JUDGMENT
Jaspal Singh, J.
(1) The central-stage is provided by Kendriya Vidyalaya, Rajkot. Mr.Misra was teaching there. He was a post graduate teacher (chemistry) and had at his back sixteen years of meritorious service. On February Ii, 1988 he was served with an order issued by the Commissioner of Kendriya Vidyalaya Sangathan. It was as follows: DATED-LL/2/1988No. F.8-75/87-KVS(Vig) Order 1. Whereas Shri R.S.Mishra, Pgt (Chem.), Kendriya Vidyalya, Rajkot has been found guilty of the moral turpitude involving exhibition of immoral sexual behavior towards the girl students of his Vidyalaya. 2. And Whereas, it considered that the conduct of the said Shri R.S.Mishra, is such as to render his further retention in the service of the Kendriya Vidayalya Sangathan undesirable. 3. Now, Therefore, the undersigned in exercise of the powers conferred by the Board of Governors, hereby terminates the services of Shri R.S.Mishra, Pgt (Chemistry) with immediate effect. 4. The said Shri R.S.Mishra will be paid pay and allowances equal to three months, in lieu of the notice, period. sd/- (Dr.R.C.Sharma) Commissioner.”
Aggrieved by the said order, Mr.Misra filed a statutory appeal to the Chairman but without success. He has now challenged the legality and validity of the order of termination through this writ and claims that he is a victim of the wrath of one Mr. Jolly, the then Principal of the School who first invited false complaints and thereafter managed to have a tailored report against him from Dr.K.M.Patel. This then is the summum bonum of his case. The details follow.
(2) It all started in September, 1987. To be precise, September 14, 1987. On that day two girl students of the School, Kumari Reena and Kumari Chhaya, lodged written complaints with the Principal in regard to the misbehavior of Mr.Mishra. The Principal, thereupon “investigated the complaints” and reported the matter to the Assistant Commissioner, Ahmadabad with the assertion that the complaints had substance. Not only this, the Principal further stated that about 60 more students of class Ix and X of the Vidayalya had also made complaints against the misbehavior of Mr.Mishra. On receipt of the said communication, the Assistant Commissioner deputed one Dr.K.M.Patel, Education Officer, to inquire into the allegations. Dr.Patel submitted his report on September 28, 1987 holding that the petitioner was prima facie guilty of moral turpitude involving exhibition of immoral sexual behavior towards the girl students of his Vidyalaya. Since Dr.Patel had found Mr.Mishra prima facie guilty of the charges, the Assistant Commissioner could not possibly sit over the matter and he did not. He sent the report of Dr.Patel to the Commissioner of the Sansthan recommending Mr.Mishla’s termination of services under Article 81(b) of the Education Code of the Kendriya Vidyalya Sansthan. I would be dealing with Article 81(b) of the Education Code for Kendriya Vidyalaya a little later. Let me first reproduce the said letter of the Assistant Commissioner. It runs as under: “THE Commissioner Kendriya Vidyalaya Sangathan, Jnu Campus, New Mehrauli Road, New Delhi-110007. Sub : Action against Shri R.S. Misra, Pgt (Chemistry), Kendriya Vidyalya, Rajkot under Article 81(b) of Education Code (or Kendriva Vidyalavas. Sir, I am forwarding herewith a copy of letter No.F.KVR/87 dated 17.09.87 addressed to this Office by the Principal, Kv Rajkot (marked as Annexure-A). Immediately on receipt of the said letter from the Principal, Kv Rajkopt I deputed Dr.K.M.Patel, Education Officer of this office to proceed to Rajkot and to inquire into the allegations levelled against Shri R.S.Misra. A copy of Dr.K.M.Patel’s fact finding report is enclosed (marked as Annexlire-B). As would be seen from the report of the inquiry conducted by Dr.Patel, Shri Misra is prima facie guilty of moral turpitude involving exhibition of immoral sexual behavior towards the girl students of Class Ix to Xii (Science Stream) of Kv Rajkot. Retention of such an employee in the services of the Sangathan is detrimental. It may be added here that it is not expedient to hold regular inquiry on account of serious embarrassment to the girl students or to their parents. 02. I, therefore, recommend that the services of Shri R.S.Misra, Pgt (Chem) of Kv Rajkot may kindly be terminated by giving him three months pay and allowances by invoking the provisions of Article 81(b) of the Education Code for Kendriya Vidyalayas. Yours faithfully, sd/- (A.K. Ray) Assistant Commissioner”
(3) It appears that consequent upon the letter of the Assistant Commissioner reproduced by me above. a note was prepared by one Mr.J.R.Bhardwaj, Vigilance Officer. That note is of October 28, 1987 wherein he opined that Article 81(b) of the Education Code required to be invoked and that the services of Mr.Mishra ought to be terminated. He concluded: “BEFORE the Order terminating the services of the teacher in the aforesaid manner is issued, the case may kindly be shown to the Chairman, Kvs in terms of the provisions of the Education Code referred to above [Article 81(b)] because the procedure prescribed for holding enquiry for imposing major penalty in accordance with C.C.S. (C.C.A.) Rules is being dispensed with in this case on account of serious embarrassment to the girl students or to their guardians.”
