Gokul Vs. Union of India [Bombay High Court, 07-06-2016]

Constitution of India – Article 14 – Central Civil Services (Classification, Control and Appeal) Rules, 1965 – Education Code of Kendriya Vidyalaya – Article 81 B – Whether ultra vires – Central Administrative Tribunal – Teacher – Termination – moral turpitude – Charges of – sexual misconduct with certain female students in the 4th Standard – Constitutionality of Article 81 B of the Education Code, upheld – Article 81 B of the Education Code empowers the Commissioner to terminate the services of an employee guilty of sexual misconduct, if, after a summary enquiry, his guilt is prima facie evident. This could be effected by three months’ pay in lieu of notice, for permanent employees, which was done in the instant case. The facts showed that adequate opportunity had been given to the Petitioner to represent his side, and principles of natural justice had been followed.


IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

CORAM: S.S.SHINDE & V.K.JADHAV,JJ.

WRIT PETITION NO.2625 OF 2014

Pronounced on : 07.06.2016

Gokul s/o Rajaramji Ingle Age: years, Occu.Nil Ex­Part KV Aurangabad Cantt., Ordinarily resides at HIG 54, Mhada colony, N­2, CIDCO, Near Vasant Dada Patil High School, Aurangabad.

PETITIONER

VERSUS

1] Union of India, Through the Vice Chairman, Kendriya Vidyalaya Sangathan, Shastri Bhavan Gage 6 Room 31, C­Wing, New Delhi – 110 016. [Copy to be served on the Standing Counsel, High Court of Judicature of Bombay Bench at Aurangabad]

2] The Commissioner, Kendriya Vidyalaya Sangathan, [Vigilance Section], 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi.

3] The Assistant Commissioner, Now the Deputy Commissioner, Kendriya Vidyalaya Sangathan, Mumbai Region­Mumbai. IIT Campus, Powai, Mumbai­400 076.

4] Mrs. Savita Job, Principal, Kendriya Vidyalaya, At Post Yevatmal, Dist. Yevatmal, Pin.445 001.

5] Mrs.Sunanda Pardeshi, TGT [Hindi], Kendriya Vidyalaya, Aurangabad [Resp.No.5 deleted as per Courts order dtd. 05.01.2016]

RESPONDENTS …

Mr.V.D.Sapkal, Advocate for the Petitioner Mr.K.B.Chaudhari, Advocate for Respondent Nos.2 to 4 Mr.S.B.Deshpande, ASG for Respondent No.1.

JUDGMENT

[Per S.S.Shinde, J.]:

This Petition takes exception to the impugned judgment and order dated 8th May, 2013, passed by the Central Administrative Tribunal, Bombay Bench at Mumbai [for short ‘CAT’] in Original application No.217/2013. There is also prayer for quashing and setting aside the order of termination of the services of the petitioner issued by the Commissioner of Kendriya Vidyalaya Sanghatan, New Delhi. Further direction is sought to the respondents to reinstate the petitioner in the employment. It is further prayed to hold and declare that Article 81 [B] of the Education Code for Kendriya Vidyalaya, is ultra vires to Article 14 of the constitution of India.

2] The CAT has extensively referred the facts of the case in the impugned judgment, and therefore, we do not feel it necessary to reproduce the said facts; as and when it is necessary we will make a reference to the relevant facts from the impugned judgment.

3] The learned counsel appearing for the petitioner submits that the service record of the petitioner prior to alleged incident is clean and unblemished. He was awarded ‘Bal Mitra Award’ by Vikrant Yuva Manch, Parbhani, in the year 1994-­1995. It is submitted that the petitioner has been implicated in the false offence with oblique motive on account of groupism and castism. An alleged enquiry has been conducted behind the back of the petitioner, without affording him an opportunity of being heard. The notice given to the petitioner did not contain the charge and material against him so as to enable the petitioner to give reply. An alleged statements and complaints made by the students and parents have not been shown to the petitioner, and he was orally directed to submit his say to the said complaints. An action taken against the petitioner on the basis of news item is arbitrary and contrary to the facts on the record. The Principal has not appointed a scheduled caste member on the Enquiry Committee. Mrs. Sunanda Pardeshi has intentionally prompted and instigated the students to give false complaints against the petitioner. The report submitted by the Committee is not fair, and it is only with a view to wrongly implicate the petitioner in an alleged incident. The said report is false and fabricated. Though, show cause notice was issued on 09.06.2011, the Principal had deliberately kept it with her, and same was served to the petitioner, almost after two months i.e. on 17.08.2011. The said show cause notice is without signature of competent authority. It shows non application of mind. The CAT failed to consider the fact that several parents have submitted their affidavits stating therein the innocence of the petitioner.

4] It is further submitted that, Article 81 [B] of the Education Code for Kendriya Vidyalaya is ultra vires to Article 14 of the Constitution of India, since under the said Article, holding of an enquiry is dispensed with thereby giving no opportunity to the delinquent to put forth his say. Said provision gives arbitrary power to the authority. Therefore, the impugned order dated 8th May, 2013, passed by the CAT, Bombay, Bench at Mumbai, is not legally sustainable.

5] It is further submitted that, the statement of the concerned students were not recorded in presence of the petitioner. The Constitution of the Committee was contrary to the provisions of Article 159 of Education Code inasmuch as, the Principal appointed five members instead of appointing three members as provided. It is further urged that, when there is provision for conducting full­fledged enquiry in respect of any misconduct before imposing major punishment, denying an opportunity to defend the case in the fullfledged enquiry is nothing but violation of principles of natural justice. It is argued that, termination of services of the petitioner, which is a major penalty, under the garb of dispensing with a full­fledged enquiry, is nothing but, an arbitrary action and thus violative of Article 14 of the Constitution of India.

6] The learned counsel appearing for the petitioner invited our attention to the pleadings in the Petition and grounds taken therein and submits that the principles of natural justice have not been followed in the present case. He also invited our attention to the judgment of the Division Bench in the case of