date on which the teacher was first suspended.
Section 13 :
(6) Without prejudice to the foregoing provisions of this section, the Visitor may, by order in writing annual any proceeding of the University which is not in conformity with this Act, the Statutes or the Ordinances:
Provided that before making any such order, he shall call upon the University to show cause why such an order should not be made, and, if any cause is shown within a reasonable time, shall consider the same.”
22. The case requires to be considered in the light of the aforesaid legal provisions:
Ground (a):
23. From the provisions, which have been quoted herein above, it is apparently clear that the decision to dismiss a teacher of the University from service on the ground of misconduct, is to be taken after following the procedure prescribed under Clause (c) of the said statute by the Executive Council. The said Section does not require recording of reasons for such a decision. Even otherwise, where a collective decision by a body of person is required to be taken (like in the facts of the present case), it is neither practically possible nor legally required that opinion of all the members participating in the deliberations must be recorded, inasmuch as the decision of such bodies are collective in nature, and only the decision as a whole, is required to be recorded in writing and not the deliberation which had to such a decision. The deliberations which took place in the meeting of the Executive Council, are, therefore, not necessarily to be recorded in its decision.
24. So far as the powers of Visitor are concerned, Section 13(6) of the Aligarh Muslim University Act confers a discretionary powers upon the Visitor to interfere with the decision of the Executive Council and specific grounds as have been mentioned in the Section itself. Further the decision of the Visitor being in affirmation of the decision taken by the Executive Council does not require any further reasons to be recorded while rejected the appeal filed by the petitioner.
25. In these circumstances, the first contention that the order of the Executive Council as well as of the Visitor, being not supported by reasons in writing is unsustainable in the eyes of law, and therefore, rejected. Ground (b):
26. So far as the second contention raised by the petitioner is concerned, the plea is based upon the judgment of Hon’ble Supreme Court in the case of Institute of Chartered Accountants of India (Supra), suffice it to reproduce Section 21 of the Chartered Accountants Act, 1949. The Section 21(1)(2)(3)(4) reads as follows:
Section 21. Procedure in inquiries relating to misconduct of members of Institute:
(1) Where on receipt of information by, or of a compliant made to it, the Council is prima facie of opinion that any member of the Institute has been guilty of any professional or other misconduct, the Council shall refer the case to the Disciplinary Committee shall thereupon hold such inquiry and in such manner as may be prescribed, and shall report the result of its inquiry to the Council.
(2) If on receipt of such report the Council finds that the member of the Institute is not guilty of any professional or other misconduct, it shall record its finding accordingly and direct that the proceeding shall be filed or the complaint shall be dismissed, as the case may be.
(3) If on receipt of such report the Council finds that the member of the Institute is guilty of any professional or other misconduct, it shall record a finding accordingly and shall proceed in the manner laid down in the succeeding sub-sections.
(4) Where the finding is that a member of the Institute has been guilty of a professional misconduct specified in the First Schedule, the Council shall afford to the member an opportunity of being heard before orders are passed against him on the case, and may thereafter make any of the following orders, namely ;-
(a) reprimand the member;
(b) remove the name of the member from the Register for such period, not exceeding five years, as the Council thinks fit: Provided that where it appears to the Council that the case is one in which the name, of the member ought to be removed from the Register for a period exceeding five years or permanently, it shall not make any order referred to in Clause (a) or Clause (b) but shall forward the case to the High Court with its recommendations thereon.”