As is usual with such office notes, it too went through number of hands including the Commissioner and so also the Chairman. They all butifully, if I may say so/appended their signatures in approval. Thus was issued the order of termination dated February Ii, 1988 to which reference has already been made by me above.
(4) A few more words need to be said before I come into grip with the arguments advanced. Mr.Mishra had, and as already noticed by me above, preferred an appeal against the order of termination. It so happened that while that appeal was pending he preferred an appeal against his termination to the Commissioner as well praying for his reinstatement in service. The appeal, as per the Counter of the respondents, “was considered by the Commissioner, K.V.S. and he ordered a fresh investigation by deputing Sh.D.C.Solanki, Assistant Commissioner, K.V.S. (retired)”. This gave a new twist to the case. Mr.Solanki went ahead with the investigation and came to the conclusion that Mr.Misra had been unnecessarily victimised and that the whole case was “designed by the then Principal Mr.Jolly to involve Mr.Mishra in moral turpitude and thus securing his termination.” Thus whereas the first report had indicted Mr.Mishra, the second investigation had projected him to be as innocent as a lamb. The matter, however, did not rest there. On receipt of that report the authorities invited comments on it and from none other but the Assistant Commissioner who had already recommended the termination of services of the petitioner and who had found the report of Dr.Patel to be worthy of acceptance. As was to be expected the Assistant Commissioner remained stuck to his earlier stand and dug holes into what Mr.Solanki had stated. It may also not be out of place to mention here that Mr.Misra had been alleging throughout that the said Assistant Commissioner had been in collusion with Mr.Jolly. It appears that while submitting his comments the said Assistant Commissioner did not hesitate in slinging mud even on Mr.Solanki. Anyhow, it appears that after the report of Mr. Soianki letters were written to the parents of the two girl students to have their “views” on the issue and to know “the real facts concerning the instances of misbehavior by Sh.Misra”. This was despite the fact that the said two girl students had already withdrawn their complaints. The reply from the parents was that Mr. Misra had actually misbehaved. After all this exercise the Chairman dismissed the appeal.
(5) Since Article 81(b) of the Education Code has figured above and as much ammunition was directed at it during the arguments, I may as well reproduce it. It runs as under: “81.(B)Termination of Services of an employee found guilty of immoral behavior 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 Kendriva Vidyalaya is prima facie guilty of moral turpitude involving sexual offence or exhibition of immoral sexual behavior towards any student, he can terminate the services of that employee by giving him one month’s 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 Vidayalya 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 keep the Chairman of the Sangathan informed of the circumstances leading to such termination of services.”
(6) The analysis of Article 81(b) reproduced above would go to show that in cases of “moral turpitude involving sexual offence or exhibition of immoral sexual behavior towards any student”, the Commissioner can dispense with the procedure prescribed for holding enquiry for imposing major penalty in accordance with Ccs (CCA) Rules, 1965 as applicable to the employees of the Kendriya Vidyalya Sangathan provided, “the Commissioner is of the opinion” that it is not ”expalient” to hold regular enquiry on account of serious embarrassment to the student or his guardian and that the Commissioner “shall record in writing” the reasons under which “it is not reasonably practicable” to hold such enquiry.
(7) The perusal of Article 81(b) of the Education Code further goes to show that the Commissioner is not only competent to dispense with the requirement of regular enquiry on the grounds as set out above, but can also terminate the service of the employee provided he (the Commissioner) is “satisfied” after “such a summary enquiry as he deems proper and practicable in the circumstances of the case”, that the employee concerned “is prima facie guilty of moral turpitude involving sexual offence or exhibition of immoral sexual behavior towards any student”.
