Thursday, December 1, 2011

OA No.275/2010 pronounced on ////////////////////////



TODAY, THIS THE ......... DAY OF ..............., 2011



A. Kalyan Rao,
S/o Rama Rao,
Aged 48 years,
R/a House No.18-2-384,
Adsare Nilaya,
Ramnagar Colony,
Chidri Road, Bidar – 585 403. ... Applicant

(By Advocate Shri A.R. Holla)

1. Union of India,
By Secretary, Ministry of Human
Resource Development,
Department of Education,
Shastri Bhavan, New Delhi – 110 001.

2. The Additional Secretary (HE),
Ministry of Human Resource Development and
Vice Chairman, Kendriya Vidyalaya Sangathan,
18, Institutional Area, S.J.S. Marg,
New Delhi – 110 016.

3. The Commissioner,
Kendriya Vidyalaya Sangathan,
18, Institutional Area, S.J.S. Marg,
New Delhi – 110 016.

4.The Assistant Commissioner,
Kendriya Vidyalaya sangathan,
Regional Office, K. Kamaraj Road,
Bangalore – 560 042.

5. The Principal,
Kendriya Vidyalaya,
Air Force Station, Bidar – 585 401. ... Respondents
(By Advocate Shri Vishnu Bhat)


Hon'ble Smt. Leena Mehendale, Member (A) :

The landmark judgment of the Hon'ble Supreme Court in the case of Vishaka & Others Vs. State of Rajasthan & Others reported in AIR 1997 SC 3011 better known as Vishaka Judgment has dealt with the case of sexual harassment of women at workplace which by extension also incude sexual harassment of girl students and, in fact, all students in school by adults. Appreciating the trauma of the victims in these situations, which the victim has to undergo not once, but, many times and for which most of the victims are normally hesitant to speak, the Apex Court has for the first time given elaborate instructions. Also appreciating that most of the victims of sexual harassment have a psychological need of getting over the trauma at an early stage, which would also mean that their evidence may not always be extremely coherent and sequential, the Supreme Court has laid down instructions for the offices on how to deal with such cases on the following lines.
(i) It should be the endeavour of all offices to ensure that cases of sexual harassment are not allowed to happen in the first place.

(ii) The Government of India should frame rules/guidelines. But, pending this, the offices themselves should have their own guidelines for dealing with the complaints of sexual harassment. These would be based on guidelines suggested by the Apex Court itself. These complaints must be enquired into by a committee.

(iii) The regular elaborate procedure of the departmental enquiry and especially the cross-examination of the witnesses may not always be possible in view of the trauma of the victims. Hence, the offices should form a committee would conduct summary enquiry to decide upon the complaint.

2. It was thus, for the first time, that a clear distinction has been made between an ordinary misconduct of an employee and the mis-conduct relating to sexual harassment. The gravity of the situation increases many fold when it is a case of sexual harassment of the students by the teacher. Although, high care must be taken to ensure that no false complaint may result in harming the career or tarnishing the image of an innocent person, it is also utmost important that the victim of sexual harassment must not be forced to keep on suffering continuously and quietly or be exposed to embarassing cross-examination. The present case deals with such an issue.

3. This OA has been filed on 30.06.2010 under Section 19 of the Administrative Tribunals Act, 1985, seeking to quash the order of the Disciplinary Authority dated 8.10.2009 as at Annexure-A/8 as also that of the Appellate Authority dated 10.06.2010 as at Annexure-A/12, both resulting in termination of the applicant for misconduct of sexual behaviour with two girl students.

4. The two orders are challenged on the following grounds as narrated in para 5 of the OA. Briefly, these are:-
(a) that the punishment has been given on the basis of summary enquiry;
(b) that the charge is vague and lacks material particulars;
(c) that the Committee conducting the summary enquiry did not give him copies of the statements of witnesses, nor an opportunity to cross-examine the witnesses;
(d) that the Appellate Authority has not considered the appeal in an objective manner. He has disregarded the grounds urged by the applicant that he was not provided with the gist of charges, copies of complaints, statements of students and opportunity to cross-examine. The Appellate Authority has rejected all these grounds and passed order confirming the order of Disciplinary Authority.
(e) The committee conducting the summary enquiry considered extraneous matters not related to the allegation of sexual harassment of students.
(f) In the 20 years of service of the applicant, there was no complaint of sexual/harassment against him. But, the committee has not considered this past record.

