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Form No. J.(2)

IN THE HIGH COURT AT CALCUTTA

Constitutional Writ Jurisdiction
Appellate Side

Present :
The Hon’ble Mr. Justice Ashim Kumar Banerjee
And
The Hon’ble Justice Prabhat Kumar Dey

W.P.C.T. No.351 of 2007

Debashish Debnath
-VS-
Union of India and Others

And

W.P.C.T. No.93 of 2011

Goutam Kumar Sahoo

-VS-
Union of India & Ors.

For the Petitioner : Mr. Kalyan Bandyopadhyay

in WPCT 351 of 2007 Mr. Subhabrata Dutta
Mr. Sirsanya Bandopadhyay

For the Petitioner : Mr. Negive Ahmed

in WPCT 93 of 2011 Mr. Surya Maity

Additional Solicitor General : Mr. Faruk Razzak

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For the respondents in : Mr. Paresh Chandra Maity

in WPCT 351 of 2007

For the respondents in : Mr. Kaushik Ray

in WPCT 93 of 2011

Heard on : June 6, 8, 15 & 16 2011.

Judgment on : June 23, 2011.

ASHIM KUMAR BANERJEE.J:

CONTROVERSY
Both these writ petitions pertain to an identical controversy and identical

question of law. These two matters were heard analogously and are being

disposed of by this common judgment. In these writ petitions the petitioners

were teachers of Kendriya Vidyalaya Sangathan and Jawhar Navodaya

Vidyalaya respectively, both controlled by the Ministry of Human Resources

Development, Government of India. Navodaya Vidyalaya was run by a

society called Navodaya Vidyalaya Samity which is mainly residential co-

education school whereas Kendriya Vidyalaya was run by Kendriya Vidyalaya

Sangathan, another society running day boarding school. They were guided

almost the identical rules and were controlled by the Ministry of Human
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Resource Development, Government of India. The petitioners were charged

with the allegation of immoral behavior and illicit relationship maintained

with the girl students. They were separately dealt with departmentally on a

summary trial and ultimately suffered the order of dismissal. In both the

cases they approached the Tribunal unsuccessfully. Being aggrieved, they

filed the above two petitions before us which were heard on the above

mentioned dates. Let us first briefly narrate the facts.

FACTS

WPCT 351 OF 2007

In the year 1985 the petitioner was appointed as Physical Education teacher

in Kendria Vidyalaya, Binaguri, West Bengal. In April 2002 he was posted in

Kendria Vidyalaya, Gangtok. While he was working in the said school the

authority asked him to appear before a preliminary enquiry Board on

February 7, 2004 on the alleged charge of immoral sexual behavior extended

to one student of class eleven namely Shamolika (name changed). The

preliminary enquiry was held on February 25, 2004. As per the enquiry

report the charge was proved before the Enquiry Committee. The teachers

and the fellow students including the victim appeared and gave appropriate

version on the alleged charge. To sum up the evidence, it would appear that
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the petitioner was married and was living with his family in the residential

quarter. He proposed to Shamolika to marry her. He gave love letter as well

as gifted chain which Shamolika returned to his wife. One of the students

also alleged that the couple had been to Binaguri and stayed together in a

hotel. However, there was no confirmation from any other corner on that

score. The petitioner also signed a letter of confession admitting the

relationship which he later on disputed by saying that it was procured by

force. The victim also admitted that she committed gross mistake by not

informing the family members and the teachers in due time. She contended

that the concerned teacher blackmailed her that if she would not agree with

his proposal he would commit suicide.

Considering the preliminary report the authoity issued a chargesheet on April

8, 2004. The delinquent replied to the same vide letter dated April 16, 2004.

