Full Judgment Text
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PETITIONER:
AVINASH NAGRA
Vs.
RESPONDENT:
NAVODAYA VIDYALAYA SAMITI ETC.
DATE OF JUDGMENT: 30/09/1996
BENCH:
K. RAMASWAMY, G.B.PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
We have heard learned counsel on both sides.
This appeal by special leave arises from the order of
the High Court of Himachal Pradesh made on January 9, 1996
in Writ Petition No. 56/96.
The appellant was appointed as a post-graduate teacher
on January 28, 1994. Initially he worked at Patiala but was
transferred to Kinnaur. The Respondent-institution is a co-
educational institution. The appellant’s service was
terminated in terms of his letter of appointment giving
salary in lieu of notice on the ground of his improper
conduct with a girl student. When he filed writ petition,
the High Court, after consideration of the record, dismissed
the same. When the petition had come up for admission and
the counsel insisted upon an enquiry to be conducted against
the alleged misconduct, by Order dated March 13, 1996, we
directed the management to issue show cause notice to the
petitioner, conduct an enquiry and submit the report within
a specified time which was subsequently extended. In
furtherance thereof, show cause notice dated May 2, 1996,
together with the statements of the girl, her room-mates and
the attender, Bharat Singh, were supplied to the petitioner.
After receipt of the explanation submitted by the appellant
and consideration of the entire record, they have drawn up a
report and submitted the same to this Court with the finding
that the appellant is guilty of moral turpitude involving
exhibition of immoral sexual behavior towards a girl student
in Jawahar Navodaya Vidyalaya, Kinnaur. On consideration of
the report and the record we have heard the counsel on both
sides.
It is contended for the appellant that the charges
levelled against him impinge upon his character, conduct and
career. Therefore, he should have been given an opportunity
to cross-examine the girl student and her colleagues who
have given their statements and to had himself examined. The
procedure adopted, therefore, is in violation of the settled
legal principles and principle of audi alterem partem. It is
accordingly vitiated by manifest error of law warranting
interference. Shri Arun Kumar Sinha, learned counsel for the
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appellant, contended that the matter requires remittance to
the disciplinary authority for conducting de novo enquiry
and give an opportunity to establish appellant’s innocence.
It is also contended that since the appellant had filed the
writ petition initially which was dismissed as withdrawn,
the second writ petition cannot be dismissed on the
principle of constructive res judicata. The view of the High
Court, therefore, was vitiated by serious errors of law. The
learned counsel for the respondents resisted the contention.
The first question that arises for consideration is:
whether the dismissal of the appellant in terms of his
letter of appointment is vitiated by any error of law and
whether he is entitled to a full-fledged enquiry and
opportunity to cross-examine the girl students who have gave
the statements against the appellant? The second question
is: whether the High Court was right in dismissing the writ
petition under the impugned order dated January 9, 1996?
Indisputably, the provisions of C.C.S. (C.C.O.) Rules, 1965
of the Government of India would be applicable to the
employees of Navodaya Vidyalaya. The respondent is running
nation-wide co-educational specialized and prestigious
schools in which 1/3rd of the students are girls. With a
view to ensure safety and security to the girl students, to
protect their modesty and prevent their unnecessary exposer
at an enquiry in relation to the conduct of a teacher
resulting in sexual harassment of the girl student etc.
involving misconduct or moral turpitude,
resolutionprescribing special summary procedure was proposed
and published by notification dated December 23, 1993, after
due approval of the Executives of the respondent-Samiti. The
Minister of Human Resources and Development, Government of
India is its Chairman. The notification postulates to
dispense with regular enquiry under the Rules. In the case
of a temporary employee whose integrity and conduct is
doubtful but difficult to prove with sufficient documentary
evidence to establish the charge and whose retention in
service would be prejudicial to the interest of the
institution or whose grave misconduct and the enquiry under
the Rules would be likely to result in embarrassment to the
class of employees or is likely to endanger the reputation
of the institution, the appointing authority, for the
reasons to be recorded in the file, may terminate his
services in terms of the letter of appointment. The order of
termination need not contain any reasons but the appointing
authority has to obtain prior approval of the Deputy
Director. Similarly, when the Director is satisfied, after
summary inquiry, that there was a prima facie guilt of moral
turpitude involving sexual harassment or exhibition of
immoral behaviors towards any girl student, under clause (b)
of the above notification, the Director "can terminate the
services of that employee by giving him one month’s or three
months’ pay and allowances in lieu thereof, depending upon
whether the guilty employee is temporary or permanent in the
services of the Samiti. In such cases, procedure prescribed
for holding enquiry for imposing major penalty in accordance
with the Rules as applicable to the employees of the
Respondent, shall be dispensed with provided that the
Director is of the opinion that it is not expendient to hold
regular enquiry on account of serious embarrassment to the
student or his guardians or such other practical
difficulties. The Director 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 Samiti
informed of the circumstances leading to such termination of
services. It would thus be seen that in a given situation,
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instead of adopting the regular procedure under the Rules to
terminate the services of an employee, the notification
prescribes the procedure to dispense with such enquiry,
subject to the conditions mentioned above. The question is:
whether the order terminating the services of the appellant
in terms of his appointment letter is in violation of the
Rules or the principles of natural justice? Before answering
the question, it is necessary to consider the need for the
education and the place of the teacher in that behalf.
