ORDER
Shanker Raju, Member (J)
1. As per our religious and vedantic account place of a guru (teacher) is paramount and a guru has been placed at the pedestal of Guru Brahma, Gurur Vishnu, Guru Devo Maheswaraha. The paramount task of the teacher in nation building is to impart not only learning and wisdom to the students but also make them virtuous, morally strong with a positive frame of mind. A fundamental duty enshrined upon a teacher to prove one’s worth as an ideal teacher like Guru Draunacharya Guru Balmiki and Guru Rabindra Nath Tagore. What is expected from a teacher is idealism. A sin committed by a sinner can be treated but once this sin emanates from guru, it is not only depreciable but also sinnest of the sin. A Teacher with all logic and rationale has to be equated with parents till a student completes his education. The role of a father or mother to impart basic values and virtues to a student is being imparted by a guru. When a creator becomes destructor, the situation would become so complex that the depravity of a teacher has no parallel while defining it in the context of a paap or sin. Right to education is a fundamental right guaranteed within the framework of our Constitution. To propagate and impart education to the children, who are future of our country, has established a sole mechanism to impart education and KVS is one of them. In the democratic setup of our country without any discrimination between the sexes, co-educational institutions have been functioning. Apart from subjects of academic, a stress is also made on health of the children for which our traditional and ancient art of keeping the body fit, i.e. yoga has been introduced as a subject in KVS. A curriculum has been prepared which formally introduces a student not only the practical aspect of the yog-asana but also the theoretical side Teachers with qualification and expertise in yoga have been appointed to impart this stress buster technique to the children to ensure that apart from academics mentally, morally and physically a student grows in the society to be able to discharge his optimum when drifted in the main stream to strengthen by his contribution to the society the national values and development as well.
2. An Ex-Yoga Teacher in Kendriya Vidyalaya Sangathan (KVS) by virtue of this OA has impugned a show cause notice issued vide memorandum dated 29.12.2003 under Article 81 (B) of the KVS Code, whereby a proposal has been extended to dispense with his services. Also assailed is an order passed on 8.3.2004, whereby on confirming the show cause notice applicant has been terminated from service. Order dated 6.1.2006 passed in appeal is also assailed, whereby the punishment has been affirmed.
3. The present is a case of a yoga teacher in KVS, who by his misdeeds has brought shame not only to the word ‘guru’ but also to the society at large. He has shaken the confidence of the parents, students and defamed an educational institution; inter alia, the trust developed therein. On an anonymous complaint against applicant as to his misbehavior with the girls in the guise of teaching yoga led to constitution of a committee, which included officials of the KVS and parents representative in July, 2003. The Education Officer on the request of the Assistant Commissioner conducted a discreet enquiry where number of girl students confessed and confirmed on their statements allegations of immoral misconduct and indecent behaviour of applicant with senior girls. On receipt of the enquiry report a fact finding enquiry was conducted where applicant has been given an opportunity, which when substantiated the charges against him, a memorandum to show cause was issued under Article 81 (B) of the Education Code of KVS, simultaneously furnishing applicant charges, facts in supports of the charges, statements recorded in the preliminary enquiry (PE) and the report of the PE. The aforesaid notice when responded to by applicant was affirmed by the disciplinary authority (DA), imposing upon him a penalty of termination from service.
4. An appeal preferred was turned down on confirmation of the order under Article 81(C) of the KVS Code, gives rise to the present OA.
5. Shri Yogesh Sharma, learned Counsel appearing for applicant stated that to the memorandum of show cause a detailed reply has been filed by applicant, yet in the impugned order not even a whisper has been stated as to the reply and on their ipsi dixit the authorities have terminated applicant from service without application of mind and dealing with his contentions. Accordingly, reliance has been placed on a decision of the Tribunal in Bishwanath Paul v. The Vice Chairman, Kendriya Vidyalaya Sangathan and Ors. 2005 (3) SLJ CAT 191, to substantiate the plea.
