Dismissed

Tomy P Joseph v. Union of India

Kerala HC16 Jun 2016OP (CAT)/165/2016

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed the petitioner's appeal against removal from service. The court upheld the validity of summary proceedings initiated for misconduct involving sexual contact by a teacher with a 10th-standard student. The petitioner's delay in approaching the court was cited as grounds for dismissal.

What did the court decide?

The Original Petition (OP) was dismissed on merits and on grounds of inordinate delay.

Tomy P Joseph Vs Union of India — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON &

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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THURSDAY, THE 16TH DAY OF JUNE 2016/26TH JYAISHTA, 1938

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OP (CAT).No. 165 of 2016 (Z)

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(AGAINST THE ORDER IN OA 491/2012 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 03-07-2015)

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PETITIONER:

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TOMY P. JOSEPH

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SON OF P.T.JOSEPH, EX POST GRADUATE TEACHER (ENGLISH), JAWAHAR NAVODAYA VIDYALAYA, CHITRADURGA (KARNATAKA), RESIDING AT BETHEL CHEERAMVELIL, BEHIND S.B.HIGH SCHOOL, CHANGANACHERRY, KOTTAYAM-686101.

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BY ADVS.SRI.MARTIN G.THOTTAN SRI.M.P.VARKEY

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RESPONDENT(S):

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UNION OF INDIA REPRESENTED BY THE CHAIRMAN, NAVODAYA VIDYALAYA SAMITI, A-28, KAILASH COLONY, NEW DELHI-110048.

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THE COMMISSIONER NAVODAYA VIDYALAYA SAMITI, A-28, KAILASH COLONY, NEW DELHI-110048. 3. THE DEPUTY COMMISSIONER NAVODAYA VIDYALAYA SAMITI, HYDERABAD REGION, 1-1-10/3, S.P. ROAD, SECUNDERABAD, ANDHRA PRADESH-500003.

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BY SRI.MILLU DANDAPANI

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THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 16-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP (CAT).No. 165 of 2016 (Z)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 TRUE COPY OF THE ORDER IN ORIGINAL APPLICATION 491 OF 2012 DATED 03-07-2015 PASSED BY THE CAT/ERNAKULAM BENCH. P2 TRUE COPY OF THE ORIGINAL APPLICATION 491 OF 2012 FILED BY THE PETITIONER BEFORE THE CAT/ERNAKULAM BENCH. P3 TRUE COPY OF THE REPLY STATEMENT IN OA 491 OF 2012 FILED BY THE RESPONDENTS BEFORE THE CAT/ERNAKULAM BENCH. P4 TRUE COPY OF THE MEMO ALONG WITH SUMMERY ENQUIRY PROCEEDINGS CONDUCTED BY THE RESPONDENTS. RESPONDENT(S)' EXHIBITS : NIL -----------------------

/TRUE COPY/

P.S. TO JUDGE

(CR)

P.R. RAMACHANDRA MENON &

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ANIL K. NARENDRAN, JJ.

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O.P.(CAT)No.165 OF 2016

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Dated this the 16^th June, 2016

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JUDGMENT

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P.R. Ramachandra Menon, J.

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This is a case where sexual advancement was made by the petitioner, while working as a Teacher, against a student who was pursuing her studies in the 10^th standard. The challenge is against the proceedings completed by the disciplinary authority ordering removal from the service invoking summary procedure as envisaged under Annexure A18 notification dated 20.12.1993, the confirmation made by the appellate authority and the interference declined by the CAT.

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The sequence of events as revealed from the proceedings

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and as put forth by the learned counsel for the petitioner is that, the petitioner was proceeded against in respect of the misconduct as above and he was suspended from the service way back in the year 2002. The charges levelled against him were enquired into under Rule 14 of the Central Civil Services (Classification