Article 45 of the Constitution enjoins that State to
endeavour to provide free and compulsory education to all
children, till they complete the age of 14 years. This Court
has held that right to education is a Fundamental Right and
the State is required to organise education through its
agencies or private institutions in accordance with the law
and the regulations or the scheme. As laid down by this
Court, it is the duty of the State to provide compulsory
primary education freely; secondary education and the
university education according to the appropriate statutes
and the schemes. The Union of India had adopted the Navodaya
Vidyalaya Scheme to impart discipline and higher learning up
to the stage of secondary education. Article 51A in Chapter
IVA of the Fundamental Duties envisages that it shall be the
duty of every citizen of India to abide by the Constitution
and respect its ideals and institutions, the National Flag
and the National Anthem. The citizen should cherish and
follow the noble ideals which inspired our national struggle
for freedom; to uphold and protect the sovereignty, unity
and integrity of India. The citizens should, as a duty,
defend the country and render national service when called
upon to du so; to promote harmony and the spirit of common
brotherhood amongst all the people of India transcending
religious, linguistic and regional or sectional diversities.
The citizen, as a duty, should renounce practices derogatory
to the dignity of women; value and preserve the rich
heritage of our composite culture; protect and improve the
natural environment including forests, lakes, rivers and
wild life, and to have compass in for living creatures.
Every citizen should develop scientific temper, humanism and
the spirit of inquiry and reform; safeguard public property
and abjure violence; strive towards excellence in all
spheres of individual and collective activity so that the
nation constantly rises to higher levels of endeavour and
achievement. These ideals should be nurtured and imbibed by
imparting to the receptive minds of the children from their
childhood. In Maharashtra State Board of Secondary and
Higher Secondary Education v. K.S. Ganghi and Ors. [(1991) 2
SCC 7161, this Court, while holding that right to education
is a fundamental right, had held the native endowments of
men are by no means equial. Education means a process which
provides for intellectual, moral and physical development of
a child for good character formation; mobility to social
status; an opportunity to scale equality and a powerful
instrument to bring about social change including necessary
awakening among the people. Education promotes intellecutal,
moral and social democracy. Education lays foundation of
good citizenship and is a principal instrument to awaken the
child to intellectual and cultural pursuits and values in
preparing the child for later professional training and
helps him to adjust to the new environment. Education,
therefore, should be co-related to the social, political or
economic needs of our developing nation fostering secular
values, breaking the barriers of casteism, linguism,
religious bigotry and should act as an instrument of social
change. Education kindles its flames for pursuit of
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excellence, enables and enobles the young mind to sharpen
his or her intellect more with reasoning than blind faith to
reach intellectual heights and inculcate in him or her to
strive for social equality and dignity of person.
In "Human Values and Education" edited by S.P. Ruhela
under the article on "The Problem of Values" by P.N. Mathur,
it is stated that the spiritual values taught in education,
act as the guiding starts providing motive force behind his
thought, emotion and action; the value should be moral and
spiritual in socio-cultural and spiritual life of man has to
be such as brings peace, progress and welfare of both, the
individual and the society. The talk of scientific temper,
egalitariansim, freedom, social justice and secularism will
be fruitless unless these constitutional values are imbued
with spiritual and moral values. The need for religious,
moral and spiritual education, as a part of educational
curriculam, being taught in Sathya Sai Educational
Institutions and its utility to the social regeneration of
falling standard of moral and social conduct, was re-
emphasised in those articles published in book form on the
60th Birthday of Shri Sathya Sai Baba. In the foreword to
the said book, Shri Justice V. Bala Krishna Eradi, a former
Judge of this Court, has emphasised that the rich cultural
and spiritual heritages we have endowed, is being neglected
after independence, denying to the youth of this country the
opportunity to imbibe moral, cultural and spiritual values
that form part of our heritage. He emphasised that in value
oriented education, ethical values help in character
building and develop discipline in students; cultural values
enable the students to transcend the bounds of narrow
sectarianism and develop equal respect for all faiths.
Similarly spiritual values open the vision of a student to
‘one spirit’ dwelling in all and unite him with the whole
mankind as one family. He, therefore, emphasised that ti is
the duty of every citizen interested in the future of the
country and in the preservation of our great cultural
heritage, to extend cooperation for successful
implementation of the programme of value-oriented education
being imparted by Sri Sathya Sai Educational Institutions.