27. The relevant paragraph-11 of the judgment of the Hon’ble Supreme Court in the Case of Institute of Chartered Accountants of India(Supra) read as follows;
“It is apparent that in the scheme incorporated in Section 21 of the Act there are separate functionaries, the Disciplinary Committee, the Council and, in certain cases, the High Court. The controlling authority is the Council, which is only logical for the Council is the governing body of the Institute. When the Council receives information or a compliant alleging that a member of the Institute is guilty of misconduct, and it is prima facie of opinion that there is substance in the allegations it refers the case to the Disciplinary Committee. The Disciplinary Committee plays a subordinate role. It conducts an inquiry into the allegations. Since the inquiry is into allegations of misconduct by the member, it possesses the character of a quasi judicial proceeding. The ” Disciplinary Committee thereafter submits a report of the result of the inquiry to the Council. The Disciplinary Committee is merely a Committee of the Institute, with a function specifically limited by the provisions of the Act. As a subordinate body, it reports to the Council, the governing body. The report will contain a statement of the allegations, the defence entered by the member, a record of the evidence and the conclusions upon ‘ that material. The conclusions are the conclusions of the Committee. They are tentative only. They cannot be regarded as ‘findings. The Disciplinary Committee is not vested by the Act with powers to record any findings. It is the Council which is empowered to find whether the member is guilty of misconduct. Both Section 21(2) and Section 21(3) are clear as to that. If on receipt of the report the Council finds that the member is not guilty of misconduct, Section 21(2) requires it to record its finding accordingly and to direct that the proceedings shall be filed or the complaint shall be dismissed. If, on the other hand, the Council finds that the member is guilty of misconduct, Section 21(3) requires it to record a finding accordingly, and thereafter to proceed in the manner laid down in the succeeding sub-sections. So the finding by the Council is the determinative decision as to the guilty of the member, and because it is determinative the Act requires it to be recorded. A responsibility so grave as the determination that a member is guilty of misconduct, and the recording of that finding, has been specifically assigned by the Act to the governing body, the Council. It is also apparent that it is only upon a finding being recorded by the Council that the Act moves forward to the final stage of penalization. The recording of the finding by the Council is the jurisdictional springboard for the penalty proceeding which follows.”
28. It is thus clear that the principle, declared by the Hon’ble Supreme Court in the case of Institute of Chartered Accountants of India(Supra) are based on the interpretation of the statutory provisions applicable thereto.
29. Thus the judgment relied upon by the petitioner is of no help to him and is clearly distinguishable. Even otherwise, it may be recorded that the Executive Council in its meeting held on 28/29th March, 1989 has specifically recorded its agreement with findings of the enquiry officer, qua the guilt of the petitioner being proved in respect of all the ten charges before imposing the punishment and, therefore, further resolved to issue second show-cause notice. The relevant portion of the decision taken by the Executive Council in the meeting held on 28/29th March, 1989 reads as follows:
2. The resolution under Item No. 48 of the aforesaid meeting of the Executive Council is reproduced below:-
Item No. 48.
The Council considered the report of Mr. M.K. Vashudevan, Retired Commissioner, Departmental Inquiries, Central Vigilance Commission, Government of India, New. India, who was appointed to inquire into the charges framed against Dr. B.D. Gupta, Reader (Under Suspension) Department of Psychology.
The Council accepted the findings of the Inquiry officer to the affect that all the ten articles of charges framed against Dr. B.D. Gupta have been established.
1. The Council resolved that Dr. B.D. Gupta, Reader (Under Suspension) be issued a notice requiring him to show cause as to why should he not be dismissed from the service of the University on the basis of the Inquiry Officer’s report.
The Council further resolved that Dr. B.D. Gupta be supplied a , copy of the Inquiry Officer’s report and he be asked to submit his reply ot the show-cause notice within 15 days from the date of receipt of the noticed.
The Council authorized the Registrar to issue the show cause notice, on behalf of the Council, to Dr. B.D. Gupta.”