(8) As would be borne out from above, it is the Commissioner alone who is entitled to dispense with the procedure of regular enquiry. Surely, the power is there. But then, it is hedged in with a condition of setting down reasons in writing why power is exercised. The duty to specify reasons cannot be dispensed with. The power being drastic, it can neither be allowed to be exercised arbitrarily nor can it be allowed to remain uncanalised. That is why the requirement of reasons which must be good, which must be objective and which must be germane to the issue. And, the reasons so supplied would not be above judicial scrutiny. True, the Court cannot go into the adequacy or sufficiency of reasons. It is also true that judicial review would be limited. However, the court can certainly examine the reasons so supplied to know whether they are really germane to the issue or a mere cloak or devise or a pretence to somehow do away with the regular enquiry. In short the reasons must be such as would spell out clearly and unambiguously that it would not be reasonably practicable to hold such enquiry.
(9) Unfortunately, there is nothing on the record to show that the Commissioner had at any stage come to the “opinion” that it would not be “reasonably practicable” to hold regular enquiry. The Departmental file which was produced and perused during arguments does not show the formation or existence of any such opinion. It also does not show the existence of any reason for not holding an enquiry. Though Article 81(b) of the Education Code requires that the Commissioner “shall record in writing” the reasons under which “it is not reasonably practicable” to hold an enquiry, I could discern no such reason recorded in writing by the Commissioner.
(10) It was contended by the learned counsel for the respondents that as the Commissioner had the material before him upon which he could form his “opinion” fairly and as he approved the office draft prepared by the vigilance department of the Sangathan by putting his signatures on it, therefore, the office draft should be taken to be the reasons recorded by the Commissioner himself.
(11) The office note to which my attention was drawn is by J.R. Bhardwaj, Vigilance Officer. The relevant portion to which my attention was drawn runs as under:
“2.This is a clear case where Shri R.S.Misra, Pgt (Chemistry) of Kendriya Vidyalaya, Rajkot has been found guilty of moral turpitude involving sexual offence and exhibition of immoral sexual behavior towards grown up students of the Vidyalaya. In this connection the gist of the charges levelled by 45 girl students against the said teacher, as contained in the investigation report of Dr. K.M. Patel, Education Officer of the Ahmedabad Region Along with his own findings, may kindly be seen at pages 12-18/cor. Retention of this kind of teachers in an educational institution is totally undesirable. This is a fit case for invoking Article 81(b) of the Education Code to dispense with the services of the teacher by giving him three months pay and allowances being permanent employee of the Sangathan. The verbatim reproduction of the provisions of Article 81(b) of the Education Code may kindly be seen at page 2/ante.
“3.Before the order terminating the services of the teacher in the aforesaid manner is issued, the case may kindly be shown to the Chairman, Kvs in terms of the provision of the Education Code referred to above because the procedure prescribed for holding enquiry for imposing major penalty in accordance with the Ccs (CCA) Rules is being dispensed with in this case on account of serious embarrassment to the girl students or to their guardians.”
Below the office note appear the signatures of the Commissioner and others including the Chairman.
(12) Does the argument meet the requirements of Article 81(b) of the Education Code? I think the answer must be in the negative. The office note of the Vigilance Officer cannot become the note of the Commissioner. The duty is on the Commissioner to specify reasons in writing and this duty cannot be dispensed with, defeated or circumvented by any such method. The power being drastic, the Article insists upon the Commissioner to set down himself the reasons in writing. In any case, the Commissioner could not permit his decision to be influenced by the dictation of others as this would amount to abdication and surrender of his discretion. If what is propounded by the respondents is accepted, it would amount to abject abdication and surrender of that power.
(13) In any case, let us again have a look at the office note. It does not recommend the dispensation of enquiry. It does not even seek orders of the Commissioner on that point. It only says that since regular enquiry ‘is being dispensed with” therefore, before an order terminating the services is issued, the case ma\f be shown to the Chairman. In other words, the office note accepts the position that regular enquiry stood already dispensed with and what remained was only the issuance of the order of termination and that before such order could be issued the case required to be brought to the notice of the Chairman. And, it is for this reason that the file was forwarded by the Commissioner to the Chairman. To make it further clear, the office note has nothing to do with the requirements relating to dispensation of enquiry. -It relates only to issuance of order of termination.