6. Shri Sharma contended that during the course of PE representative of parents, who was a witness and complainant, was made a member of the committee, which is not in accordance with law.
7. Shri Sharma has contended that a PE held behind the back of applicant has deprived him a right to reasonably defend, without holding an enquiry and as no reasons have been recorded as to why the enquiry was not reasonably practicable, dicta of the Apex Court in KVS v. S.C. Sharma 2005 (2) SLR SC 261 has been violated.
8. learned Counsel would further contend that in his reply to show cause and appeal statements of about 300 students have been listed who have clearly stated that applicant has not done any deprave act and accordingly it is stated that non-recording of reasons both in the impugned order and in the appellate order speaks volumes about the malafides on the part of the respondents.
9. It is also contended that applicant, who is a permanent employee of KVS having put in 22 years of service has been deprived of a reasonable opportunity to defend in the form of holding a regular enquiry when his past record has not at all been considered and by an ulterior motive as a conspiracy against applicant the authorities have misused the provisions of Article 81(B) of the KVS Code and he prays for the orders to be set aside with re-instatement of applicant with all consequential benefits.
10. On the other hand, Shri S. Rajappa, learned Counsel appearing for respondents vehemently opposed the contentions and stated that the decision of the Apex Court in Director, Navodaya Vidyalaya Samiti and Ors. v. Babban Prasad Yadav and Anr. 2004 (2) SCALE 400, laid down pre-conditions of holding a summary enquiry and satisfaction of the DA to the guilt of the concerned and a recording with reasons as to the expediency of holding of an enquiry having been satisfied, the decision of this Tribunal in J.P. Yadav v. Union of India and Ors. delivered by the Tribunal in an identical action by respondents, which has been affirmed in WP (C) No. 17458 of 2004 on 6.12.2005 by the High Court of Delhi, as a binding precedent, covers on all fours the present case as well.
11. learned Counsel of respondents states that Article 81(B) introduced in Education Code of KVS ensures a reasonable opportunity to the concerned in the PE, which has been accorded to applicant as well, but once it has been found that holding of an enquiry on recording reasons by the Commissioner would cause embarrassment to the girl students having been dispensed with, resort to Article 81(B) does not suffer from violation of principles of natural justice.
12. learned Counsel would also contend that overwhelming evidence of girl students clearly demonstrated that in the guise of the yoga training applicant was in the habit of touching the sensitive part of the body of the girl students and used to make filthy comments. Applicant would issue immoral instructions and use to take liberty on the pretext of meditation while the girl students have been practicing it by closing their eyes. Accordingly, it is stated that once the required procedure has been complied with no prejudice has been caused to applicant. Accordingly, orders passed by the respondents are in consonance with the law declared by the Apex Court and, therefore, he prays for dismissal of the OA.
13. learned Counsel of respondents has also furnished to us the official record.
14. On careful consideration of the rival contentions of the parties and perusal of the material on record, what we find is that not only one but several girl students have accused applicant of indecency, touching their body parts and making lewd remarks. Not only once but twice the allegations have been substantiated by them on reiteration. Accordingly, the PE when constituted in the course of statements of the witness recorded an opportunity to applicant to explain his version having been afforded, the finding recorded by the DA is after following the due process of law under Article 81(B) of the KVS Code. Article 81(B) of the Code provides as under:
81.(B) Termination of Services of an employee found guilty of immoral behaviour towards students.