5. The applicant was working as a Teacher in Kendriya Vidyalaya, Air Force Station, Bidar from 24.1.1990 and after promotion as a Trained Graduate Teacher, he was assigned to teach High School students. The School where he taught and the classes was a co-education school. It is seen from the record available in the case that the mothers of two girl students gave a complaint to the Kendriya Vidyalaya Sanghathan authorities on 25.9.2008 complaining that the applicant showed sexual mis-behaviour against these two girl students of Class VII. Therefore, a preliminary enquiry was conducted by the Principal at the Vidyalaya level in which the aplicant was found to be prima-facie guilty of moral turpitude involving sexual behaviour towrds girl students. We find from Annexure-R/1 that the Principal was diligent enough and even the preliminary enquiry was through a committee of 5 members. On receiving this report through the Assistant Commissioner, Regional Office, Bangalore, the Commissioner, who is the Disciplinary Authority has passed the order dated 3.2.2009 (Annexure-R/2), invoking his authority under Article 81(B) of the Education Code for KVS, to conduct a summary enquiry against the applicant through another committee. The Disciplinary Authority was satisfied that the applicant is prima-facie guilty of moral turpitude as he has been found misbehaving with the girl students with a view to derive sexual satisfaction. He has also deliberated upon whether to hold regular enquiry under CCS (CCA) Rules, 1965, and concluded that it is not expedient to hold such enquiry as it would case serious embarassment to the girl students and the guardians. In view of the tender age of the girl students and their safety and security which must be protected by preventing their exposure to the tardy process of cross-examination, the Disciplinary Authority has dispensed with the holding of regular enquiry in accordance with CCS (CCA) Rules, 1965. Under Article 8(B) of the Education Code for Kendriya Vidyalayas, he is within his authority that whenever the conditions satisfy him for holding only a summary enquiry, he can do so. Using this authority and applying his discretion to protect the girl students of the tender age, he has, after due application of mind decided to go by the procedure of summary enquiry. The second committee consisted of new set of persons namely, (1) Ms. L. Chari, Education Officer, (2) Smt. Anu Thomas, Principal, KVS from CRPF, Yelahanka (i.e., another school), (3) Shri Paramashivam, Principal, KVS, MG Railway Colony, (The Supreme Court guidelines specifically mentions that atleast one member of the Committee must be a male member), (4) Ms. Sheela Ramanathan, Director, Human Rights, Law Network, Bangalore (Supreme Court guidelines specifically mentions that atleast one member of the Committee would be from some NGO working in the field of women rights or human rights).

6. The Committee's report is seen at Annexure-A/13 and is a fairly detailed report. It mentions that the enquiry was conducted on one single day, i.e., on 24.4.2009 from 9.00 am To 5.00 pm, in which enquiry, the charged officer (the applicant) was also heard and he had denied everything. However, on the basis of all the statements deposed before the committee by the girl students and parents, the committee concluded its report and submitted it on 8.6.2009 to the Assistant Commissioner at Bangalore, with the conclusion that the applicant has been found guilty of moral turpitude involving sexual behaviour with the girl students. The Assistant Commissioner forwarded this report to the Disciplinary Authority on 15.6.2009 along with all the records.

7. Thus, we find that the Disciplinary Authority has followed proper procedure. After the findings of the preliminary enquiry, he has gone for summary enquiry as permitted by Rules by appointing another committee. On receiving the report of the summary enquiry committee on 15.6.2009, he has issued a show cause notice dated 3.8.2009 (Annexure-A/6) to the applicant along with the charges, statement recorded in the summary enquiry and the summary enquiry report itselt, to which the applicant replied on 20.8.2009 (Annexure-A/7). Then after taking that into consideration, the Disciplinary Authority has passed the impugned order dated 810.2009 at Annexure-A/8. We find that this is a fairly elaborate and well reasoned order. Hence, we cannot find fault with it. Similarly, the Appellate Authority has also passed a detailed and well reasoned order on 10.06.2010, after giving personal hearing to the appellant on 6.5.2010. He has confirmed the order of the Disciplinary Authority. We cannot find any fault with this order also. The judicial review by this Tribunal is to ensure that due process of law is followed by the Disciplinary and Appellate Authorities and the jurisdiction of this Tribunal is limited only to that extent. We do not find anything to suggest that the due process of law was not followed.

8. Further, the learned counsel for applicant would rely upon the judgment of this Bench of the Tribunal in OA No.756/2001 which also dealt with the termination of the services of an employee found guilty in preliminary enquiry of immoral behaviour towards the girl students. That termination order, passed on the basis of preliminary enquiry was held by the Tribunal as invalid and the same view was also upheld by the High Court in Writ Petition No.23535/2002, dated 01.07.2002. Citing this, the learned counsel for the applicant argued for quashing the termination orders in the present OA.