(14) It was next argued that the Assistant Commissioner A.K.Ray had given reasons in writing for dispensing with the enquiry and since Mr.Ray could also terminate the services of the petitioner, his letter of September 30, 1987 addressed to the Commissioner should be taken as sufficient compliance with the requirements of Article 81(b) of the Education Code. The relevant portion of that letter is in following terms:
“AS would be seen from the report of the inquiry conducted by Dr.Patel, Shri Misra is prima facie guilty of moral turpitude involving exhibition of immoral sexual behavior towards the girl students of Class Ix to Xii (Science Stream) of Kv Rajkot. Retention of such an employee in the services of the Sangathan is detrimental. It may be added here that it is not expedient to hold regular inquiry on account of serious embarrassment to the girl students or to their parents.”
“02.I, therefore, recommend that the services of Shri R.S.Misra, Pgt (Chem) of Kv Rajkot may kindly be terminated by giving him three months pay and allowances by invoking the provisions of Article 81(b) of the Education Code for Kendriya Vidyalayas.”
(15) The letter makes one thing clear and it is that the decision to dispense with the enquiry was taken by Assistant Commissioner A.K.Ray. Could he take this decision? Surely not. The reason being he is not the Commissioner. The Article invests the Commissioner only with the power. It could not be exercised by his subordinate.
(16) In any case, what is the reason advanced by the Assistant Commissioner? He says: “It is not expedient to hold enquiry on account of serious embarrassment to the girl students or to their parents.” The language is, of course, lifted verbatim from Article 81(b). But then where from did the Assistant Commissioner gather that holding of the enquiry would not be “expedient” and that it would cause “serious embarrassment to the girl students or to their parents”? The girl students never made any such assertion nor did their guardians make any such representation. Even the Principal of the School did not say so in his otherwise very long letter of September 17, 1987 addressed to the Assistant Commissioner. There was thus no material. No evidence. No assertion. Nothing at all. How could the Assistant Commissioner thus form that opinion? Mere reproduction of the language of Article 81(b) is no panacea. The decision to dispense with the departmental enquiry cannot be rested solely on the ipse dixit of the concerned authority [See Jaswant Singh v. State of Punjab ] nor is a disciplinary authority expected to dispense with disciplinary inquiry lightly (See Union of India v. Tulsiram Patel . It is true that Article 81(b) of the Education Code makes the decision of the Commissioner in this behalf final but then as already stated above, such finality can certainly be tested in a court of law and interfered with if the action is found to be arbitrary or out of ulterior motives or motivated by extraneous considerations or merely a ruse to dispense with enquiry [See: Union of India v. Tulsiram Patel (supra); Satyavir Singh v. Union of India ; Shivaji Atmoji Sawant v. State of Maharashtra , lkramuddin Ahmed Borah v. Supdt. of Police, Darrang 1988 Supp. Scc 663]
(17) It was contended that judicial review cannot be converted into an appeal. I agree. In Chief Constable of the North Wales Police v. Evans (1982) I Wlr 1155 Lord Hailsham said: “THE purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court.”
Lord Brithman observed: "...JUDICIALreview, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made..." And held that it would be an error to think: "....THATthe court sits in judgment not only on the correctness of the decision-making process but also on the correctness of the decision itself." De Smith tells us: "THE authority must genuinely address itself to the matter before it: it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case. ....It must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. Nor where a judgment must be made that certain facts exist can a discretion be validly exercised on the basis of erroneous assumption above those facts..." (18) The problem is that the discretion has been exercised in this case on absolutely no material, and therefore arbitrarily and capriciously. (19) In Jaswant Singh v. State of Punjab it was observed by the Apex Court: "OUR attention was not drawn to any material existing on the " date of the impugned order in support of the allegation con- tained in paragraph 3 thereof that the appellant had thrown threats that he and his companions will not allow holding of any departmental enquiry against him and that they would not hesitate to cause physical injury to the witnesses as well as the enquiry officer if any such attempt was made. It was incumbent on the respondents to disclose to the court the material in existence at the date of the passing of the impugned order in support of the subjective satisfaction recorded by respondent 3 in the impugned order. Clause (b) of the second proviso to Article 311 can be invoked only when the authority is satisfied from the material placed before him that it is not reasonably practicable to hold a departmental enquiry." The legal position being as noticed above, the respondents have failed to draw the attention of the court to any material which could be the basis of subjective satisfaction recorded by the Assistant Commissioner.