After considering the Enquiry Report and the explanation given by the

concerned teacher on the Enquiry Report the Commissioner issued the

chargesheet on April 7, 2004 and asked him to reply within fifteen days by

showing cause why he should not be terminated under Article 81(b) of the

Education Code for Kendriya Vidyalaya. Ultimately, the authority vide order

dated April 30/May 5, 2004 terminated his service. Being aggrieved, the
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Tribunal vide order dated July 13, 2005 asked the appellate authority to

dispose of his appeal within this stipulated period. Accordingly, the appellate

authority heard the matter and dismissed the appeal vide reasoned order

dated January 27, 2006. Being aggrieved, the petitioner approached the

Tribunal for the second time. The Tribunal, upon considering the matter,

held that the authority did not commit any illegality by terminating his

service under Article 81(b) of the Education Code in the facts and

circumstances involved therein. In course of hearing the learned counsel for

the Administration handed over the entire records and thereafter submitted

xerox copy of the relevant extracts wherefrom we find that the authority

initially conducted a preliminary enquiry which was followed by a regular

summary enquiry after affording opportunity to the delinquent at every stage

to defend himself and the proceeding ended in an order of termination. We

have also considered the summary report which concluded that the

delinquent had committed gross mistake by establishing illicit relationship

with Shamolika. He also conceded his mistake in his letter dated February 9,

2004. He identified his signature during enquiry. His contention that the

confession was procured, was not credible and motivated. The summary

enquiry held him guilty of the charge.

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W.P.C.T. 93 OF 2011

In the instant case the petitioner was a teacher (TGT, Science) engaged in

Navodaya Vidyalaya Samity. In January 2007 while he was in Navodaya

Vidyalaya R.C. Ghat he suffered an order of suspension on the allegation of

immoral sexual behaviour indulging in sexual harassment of a minor girl of

class nine proposing her to marry her. Pertinent to note, the girl Kamolika

(name changed) was student of class nine. She stood first in the class. The

petitioner pastured her to agree to his proposal to marry him although the

petitioner was married and living with his wife who was also a teacher in the

concerned school. Enquiry Report revealed that the mother of Kamolika

lodged a complaint against the petitioner that he had proposed her daughter

to marry and offered her a chain, love letter and a greetings card. The teacher

was unnecessarily disturbing her which resulted disturbance in her study.

The music teacher who was the House Mistress warden in the girls’ hostel

corroborated the complaint. Another teacher R. Palit also supported the

music teacher. The Enquiry Officer also examined the fellow students who

also deposed in the affirmative. The Enquiry Officer concluded that there

was no reason to disbelieve the statement of the victim girl and the other

witnesses and the explanation offered by the concerned teacher and his wife

was meritless and was made with a view to avoid the disciplinary proceeding.
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Being satisfied with the result of the enquiry he was placed under suspension

and was asked to join another school and was allowed to draw subsistence

allowance vide order February 22, 2007. However, he was given opportunity

to defend himself in the proceeding and on the enquiry dates he was relieved

from his place of posting so that he could attend the enquiry. The authority

thereafter directed a summary trial to be conducted on March 21, 2007 and

asked the petitioner to attend counseling programme. In July 2007 the order

of suspension was revoked. He was transferred to Navodaya School, Howrah

where he joined on August 14, 2007. In April 22, 2008 he received the charge

sheet on the above mentioned charges asking him to attend the regular

enquiry disciplinary proceeding. Accordingly he appeared and submitted his

written statement where he denied all the charges. The petitioner

approached the Tribunal by filing O.A. No.13269 of 2008. The Tribunal

disposed of the said application vide order dated April 2, 2009. The Tribunal

did not pass any interim order and directed the application to be heard on

affidavit. The proceeding continued which culminated in the order dated

October 27, 2010 wherein he was removed from service as appears from page

122 and 123 of the petition. The Tribunal application came up for hearing on

February 22, 2001. The Tribunal considered the issue and ultimately

dismissed the said application by observing that the applicant failed to

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establish his case for quashing the disciplinary proceeding. Being aggrieved,

the petitioner filed the instant application which was heard by us on the

above mentioned dates.