Whenever the Commissioner is satisfied after such a summary enquiry as he deems proper and practicable in the circumstances of the case that any member of the Kendriya Vidyalaya is prima facie guilty of moral turpitude involving sexual offence of exhibition of immoral sexual behaviour towards any student, he can terminate the services of that employee by giving him one month’s notice or 3 months pay and allowances accordingly as the guilty employee is temporary or permanent in the service of the Sangathan. In such cases procedure prescribed for holding enquiry for imposing major penalty in accordance with CCS (CCA) Rules, 1965 as applicable to the employees of the Kendriya Vidyalaya Sangathan, shall be dispensed with provided that the Commissioner is of the opinion that it is not expedient to hold regular enquiry on account of serious embarrassment, to the student or his guardians or such other practical difficulties. The Commissioner shall record in writing the reasons under which it is not reasonably practicable to hold such enquiry and he shall kept the Chairman of the Sangathan informed of the circumstances leading to such termination of services.
15. In Avinash Nagra v. Navodaya Vidyalaya Samiti and Ors. , where allegations were levelled against a teacher of improper conduct with girl students and their sexual abuse has been in issue, wherein the following observations have been made:
11. It is in this backdrop, therefore, that the Indian society has elevated the teacher as `Guru Brahma, Gurur 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 teachers 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 owed 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 social 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 inquiring 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 for the efficiency of the education system as pillar of built 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 of 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 indifference on the part of all in rural India except some educated people. Education to the girl children is nation’s 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 girls. 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 in 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 parent is 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 an ice berg in the discipline of teaching, a noble and learned professing; 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 pannacea but a nail on the coffin. It is self-inspection and correction that is supreme. It is seen that the rules wisely devised have given the power to the Director, a highest authority in the management of the institution to take decision, based on the fact situation, whether a summary enquiry was necessary or he can dispense with the services of the appellant by giving pay in lieu of notice. Two safeguards have been provided, namely, he should record reasons for his decision not to conduct an enquiry under the rules and also post with facts the information with Minister, Human Resources Department, Government of India in that behalf. It is seen from the record that the appellant was given a warning of his sexual advances towards a girl student but he did not correct himself and mend his conduct. He went to the girl hostel at 10 p.m. in the night and asked the Hostel helper, Bharat Singh to misguide the girl by telling her that Bio-Chemistry Madam was calling her; believing the statement, she came out of the hostel. It is the admitted position that she was an active participant in cultural activities. Taking advantage thereof, he misused his position and adopted sexual advances towards her. When she ran away from his presence, he persued her to the room where she locked herself inside; he banged the door. When he was informed by her room mates that she was asleep, he rebuked them and took the torch from the room and went away. He admitted his going there and admitted his meeting with the girl but he had given a false explanation which was not found acceptable to an Inquiry Officer, namely. Asstt. Director. After conducting the enquiry, he submitted the report to the Director and the Director examined the report and found him to be not worthy to be a teacher in the institution. Under those circumstances, the question arises: whether the girl and her room-mates 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 for tortuous process of cross-examination. Their statements were supplied to the appellant and he was given an opportunity to controvert the correctness thereof. In view of his admission that he went to the room in the night, though he shifted the timings from 10 p.m. to 8 p.m. which was found not acceptable to the respondents and that he took the torch from the room, do indicate that he went to the room. The misguiding statement 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 gone 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 the principles of natural justice.
16. If once has regard to the above, in the matter of Article 311(2) non-following the regular process of enquiry and in turn repercussion of violation of principles of natural justice has been negated.
17. In the matter of protection of Human Rights Act, 1993 and more particularly human rights, even in the matter of employer on sexual harassment to a woman employee the guidelines as well as norms formulated by the Apex Court in Visakha v. State of Rajasthan , clearly ruled that what defines a sexual harassment is inclusive of an of demand of sexual favour, making sexually colored remarks, physical contact and advances. In such view of the matter when in employment the concept of protection of Human Rights is introduced the same mutatis mutandis would also extend to an educational institution and would be available even to a student who has a right to protect her right as per Section 2 (d) of the Act ibid. Accordingly, in Babban Prasad Yadav’s case (supra), in a case where on account of moral turpitude relating to lewd remarks of a teacher the decision of the High Court to set aside the order of suspension has been viewed in the light of the decision of the Apex Court in Avinash Nagra’s case (supra), with the following observations:
9. The last observation was not based on the fact that the employee in that case was a probationer at all. Indeed the embarrassment to the girl student would hardly be different merely because the alleged offender is a permanent employee. Besides, under Article 311(2) itself an enquiry may be dispensed with under certain circumstances. We have no doubt that those circumstances may include a situation as indicated in the rule of the institution as mentioned hereinbefore.