30. The guilty of the petitioner has therefore, been recorded under the resolution of the Executive Council and thereafter, the petitioner was issued 2nd show cause notice with regard to the punishment proposed to be imposed upon him, The Executive Council in its subsequent resolution dated 16717th May, 1989 rightly recorded, that it was not satisfied with the reply submitted by the petitioner and was resolved to reject his representation, while deciding to dismiss the petitioner from service of the University on the charges of gross-misconduct including moral turpitude. The resolution passed by the Executive Council in its meeting dated 16/17th May, 1989 reads as follows:
“The Council considered the reply dated 12,5.89 of Dr. B.D. Gupta Reader (Under Suspension), Deptt. of Psychology in response to the notice issued to him vide No. D/De/23 to (I)/ 2861 dated 5.4.1989 in pursuance of Executive Council Resolution No. 48 dated 28/29.5.1989 requiring him to show cause as to why should he not be dismissed from the service of the University. After careful consideration of the reply given by Dr. B.D. Gupta, the Council unanimously resolved as follows:
(a) The reply of Dr. B.D. Gupta dated 12.5.1989 being unsatisfactory be rejected.
(b) Dr. B.D. Gupta, Reader (under suspension), Department of Psychology be dismissed from the service of the University on charges of gross-misconduct, including moral turpitude established against him after due inquiry the dismissal to be effective from the date of which Dr. B.D. Gupta was placed under suspension i.e. 15.7.1986″
In view of the aforesaid it cannot be disputed that there has been application of mind by the Executive Council at such of second show-cause notice at the time of passing of the order of punishment after deliberations with regard to the explanation furnished by the petitioner.”
31. This Court has no hesitation to record that decision taken in the meeting of Executive Council cannot be faulted with and does not call for interference in the writ proceedings. Issue No. (b) is answered accordingly.
Ground- (c):
32. The correctness of the said contention of the petitioner has been seriously disputed by the University. It is stated that one of the complainant, girl student was permitted cross-examination. However, the Court is of the opinion that such a dispute may not require consideration, inasmuch as the technicalities, as have been raised by the. petitioner with regard to denial of opportunity to cross examine the complainants-girls students of the University, would not vitiate the disciplinary proceedings followed by the enquiry officer as well as the decision taken by the Executive Council. The Supreme Court as well as this Court have repeatedly held that cross-examination of girls students (complainants) in cases of mis-conducts in making sexual harassment of female is neither necessary nor warranted under law. The legal position with regard to disciplinary proceedings in such a matter has already been noticed herein above. Thus ground (c) is also answered against the petitioner.
Ground (d):
33. Be that it may from the records of the present writ petition, it is apparently clear that few of charges levelled against the petitioner amongst others reads as follows:
“Charge No. 1:
Dr. B.D. Gupta acted in a highly an objectionable manner unbecoming of a teacher when, instead of properly guiding a research scholar, named Miss Sunita Tandon, in preparing and applying for admission to the research course, he sought to miss-guide her and preached communal bias against fellow students belonging to the other community. Dr. Gupta also threatened Miss Sunita Tandon that she would not get admission in the department if she did not agree to work under him. By doing so Dr. Gupta attempted to black mail Miss Sunita Tandon. Charge No. 2
Dr. B.D. Gupta indulged in harassment of a woman research student and behaved in a highly objectionable and disgraceful manner when he and some other persons visited, on his behest, Mis Sunita Tandon’s House on 17.4.1996 and 19.4.1986 and extended threats to her and to her mother.
Charge No. 3
Dr. B.D. Gupta resorted to intimidation, behaved in improper manner and took to threat of violence when he, along with prof. M.A. Beg and some other persons visited the house of Miss Sunita Tandon on 16.05.1986 and at the point of pistol made certain demands and also threatened her with dire consequences if she is failed to meet their demand. Charge No. 4
Dr. B.D. Gupta deliberately discouraged Miss Sunil Chauhan in getting admission to Ph.D. Course in Psychology and also constantly harassed her and subjected her to mental torture by his disgraceful behavior towards her.
Charge No. 5
Dr. B.D. Gupta committed acts of gross misconduct and moral turpitude by giving a vulgar lecture to Miss Sunil Chauhan on permissiveness and in favour of extramarital relations between men and women and making immoral advances to Miss Sunil Chauhan and trying to force her to coax another girl student in the department to have sexual and illicit relationship with Dr. B.D. Gupta.