OUR VIEW ON MAINTAINABILITY

Before we consider the factual matrix involved in both the cases we would be

failing in our duty if we do not consider the decision of another Division

Bench in the case of Kendriya Vidyalaya Sangathan &

Another –VS- Prem Narayan Pandey & Others (W.P.C.T. 310

of 2008) touching the maintainability of these two petitions. Our attention

was drawn to the Division Bench decision in the said case dated April 29,

2011 wherein the Division Bench observed that since the Navodaya Vidyalaya

Samity and/or the Kendriya Vidyalaya Sangathan are “society” within the

meaning of Society Registration Act it could not be said to be a limb of the

Government or be called as “other authority” within the meaning of under

Article 323A of the Constitution.

We have carefully perused the said decision. We have heard Mr. Kalyan

Bandyopadhya for the petitioner in W.P.C.T. No.93 of 2011, Mr. Negive

Ahmed for the petitioner in W.P.C.T. 351 of 2007, Mr. Paresh Chandra Maity,
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learned counsel appearing for the respondent, Navodaya Vidyalaya Society

and Mr. Kousik Roy for Kendriya Vidyalaya Sangathan. We have also heard

the learned Additional Solicitor General on the issue. All of them

categorically submitted that the decision of the Division Bench referred to

above, was contrary to the well-settled principle of law as decided by the Apex

Court. They contended that none of the parties in the case of Prem Narayan

Pandey and Others did raise such issue before Their Lordships. It was

nobody’s contention that the said school would not come under the purview

of Article 323A of the Constitution of India to be dealt with by the Tribunal

under Section 19 of the Administrative Tribunal Act. Learned counsel for the

parties before us were unanimously of the opinion that the concerned school

would squarely come within the purview of “other authority” as prescribed in

Article 323 A of the Constitution and, thus, would come within the

jurisdiction of Administrative Tribunal under Section 19 of the said Act.

However, since such issue was raised before us, it is our duty to dispel our

doubt as to the applicability of the said decision, before we go into the factual

matrix.

Two decisions of the Apex Court being relevant herein, are relied upon :-
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a)2002 Volume-V Supreme Court Cases Page-111

(Pradeep Kumar Biswas –VS- Indian Institute of

Chemical Biology and Others)

b)2002 Volume-IV Supreme Court Cases Page-145

(Kendriya Vidyalaya Sangathan and Another –VS-

Subhas Sharma)

Those two decisions were duly considered by Their Lordships in the decision

in the case of Prem Kumar Dubey. Their Lordships held that those two

decisions did not consider the real issue. In page 55 of the said decision their

Lordships considered the seven Judges Bench decision in the case of Pradeep

Kumar Biswas (Supra). Considering the said decision the Division Bench

observed –

“with due respect, the question as now being faced by this Court to have an

answer namely “in absence of incorporation of the word “society” under

Article 323A specifically, but incorporation of the word “Corporation

specifically”, in the said provision by constitutional amendment having

regard to Article 368 of the Constitution of India, whether Parliament can in

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exercise of power under Article 323A, may set up the Administrative

Tribunal to decide the service dispute of “society” by amending Section 14 of

the Administrative Tribunal Act, 1985 and in terms of notification dated 17th

December, 1998 being JSR 748(d) can notify Kendriya Vidyalaya

Sangathan within the Administrative Tribunal umbrella, was not issue in

Pradeep Kumar Biswas (supra) and this point was not decided therein. In

that case, issue was different to determine whether any society registered

under the Society Registration Act could be considered as a “State” under

Article 12 of the Constitution of India for the purpose of adjudication of

disputes relating to and touching the constitutional provision of Part III &

Part IV of the Constitution of India and in that angle the Court answered the

issue as framed, in paragraph 4 of the said report, namely “whether CSIR a

State within the meaning of Article 12 o the Constitution of India”. The

question before the said Bench from paragraph 4 of report, is quoted below

:-

“The questions therefore before us are – is CSIR a State within the

meaning of Article 12 of the Constitution and if it is, should this Court

reverse a decision which has stood for over a quarter of a century.”