10. The High Court particularly erred in requiring that such a charge needed to be proved beyond all reasonable doubt. This is against the principles governing a departmental enquiry in general and the unchallenged rules of the appellant institution in particular. The reason sought to be given by the Director for dispensing with the enquiry has been held by the High Court to be “unconstitutional and not legal”. This finding is also unacceptable since the Director has used the language of the rule. Furthermore, having regard to the approval of the rule in question in the decision of Avinash Nagra it was not open to the High Court to have come to the conclusion that the reason given by the Director for dispensing with the enquiry was unconstitutional or illegal.
18. As regards decision of the Tribunal in Bishwanath Paul’s case (supra), in the matter of a complaint of misbehavior with the students on bias of the controlling officer and non-supply of the statements recorded and report of the PE basically on the ground that the procedural lapses have taken place, termination under Article 81(B) has been set aside, applying the test of Wednusbury principle of reasonableness. As KVS adopts for procedure of holding enquiry mutatis mutandis the provisions of CCS (CCA) Rules, 1965, any employee/teacher in KVS having protection of Article 311(2) of the Constitution of India his/her services cannot be dispensed with without following the due process of law. In a normal case Article 311(2) of the Constitution would envisage holding of disciplinary proceedings as a condition precedent for invoking any punishment referred to therein, but an exception to Article 311(2) is dispensation of enquiry as not being reasonably practicable under Article 311(2)(b) of the Constitution of India and in KVS it has been introduced as Article 81(B) of the Code ibid. As per Code of Conduct in Chapter-VI and in Article 59 of the Code itself the duty of every teacher under Clause 12 is to give regard to each individual pupil as capable of unique development and of taking his due place in the society and help him to be creative as well as cooperative. Clause 14 of Article 59 requires a teacher to have an exemplary moral character. His dealing with the members of the opposite sex in the Vidyalaya or outside, shall not be such as would cause reflection on his character or bring discredit to the Vidyalaya. Accordingly, to maintain the discipline in a matter where any complaint regarding moral turpitude involving sexual offence or exhibition of immoral sexual behaviour towards any student is received and is prima facie substantiated on an enquiry where an opportunity is accorded to the concerned, then the Commissioner is empowered to record reasons in writing on dispensation of enquiry to terminate the services of a teacher. The object sought to be achieved in such a procedure is that a student who is tender in age and innocent when dares to speak against a teacher of sexual misbehavior and if this misbehavior in a discreet PE on deposition is stated subsequently in a regular enquiry by calling the students would not only expose her to gruel cross-examination but also would have an effect of exposing her to further insult that would carry such an impact in the mind of the students which would not only hamper her studies but also in the society her reputation would go down. Another aspect is the safety and security of such a student. Unless the enquiry so conducted finds any false deposition, malice towards a particular teacher or an act of revenge or to teach such a teacher a lesson on application of mind by the Commissioner, justice should be done to the concerned. Accordingly, we have no hesitation to hold that lightly or arbitrarily the power vested under Article 81(B) of the Code should not be misused but in a case where an enquiry by an independent person without any motive or retaliation if it is established that the teacher has sexually abused the female student and also is by his indecent behaviour by bringing disrepute to the institution exercise of Article 81(B) on dispensation of enquiry would neither attract the full fledged procedure of enquiry nor principles of natural justice. The principles of audi alteram partem have been taken care of during the PE on accord of reasonable opportunity to applicant.