34. The Enquiry Officer after detailed enquiry recorded the findings of guilt in respect of all the ten charges. It is worthwhile to reproduce only a part of finding recorded in respect of charge Nos. 4 and 5. The relevant portion whereof reads as follows:
“Miss Rizwana’s complaint at Exh. P-22 is a serious reflection on the defendant’s morals particularly the highly unethical and vulgar advice given/by the defendant namely-
“If you want to get good marks be diplomatic and leave your moral values. Everybody has a deprivation and we should try to remove the deprivation among us. I will also remove your deprivation if you will remove this from me.”
The defendants advice to a girl student, admittedly in the drawing room of the residence of P.W. 5 when the defendant and the girl student were alone by themselves, cannot but be treated as a crude attempt by the defendant to exploit an innocent girl. In this situation, the defendant’s boast of having a sound mind in a sound body is really ludicrous, (viii) The defendant has not contended that he had not visited the house of P. W. 5 along with Miss Rizwana to teacher her in the drawing room and they were left alone and even P. W.5 and , Miss Sunil Chauhan were not present in the drawing room. The replies of P. W. 5 to questions 2,3, and 8 to 12 under cross-examination on page 75 to 77 would fully corroborate Miss Rizwana’s allegations at Exh. P.-22 and also Miss Sunil Chauhan’s allegations that the defendant had asked her to help him to have sexual and illicit relationship with another girl of the Dept. of Psychology. The defendant had pleaded that he had ‘ .met Miss Rizwana only once in the drawing room of the house of P. W.5 not on more than one occasion as stated by P. W.5; but this does not make any material difference at all. The fact is that the defendant has admitted having gone to residence of P. W.5 along with Miss Sunil Chauhan and Miss Rizwana. Although he pretended to check up with P. W.5 before taking Miss Sunil Chauhan under his guidance for Ph.D. Research, his real target was the other girl who according to P. W. 5 was quite good-looking, white in complexion, and slim (reply to question No. 9 on page 77). The defendant had obviously fixed his eyes on the other girl to remove his deprivation, (ix) In so far as Miss Sunil Chauhan’s complaint at Exh.P-7 is concerned, P. W.5 had categorically verified and confirmed it in his deposition-in-chief (page 75). Under cross-examination (reply to question No. 7 on page 76), P. W.5 was quite certain that the defendant paid his last visit to his house prior to Miss Sunil Chauhan’s complaint dt. 19.5.86 (Exh.P-7) and not after that date. This position clearly indicates that the defendant became unnerved by Miss Sunil Chauhan’s complaint with serious repercussions on his own future and, therefore, stopped visiting P. W.5 after 19.5.86. The replies of P. W.5 to questions 14 and 15 on the page 78 combined with his replies to questions No. 21 and 22 on page 79 would establish that P. W.5 had met the Vice-Chancellor along with Miss Sunil Chauhan regarding her complaint against the defendant vide Exh. P-7, and also the circumstances in which he met P.W. 3 at his residence to confirm the complaint of his niece Miss Sunil Chauhan. The reply of P. W.5 to quest/on No. 22 is quite fatal to the general reputation of the defendant in the Aligarh Muslim University.
In view of the analysis of evidence, both oral and documentary discussed in the preceding sub-paragraphs, both the articles of charge 4 and 5 succeed against the. defendant.”
35. The charges found proved against the petitioner leave no room to doubt that the petitioner (teacher) has fallen far below the standards expected of a Guru responsible to take care of pupil as their second parent. The purity and the academic atmosphere of the University, which is a temple of learning, has to be maintained so as to take the country forward and persons like the petitioner deserve no sympathy of the Court. Petitioner cannot seek any equitable relief. Facts of the case do not present special features warranting any interference by the equity Court.
36. Writ petition is accordingly dismissed.