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It appears from the concluding part of paragraph 66 of said report that

conflict as arose in view of decision of Subhojit Tewari case reported in

(1975) 1 SCC 485, was resolved by overruling the same and holding that

CSIR, though registered under the Society Registration Act, but, having

regard to its management, financial aid, and control in the angle of

financial, functional and administrative domination or control of the

Government, will lead an answer that CSIR a State under Article 12 of the

Constitution of India. In Pradip Kumar Biswas (Supra) there was no

challenge of said Government notification and no issue raised as already

discussed that in Article 323A when the word “society” has not been

mentioned, whether it could be placed within the umbrella of Administrative

Tribunals, by exercising the constitutional powers under Article 323A, for

setting up such tribunals to adjudicate service disputes of employee of such

type of society.”

The Division Bench also considered the other decision in the case of Subhas

Sharma (Supra) :

“Learned Additional Solicitor General relied the judgement passed in the

case Kendriya Vidyalaya Sangathan & Anr. vs. Subhash Sharma reported
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in (2002) 4 SCC 145 to submit that the Apex Court has dealt with the issue

that service dispute of Kendriya Vidyalaya Sangathan could be adjudicated

by Administrative Tribunals. On reading the said judgement, it appears

that in that judgement the issue involved was whether Central

Administrative Tribunal had exclusive jurisdiction, as Court of first

instance, in relation to service matter concerning employees of Kendriya

Vidyalaya Sangathan, posted in State of Jammu & Kashmir, in the angle of

jurisdictional power of High court under Article 226/227 of the Constitution

of India read with corresponding provision of Section 103/104 of the

Constitution of Jammu & Kashmir, which has not excluded the jurisdiction

of the writ Court to deal with that issue. In that case also, with due respect,

the apex Court was not addressed to have an answer of the point which is

the subject matter of the present case as discussed above, namely, power of

the Parliament under Article 323A to set up the Administrative Tribunal in

respect of service disputes of any “Society” registered under the said Society

Registration Act and controlled by the Government.”

The above decisions squarely covered the issue and such decisions are

binding upon us. In the case of Subhas Sharma (Supra), the Apex Court

noted the fact that vide notification dated December 17, 1998 the Central
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Government clarified that the Kendriya Vidyalaya would be included in the

notification as item no.34 to come within the ambit of Central Administrative

Tribunal. Such notification was admittedly not under challenge. Such

notification was held to be valid by the Apex Court in the case of Subhas

Sharma (Supra). Even if we accept Their Lordships’ view that the decision in

the case of Pradeep Kumar Biswas (Supra) would not be applicable (although

we respectfully disagree) the decision in the case of Subhas Sharma (Supra)

did not leave any scope for the High Court to consider such issue again as the

issue was res integra after the said decision in the case of Subhas Sharma

(Supra) wherein the decision of the Central Government to include Kendriya

Vidyalaya within the ambit of Central Administrative Tribunal was held to be

valid. With deepest regard we have for Their Lordships, we unhesitatingly

observe that the issue was settled at the Apex Court level in the case of

Subhas Sharma (Supra). Hence, we need not refer it to a larger bench. We

hold that the Tribunal was within their right to entertain both the

applications and the orders passed by the Tribunal could not be said to be

nonest in the eye of law on such ground.

OUR VIEW ON MERIT

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Let us now consider the issue on merit. Article 81(b) dealt with the issue of

summary trial of any staff of Kendriya Vidyalaya and Navodaya Vidyalaya as

the case may be, involving sexual offence or exhibition of immoral sexual

behaviour towards any student by any teacher. The extant rule is quoted

below :-

“Where 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 behaviour towards

any student he ca terminate the services of that employee by giving him one

month’s or three month’s 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 despensed with provided that

the Commissioner is of the opinion that it is not expedient to hold regular

enquiry on account of embarrassment to 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

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and he shall keep the Chairman of the Sangathan informed of the

circumstances leading to such termination of services.”