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Control and Appeal) Rules [CCS (CCA) Rules], which ultimately ended up in the removal from service. After filing an appeal before the Appellate Authority, the petitioner moved the CAT by filing O.A.No.322 of 2005, which was disposed of directing the appellate authority to consider the matter. Pursuant to the said verdict, the matter was considered by the appellate authority, who set aside the order of punishment, observing that copy of the enquiry report was not served to the charged official. Thereafter, copy of the enquiry report was served, objections were called for and the matter was re-considered, leading to Annexure A13 order removing the petitioner from service. This was also subjected to challenge by filing an appeal, wherein no order was passed, when the petitioner moved the Tribunal by way of O.A.No.373 of 2007. When the said O.A. was pending, the appellate authority observed that the disciplinary authority, who passed the order of removal, was part of the enquiring authority earlier and as such, the matter required to be reconsidered by constituting proper/adhoc disciplinary authority. In the course of further proceedings, the authorities concerned sought to pursue

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'summary proceedings' as envisaged under Annexure-A18, which was objected to by the petitioner. Admittedly, he did not participate in the summary enquiry under Annexure-A18 and after considering the available materials on record, the second respondent arrived at the guilt of the petitioner and removed him from the service as per Annexure-A20 order dated 04.10.2010. This was sought to be challenged by way of appeal, where interference was declined by the appellate authority, i.e., the first respondent, who confirmed the punishment as per Annexure-A23. This made the petitioner to approach the Tribunal by filing O.A.No.491 of 2012, wherein Ext.P1 order was passed by the Tribunal declining interference, which forms the subject matter of challenge in this Original petition.

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Heard the learned counsel for the petitioner at length.

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The learned counsel for the petitioner pointed out that

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the entire course and proceedings pursued by the concerned respondents and the verdict passed by the Tribunal are not at all correct or sustainable either in law or on facts. It is pointed out that as per the relevant rules, only one enquiry is contemplated

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and there cannot be any second enquiry or fresh enquiry. If at all any defect is there in the original enquiry, it is, of course, possible to proceed with further enquiry in terms of Rule 15(1) of the CCS (CCA) Rules. This being the position, there could not have been any recourse to 'summary trial' envisaged under Annexure- A18 Notification. Reliance is sought to be placed on the decision rendered by the Supreme Court in AIR 1971 SC 1447 ( K.R. Deb vs. The Collector of Central Excise, Shillon g). The learned counsel further submits that, even if Annexure-A18 Notification is made applicable, two conditions envisaged there are required to be satisfied- the Director has to form an opinion as to the circumstances under which regular enquiry could not be pursued or proceeded with and it is also necessary to record the reason in writing, as to the mitigating circumstances. It is without any regard to these aspects that the matter was finalised by imposing the punishment and as such, the same is liable to be interfered. Reference is also made to Rule 19 of the CCS (CCA)Rules, which permits the competent authority to have a summary course, if regular enquiry is not

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possible under the stipulated circumstances, which are totally absent in the present case and hence the challenge.

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On going through the contents of the materials forming part of the record, the insinuation made against the petitioner, which have been discussed by the disciplinary authority, appellate authority and also by the Tribunal, is of a very serious magnitude. Statements were given by the victim girl, students of the school and such others, which was subjected to meticulous analysis by the competent authority before arriving at the guilt. The circumstance under which the regular enquiry could not be taken to logical conclusion is discernible from the records forming part of the case and the same has been discussed by the Tribunal in Ext.P1 order with reference to the course and events. The enquiry conducted in terms of Rule 14 of the CCS (CCA) Rules, the negative tactics being pursued by the petitioner to get the proceedings protracted and the lack of co-operation from the part of the petitioner to prove his innocence, if he were actually innocent in connection with the proceedings have also been discussed in detail.

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O.P.(CAT)No.165 OF 2016

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Admittedly, the petitioner did not take part in the 'summary enquiry' envisaged under Annexure-A18, despite several adjournments given. Written submission was made by the petitioner, to the effect that he was not intending to participate in such proceedings as, according to him, such a course was not permissible. It is to be noted that, there was absolutely no challenge against Annexure-A18 notification at any point of time and the opportunity given to the petitioner pursuant to the enquiry under Annexure A-18 was never made use of. The submissions made by the learned counsel for the petitioner across the Bar, that having initially decided to pursue a regular enquiry under Rule 14, it is never possible for the Department to proceed with summary procedure, does not impress this Court at all. When two alternate courses are available, unless it is established that there is any statutory impediment to proceed with enquiry under Annexure-A18 (more so, when similar course is available even under CCS (CCA)Rules, as borne by Rule 19(ii) of the CCS (CCA) Rules), the petitioner cannot be heard to say that the authority is not justified in proceeding with the steps

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under Annexure A-18. This is more so, when Annexure A18 is not under challenge. The decision cited across the Bar and sought to be relied on before the Tribunal has been held as not applicable for the reasons stated as discernible from Ext.P1 itself. We find it correct and sustainable.