In "the Social and Political Thought of Dr. S.
Radhakrishnan" by Clarissa Rodrigues, at page 120, it has
been stated that education helps to improve the social
order. An educated man has an open mind, a broad outlook, is
willing to reconsider issues and make his own decisions. He
is liberated from the tutelage to outmoded notions, to
oppressive institutions and is always willing to learn from
others and change whenever it is necessary. On the necessity
of education, it is stated that the view of Dr.
Radhakrishnan was that the education in meant to enable
individuals to tackle the myriad problems of society (such
as ignorance, disease, poverty and so on) and to cope with
the accelerated pace of change in several spheres (such as
agriculture, industry, medicine, transport, communication)
which is a characteristic feature so society today.
According to Dr. Radhakrishnan, education from the
individual point of view will be incomplete, if it does not
initiate the child to the supreme values of love, truth,
goodness and beauty and fill him with a sense of purpose or
else he suffers from merged, pusillanimity, anxiety and
defeatism. Education, therefore, should not only train the
intellect, promote technical skill but also develop a
person’s aesthetic abilities and especially moral and
spiritual values. This is in accordance with the Upanishadic
view that we should aim at the play of life (pranaraman),
the satisfaction of mind (manarandam) and the fullness of
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tranquillity (santisamdharm). On social aims of education,
according to Dr. Radhakirshnan, man must also realise that
in a society where there is social injustice, gross
inequality and lack of fraternity, individual liberty cannot
be preserved. It must also be borne in mind that individual
freedom entails social responsibility. Education, therefore,
transforms the social order by promoting a healthy
nationalism and the spirit of internationalism.
On the functions of a teacher, at page 133, according
to Dr. Radhakrishnan, the success of the educational process
depends considerably on the teacher, for it is the teacher
who has to implant aims, and to build the character of the
students. According to Laski, at bottom of the education,
the quality of a university is always in direct proportion
to the quality of its teacher. A good teacher is one who
knows his subject, is enthusiastic about it and one who
never ceases to learn. Communication with the students and
sense of commitment to his work are necessary. A good
teacher, therefore, according to Dr. Radhakrishnan, is one
was is objective, just, humble and is open to correction.
According to Whitehead the teacher must be self-confident
learned man. The teacher, therefore, is primary functionary
to transmit the intellectual and ethical value to the young.
He should encourage the attitude of free enquiry and
rational reflections. The teacher should try to remove the
leaden weights of pride and prejudice, passion and desire
which are likely to cloud a student’s vision. the devoted
teacher is not only concerned with the child’s intellectual
development but also has the obligation to attend to his
moral, emotional and social growth as well.
Mahatma Gandhiji, the Father of the Nation has stated
that "a teacher cannot be without character. If he lacks it,
he will be like salt without its savour. A teacher must
touch the hearts of his students. Boys imbibe more from the
teacher’s own life than they do from books. If teachers
impart all the knowledge in the world to their students but
do not inculcate truth ad purity amongst them, they will
have betrayed them." Shri Aurobindo has stated that "it is
the teacher’s province to hold aloft the torch, to insist at
all times and at all places that this nation of ours was
founded on idealism and that whatever may be the prevailing
tendencies of the times, our children shall learn to live
among the sun-lit peaks." Dr. S. Radhakrishanan has stated
that "we in our country look upon teacher as gurus or, as
acharyas. An Acharya is one whose achar or conduct is
exemplary. He must be an example of Sadachar or good
conduct. He must inspire the pupils who are entrusted to his
care with love of virtue and goodness. The ideal of a true
teacher is andhakaraniridhata gurur itya bhidhiyate.
Andhakar is not merely intellectual ignorance, but is also
spiritual blindness. He who is able to remove that kind of
spiritual blindness is called a guru. Are we deserving the
noble appellation of an acharya or a guru?" Swami
Vivekananda had stated that "the student should live from
his very boyhood with one whose character is a blazing fire
and should have before him a living example of the highest
teaching. In our country, the imparting of knowledge has
always been through men of renunciation. The charge of
imparting knowledge should again fall upon the shoulder of
Tyagis."
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
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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.
It is axiomatic that percentage of education among
girls, even after independence, is fatham 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 sendign 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
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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-fleged 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 sen 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.
The High Court also was right in its conclusion that
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the second writ petition is not maintainable as the
principle of constructive res judicata could apply. He filed
the writ petition in first instance but withdrew the same
without permission of the Court with liberty to file the
second writ petition which was dismissed. Therefore, the
second writ petition is not maintainable as held by the High
Court is applying the correct principle of law. Thus
considered we find no merit in the appeal for interference.
The appeal is accordingly dismissed. No costs.