19. From the cumulative reading of the ratio laid down in the case of Avinash Nagra and Babban Prasad Yadav (supra) what has been made as a condition precedent is holding of a summary enquiry, finding of guilt of moral turpitude, satisfaction of Commissioner as to the one being prima facie guilty and also its satisfaction as to dispensation of enquiry and reasons therefor.
20. The aforesaid satisfaction of the authorities is depending upon the circumstances of the case and the reasons recorded would not have to be amenable as if we act as an appellate authority. Whatever the situation prevail the reasons recorded by the DA then would not be judged by stepping into the shoes of the DA if the reasons are apt without any malafide or personal bias would not have to be interfered in any manner.
21. We have in the perspective of the present case and facts and circumstances perused not only the statements of the girl students but also found made both in the discreet enquiry as well as in the PE. Consistently the students without any influence or motive complained against applicant as to his indecent behaviour with them which tends not only to outrage their modesty but also unbecoming of a guru.
22. Insofar as the pre-condition of compliance, i.e., the pre-requisite of resort to Article 81(B) is concerned, on a PE with an opportunity to applicant of participation and furnishing of each and every material relied upon, the aforesaid has been discharged with in consonance with the dicta in Avinash Nagra as well as Babban Prasad Yadav cases (supra). In the memorandum issued to applicant charges, facts in support, enquiry report etc. having been furnished the DA recorded reasons as to non-practicability of the enquiry for dispensing with it, which ensures the safety and security of the girl students and their humiliation at the hands of applicant on cross-examination. Accordingly, these grounds are not only apt in the circumstances but in consonance with the law declared. The contention put-forth that the written statement has not been considered, which was submitted by applicant in reply to show cause, we find that scores of certification of other boy students as well as girls as to innocence of applicant have been highlighted is the only defence which is an after thought as the statements of girl students cannot be doubted in any manner and loose its credibility. We do not find any motive as to deposition of these witnesses against applicant. Applicant is neither holding a prime position in politics nor is he such an important person that to oust him from service a conspiracy would have to be entered into and statements are fabricated.
23. In Hindu Society a girl with whom any sexual misbehavior had taken place with our samaskara a daughter would hesitate to describe the indecent misbehavior even to her mother. But once such misbehavior is reported and supported with proof by young girls would not only be credible but also its veracity cannot be doubted in any manner. The gestures and the lewd remarks made by applicant has kept him out of the ambit of definition of guru and rather by his acts he has proved himself to be an animal and a creature beyond the orderly society instead of teaching virtues of yoga and its importance in the guise of asanas he has misused his position as a teacher and acceded his jurisdiction by his depraved mind to attempt to molest the girl students and to arrive at a sadistic sexual pleasure out of it by his remarks, gestures with a view to feel their skin, certainly deserves no leniency. It is a famous saying that God helps those who help themselves, once a person by his immoral deeds as a guru has shown his weakness and has conducted himself of unbecoming of a teacher he has betrayed the faith deposed in the institution and the status of a teacher and tarnished the image of KVS, the institution which has progressed towards excellence. It is also a famous saying that one dirty fish pollutes the entire pond, such a teacher does not deserve any sympathy and has to be fished out having polluted the stream of KVS and even if there is any discrepancy in the matter of following rules when principles of natural justice in its strict sense are not applicable in dispensation of enquiry in such circumstances the concept of any prejudice would have to be ruled out.
24. We do not find any false implication of applicant or any plot to frame him in the allegations. He has been held guilty of what he had actually committed, which is in accordance with rules.
25. The appellate order need not be a speaking order when the order passed by the DA is reasoned. However, by considering the contentions raised by applicant in his appeal the appellate order indicates application of mind and being reasoned is perfectly illegal.
26. The decision of the Cuttack Bench in Bishwanath Paul’s case (supra) cited by applicant is distinguishable and is overridden by the decision of the Apex Court in Babban Prasad Yadav’s case (supra).
27. In the result, for the foregoing reasons, the OA is found bereft of merit and is accordingly dismissed. No costs.