(20) It was argued that since the charge against Mr.Misra was of moral turpitude involving girl students therefore, it could be assumed that holding of an enquiry would not have been “expedient” as it would have caused serious embarrassment to the girl students or to their parents. I am afraid there cannot be any such assumption. It appears that the girl students appeared before the Principal and made written complaints also. Not only this, they even appeared before Dr.Patel during the summary enquiry conducted by him. There was no reluctance, no demur, not even a whisper in protest against their being made to appear and depose before the Principal or thereafter before Dr.Patel. They or their parents at no stage gave expression directly or even obliquely to any embarrassment much less “serious embarrassment”. As already noticed above there had to be subjective satisfaction and that could be based only on material. And material there was none. Mere parrot-like repetition of the words from Article 81(b) could not do. The Authority cannot act mechanically nor can it exercise the discretion vested in him according to whim, caprice or ritual. As observed by Lord Halsbliry in Susannah Sharp u. Wakefield 1891 Ac 173, discretion allowed to an authority is intended to be exercised “according to rules of reason and justice, not according to private opinion…… according to law and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself.”
(21) I am sorry to say that the discretion exercised by the Assistant Commissioner, even if he was competent to exercise any, suffers from the vices enumerated above.
(22) This still is not the end of the matter.
(23) It was contended by the learned counsel for the petitioner that Article 81(b) of the Education Code is violative of the Constitution of India as it incorporates a reason for dispensation of regular enquiry on a ground which finds no mention in sub article (2) of Article 311 of the Constitution. The objection, it may be noticed, was with regard to that part of Article 81(b) of the Rules which provides for dispensation of enquiry on the ground 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 guardian or such other practical difficulties.” However, on the other hand it was contended from the side of the respondent that the part of the Rule reproduced above should not be read in violation and that it forms an integral part of the whole Rule and more particularly of that part which follows the portion reproduced above. Let me, for the sake of convenience, reproduce the whole of the relevant portion. It is as follows: “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 Vidayalya 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 keep the Chairman of the Sangathan informed of the circumstances leading to such termination of services”
(24) The contention was that the portion of the Rule under fire is only explanatory of the phrase “not reasonably practicable to hold such enquiry” and in support emphasis was laid on the words “or such other practical difficulties” used in the portion objected to. It was argued that the use of the words “or such other practical difficulties” clearly goes to show that “serious embarrassment to the student or his guardian” was also taken as a practical difficulty and therefore, for that reason the portion objected to was not independent of the phrase “not reasonably practicable to hold such an enquiry.”
(25) To my mind the key words in the said two parts are “expedient” and reasonably practicable.”
(26) Under the first part the enquiry can be dispensed with if the Commissioner is of the opinion that it would not be “expedient” to hold it. “Expedient” is a word of large import. It may relate to financial advantage, it may be used in terms of public interest and finds being repeatedly used while emphasising ends of justice. It comprehends whatever is suitable and appropriate in reason for the accomplishment of the specified object. When used as an adjective, it is used as apt and suitable to the end in view, advisable, for the bes.t interest of, advantageous and in furtherance of. The word is analogous to appropriate, suitable, useful, eligible, agreeable, desirable etc.
(27) The expression “reasonably practicable” on the other hand cannot be said to be analogous to “expedient”. In Webster’s Dictionary “practicable” is defined as “possible to be accomplished with known means or resources”. Though dealing with a different point. Lord Goddard in Lee v. Nursery Furnishing Ltd. (1945) I All Er 387 adopted a definition in the Oxford Dictionary of “capable of being carried out in action” or “feasible”.
(28) In a judgment coming from Australia and reported as Potter v. Neave (1944) S.A.S.R., 19, Mayo J. said that “practicable” may possibly be paraphrased as “capable of being dune or accomplished with the available resources whatever they may be.”
(29) In Re Affairs of Farquhar (1943) 2 All E.R.781 the section under consideration ran as follows: "SUBJECT to the provisions of this section and to the provisions of this part of this Act relating to the priority of debts, the court shall provide in a liabilities adjustment order for the payment of the debts proved in the proceedings, either in full or to such an extent as the court considers practicable..." Lord Greene, M.R. observed: "IT is said that that language entitled the court to say that a particular debt ought, on grounds of fairness, to be scaled down. it is said that the court has jurisdiction so to provide. In my opinion, the language is-not wide enough to cover such a general proposition. The words are not "to such an extent as the court considers equitable" or "fair" or "reasonable." (30) True, as pointed out by Halroyd Pcarce, L. J., in Brown v. National Coal Board (1960) 3 All E.R. 594, the word "reasonably" has a slight tendency to modify the word "practicable" but still it does not tend to make it analogous with "expedient". Like Mark Twain's East & West they remain poles apart. (31) The Supreme Court in Union of India v. Tulsiram Patel dealt with the phrase "it is not reasonably practicable to hold" the enquiry. It says: "WHAT is requisite is that the holding of the enquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidates witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so or where the government servant by himself or together with or through others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held. It would also be reasonably practicable to hold the enquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening."