9. To this citation, the learned counsel for respondents submits that much water has flown after the Tribunal's judgment in OA No.756/2001. What happened in that case was that simply based on the findings of the preliminary inquiry, the Disciplinary Authority had passed the termination order. The Tribunal and the High Court have specifically stated that the authority given under Article 81(b) of the Education Code of Kendriya Vidyalaya Sanghathan, allowing the Disciplinary Authority to hold a summary inquiry is not disputed. However, preliminary inquiry is not a summary inquiry. Use of the word 'summary iequiry as he deems proper and practicable' does not entitle the authority empowered to dismiss or remove an employee, to dispense with the need to give an opportunity to deny the charge or have his say in regard to evidence. The High Court further stated that even though the enquiry held by the Assistant Commissioner showed enough material which clearly and prima facie established the act of moral turpitude involving sexual or immoral sexual behaviour with students, still, it did not amount to a summary enquiry, but only amounted to preliminary investigation. Unless the charge is made known to the employee and the statements recorded or an extract thereof is made available to the employee and he is given the opportunity to deny the charge or show cause, the action still remains a preliminary investigation and not a summary enquiry. Therefore, the summary enquiry contemplated under Rule 81(b) was not completed. In para 21 of the judgment, the High Court has stated:

"21. ... All that we have to clarify is that reservation made to the Sanghathan to take action will not require the Sanghathan to hold a regular enquiry permitting cross-examination of the complainant /s or witnesses of the management. It will be sufficient if opportunity as contemplated in AVINASH NAGRA is given, if it wants to take further action, that is issue a show cause notice containing the charge and the facts in support of the charge together with the statements recorded in the preliminary enquiry and the finding of the preliminary enquiry and give an opportunity to the respondents to submit his explanation.....".

10. The learned counsel for Respondents submits that after fully understanding the implication of the said High Court judgment, the KVS has introduced a proper procedure on the directions of Vishaka Judgment. Hence, in the present case, the decision of the Disciplinary Authority was not taken merely on the basis of preliminary enquiry. Instead the KVS authorities, after receiving the report of the preliminary enquiry, duly constituted yet another committee and gave an opportunity to the applicant of being heard once again by way of Annexure-A/6. Even at the preliminary enquiry stage, a fact finding enquiry was conducted through a committee and the applicant was asked to furnish his comments on the complaints of the parents. The report of the fact finding committee was submitted to the Chairman, VMC, KV AFS Bidar as envisaged in Article 81(B) of Education Code vide letter dated 18-11-2008. The Commissioner, KVS being the competent authority ordered for a summary inquiry as envisaged in Article 81(B) of Education Code and only after the report of the summary enquiry, the Disciplinary Authority has imposed the punishment which he considered fit and proper. This was the very reason why the earlier OA in a similar case of sexual behaviour, viz., OA No. 756/2001was allowed. This aspect has been taken care of in the present matter.

11. As far as the gravity of the charges, the appreciation of evidence by the enquiry committee and the decision of the Disciplinary or Appellate Authority is concerned, they all have taken utmost care to give an opportunity to the applicant and have also considered such other aspects as would indicate the preponderance of sexual misbehaviour with the girl students. The contention of the applicant that there has been no complaint of any sexual harassment indulged by him in his past 20 years is not relevant, as it is widely understood that most of the victims of such a misbehaviour would not speak up about it and only occassionally someone would come up with the courage to complain.

12. We have gone through all the documents before us and considered the arguments of both the learned counsel. As far as the procedure is concerned, we cannot find any fault with the whole sequence of procedure, namely, the preliminary enquiry, appointment of enquiry committee, the findings and proper analysis by the members of the enquiry committee, show cause notice to the applicant by Disciplinary Authority, the well reasoned order passed by the Disciplinary Authority at Annexure-A/8 and the well reasoned order passed by the Appellate Authority at Annexure-A/12 too. As far as the quantum of punishment is concerned, it has been held by the Apex Court from time to time and more specifically in the case of Apparel Export Promotion Council Vs. A.K. Chopra (AIR 1999 SC 625) (which also dealt with sexual harassment) that in the judicial review, the Courts/Tribunals should not interfere with the administrative authority's decision about the quantum of punishment. Even on merits, we find no reason to interfere with the order of the Disciplinary Authority and the Appellate Authority.

13. Thus, the OA fails and is dismissed. No order as to costs.



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