In both these cases the facts would reveal that the concerned teachers were

involved in the offence of establishing illicit relationship with the student. In

the case of Shamolika, she was student of class eleven whereas the delinquent

was a married teacher having his family residing in the quarter. It was not

expected of a teacher to express his romantic feeling to one of his students

studying in the same school and then forcing her to agree to his proposal.

The facts would reveal, he offered gift and passed on love letters. When the

student declined he threatened her that he would commit suicide. By such

emotional blackmail the delinquent tried to win over the girl to satisfy his

desire.

In the case of Kamolika, she was the best student in class nine whereas the

concerned teacher was married having his wife, also a teacher teaching in the

same school. It was also not expected of him to express his emotional feeling

towards her.
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In the case of Shamolika she did not contemporaneously complain either to

the teachers or to her parents. However, Kamolika made complaint not only

to the teachers but also to her parents who, in turn, lodged complaint with

the Principal. Hence, in both the cases it was a one sided affair. Expression

of emotional feeling is natural. However it is not expected that a married

teacher would pasture his student being a minor girl and emotionally

blackmail her and force her to agree to his indecent proposal. Such crime is

well covered by Article 81(b) quoted above.

Mr. Maity relied upon three Apex Court decisions in the case of Kendriyala

Vidyalaya and Navodaya Vidyalaya.

In the case of Avinash Nagra _VS- Navodaya Vidyalaya

Samiti and Others reported in 1997 Volume-II Supreme

Court Cases Page-534, the Apex Court considered a case of the like

nature where the concerned teacher was making his sexual advances towards

a girl student. Despite being warned, he did not correct himself and mend his

conduct. He rushed to the girls’ hostel at the odd hours and persuaded the

student to come out of her room by supplying misleading information to the

girl through the guard. When the student saw him she rushed back to her
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room and locked herself inside. The concerned teacher knocked the door.

When her room mates told him that she was asleep he rebuked them.

Considering such fact the Apex Court refused to interfere with the order of

termination by observing that the conduct of the appellant was unbecoming

of a teacher.

In the case of Director, Navodaya Vidyalaya Samiti and

Other –VS- Babban Prasad Yadav and Another reported in

2004 Volume-XIII Supreme Court Cases Page-568, the Apex

Court considered an identical situation when the concerned teacher indulged

in immoral conduct by writing undesirable letters and making remarks to one

of his students. The order of termination was held to be valid.

In the case of Commissioner, K.V. Sangathan and Others –

VS- Rathin Pal SLP (C) No.4627/2008, the Apex Court took the

identical view. The Apex Court also considered the invocation of Article 81(b)

of the Education Code and held it to be valid in the circumstances discussed

therein.
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Mr. Negive Ahmed appearing in WPST 351 of 2007 tried to contend before us

that there was anomaly in the statement made by the witnesses. He also tried

to contend that since Shamolika was made the captain of the Kabadi Team by

the concerned teacher the other fellow students were zealous and took a

revenge. He also tried to contend that one of the girl students deposed that

she would be happy if Shamolika was driven out of the school. She was

however, silent about the delinquent. We do not find any relevance. The

charge of immoral sexual conduct was proved to the hilt as discussed above.

The delinquent was given adequate opportunity to defend himself in the said

proceeding. Hence, the order of dismissal could not be faulted.

In the other case Mr. Dutta, learned counsel appearing for the petitioner tried

to contend that he was not afforded adequate opportunity to defend himself

in the said proceeding. We are unable to appreciate his argument while

examining the records annexed to the petition. Significant to note, Mr. Dutta

did not offer any explanation on the factual matrix to show that the order of

punishment was not sustainable.

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In both the cases we are amply convinced that the Tribunal very rightly

declined to interfere with the order of termination. We do not have any scope

to disagree with such well considered decisions.

The applications fail and are hereby dismissed.

There would be no order as to costs.

Urgent xerox photostat copy will be given to the parties, if applied for.

Prabhat Kumar Dey, J:

I agree.

[ASHIM KUMAR BANERJEE,J.]

[PRABHAT KUMAR DEY,J.]