(32) The Supreme Court thus throws enough light on what is to be understood by the words “not reasonably practicable” and reiterates it in Satyavir Singh v. Union of India . Keeping in view the said exposition and so also what has already been noticed by the above, I do not think that that portion of Article 81(b) of the Education Code which says that the enquiry shall be dispensed with where “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 guardian” can be taken to be covered by “it is not reasonably practicable to hold such enquiry”. Rather, in my view. Article 81(b) of the Education Code provides a new ground for dispensation of enquiry which cannot be taken to be permissible. The argument that the dispensation of enquiry on account of “serious embarrassment to the student or his guardian” is unconstitutional and void as contravening Article 311(2) cannot thus be held to be without force.
(33) Yet another point remains to be decided. It revolves around that part of Article 81(b) of the Education Code which runs as under: “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 or exhibition of immoral sexual behavior towards any student, he can terminate the services of that employee by giving him one month’s or 3 months’ pay and allowances accordingly as the guilty employee is temporary or permanent in the service of the Sangathan.”
(34) Before I come into grip with the contentions raised, let me, even at the risk of repetition, recapitulate the essential facts. As would be recalled, after the Principal of the School had received complaints he had made a detailed report to Assistant Commissioner Mr. A.K. Ray. On receipt of that report Mr. A.K. Ray of his own and without even consulting the Commissioner, directed Education Officer Dr. K.M. Patel to enquire into the allegations. It was only after the receipt of the report from Dr. Patel that the Assistant Commissioner had written the letter of September 30, 1987 recommending termination of services of the present petitioner. The relevant portion of that letter may be reproduced again for purposes of convenience. It reads: “IMMEDIATELY on receipt of. the said letter from the Principal, K.V. Rajkot I deputed Dr. K.M. Patel, Education Officer of this office to proceed to Rajkot and to enquire into the allegations levelled against Shri R.S. Misra. A copy of Dr. K.M. Patel’s fact finding report is enclosed. As would be seen from the report of the Inquiry conducted by Dr. Patel Shri Misra is prima facie guilty of moral turpitude involving exhibition of immoral sexual behavior towards the girl students………..”
(35) The argument advanced on behalf of the petitioner is that under Article 81(b) of the Education Code it is only the Commissioner who is authorised to order the holding of summary enquiry and since he admittedly did not and as the enquiry in question was ordered by the Assistant Commissioner without even taking the Commissioner into confidence, the entire procedure adopted was bad. On the other hand it was contended on behalf of the respondents that the enquiry could be ordered even by the Assistant Commissioner and that the only requirement of Article 81(b) is that after such enquiry the Commissioner should regard it as “proper and practicable in the circumstances of the case”.
(36) I think that the interpretation suggested by the respondents would completely defeat the import of the provision. The language, to my mind, is clear and it shows that it is the Commissioner and Commissioner alone who is to order the holding of such a summary enquiry as he deems proper and practicable in the circumstances of the case. In my view, the words “as he deems proper and practicable” invite no other interpretation.
(37) Let us, for a moment, accept the argument of the respondents that enquiry can be ordered by anyone and that the words “as he deems proper and practicable” mean only this much that after the enquiry is so held the Commissioner should “deem” the same to be “proper and practicable”. However, unfortunately for the respondents, it is no where borne out from the record that the Commissioner had, after the receipt of the report of Dr. Patel, deemed it be proper and practicable in the circumstances of the case. My attention was not drawn to anything which could be taken even obliquely as compliance of that requirement. The respondents thus meet their Waterloo on this ground too.
(38) In the result I allow the writ petition, quash the order of dismissal dated February 11, 1988 and direct that the petitioner shall be reinstated in service forthwith with all consequential benefits from the date of his dismissal. Needless to say it would be open to the respondents, if so advised, to proceed against the petitioner afresh as per the Rules of the Education Code. No order is made as to costs.