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That apart, we are of the view that the idea and understanding of the petitioner in this regard is thoroughly wrong and misconceived, in so far as such a situation had come up for consideration before the Apex Court and the same has been answered in favour of the Management and against the employee, as per the decision reported in 1997(2) SCC 534 (Avinash Nagra vs. Navodaya Vidyalaya Samiti & others) . Paragraph 10 of the said verdict, which highlights the role of a 'Teacher' who is to mould the character and conduct of a student and the higher esteem a Teacher is holding in the community/society have been explained, which is extracted below:

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“10. Mahatma Gandhi, the Father of the Nation has stated that “ a teacher cannot be without character. If he

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lacks it, he will be like salt without its savour. A teacher much 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 and 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 sunlit peaks”. Dr. S.Radhakrishnan has stated that “ we in our country look upon teacher as gurus or, as acharyas. An Acharya is one whose aachar 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. He who is able to remove 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

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Tyagis”.

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It is well settled that a person has to be melted before moulded. The process of proper melting takes place in the educational institutions; particularly at the school level. If the melting goes bad, no doubt, the mould will reflect the true nature of the person concerned. The circumstances, under which the regular enquiry could not be completed, the possible harassment that could be caused to the victim girl, the parents and other students/witnesses etc., have been discussed, as evident from Ext.P1 order passed by the Tribunal.

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For the aforesaid reasons, we find that the course pursued by the departmental authorities is perfectly within the four walls of law and is not assailable under any circumstance. So is the position, with regard to the verdict passed by the Tribunal affirming such action.

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That apart, it is also relevant to note that Ext.P1 order was passed by the Tribunal way back on 03.07.2015, i.e., almost one year ago. The petitioner has approached this Court by filing this Original Petition only by 14.06.2016. The only explanation

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for the said delay, as given in paragraph 3 of the Original Petition is that the petitioner was out of service for quite long and was having no source of regular income, which cannot be a reason at all, much less any satisfactory explanation. The petitioner was simply sleeping on arm chair without any regard to his rights and liberties, if at all any. The discretionary jurisdiction of this Court is not intended to be extended to such persons. We find support in this regard from the verdicts passed by the Supreme Court reported in AIR 1970 SC 470 (Rabindra Nath vs. Union of India ) and in (2014 AIR SC2 1142 = (2014)4 SCC 108)

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Chennai Metropolitan Water Supply and Sewerage Board

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and others vs. T.T. Murali Babu. The O.P. is liable to be dismissed on this ground as well.

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The necessity to curb the menace of sexual harassment in the work place, particularly in the context of International norms, Regulations and other relevant aspects, was considered by the Apex Court, which culminated in the celebrated decision in

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Vishaka and others vs. State of Rajasthan and others (AIR

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1997 SC 3011). The term 'sexual harassment' was defined by the

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Apex Court. A mechanism for dealing with the complaint was provided and all such other relevant aspects were mentioned, giving appropriate directions as contained in paragraph 16 of the said judgment. It was also made clear that the above directions would continue to govern the field, till appropriate legislation was made by the Government. The CCS (Conduct) Rules were amended by the Government in the year 1998 incorporating the instances of sexual harassment, as defined by the Supreme Court, by way of Rule 3C of the CCS (Conduct) Rules and thereafter, the manner in which it is to be dealt with was provided by amending the CCS(CCA)Rules, particularly by incorporating a 'proviso' to Rules 14(2) of the CCS (CCA) Rules. In fact, a proper legislation as directed by the Apex Court could be brought about, nearly 16 years thereafter, when the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act 14 of 2013) (w.e.f. 09.12.2013) was enacted. The observation made by the Apex Court and the purpose of the statute are more relevant and have to be applied with more rigor, when it comes to sexual harassment made by a

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Teacher, that too, against a student. The course and conduct pursued by the petitioner cannot but be deprecated in the strongest possible words.

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In the above circumstance, this Court does not find any tenable ground to call for interference. The O.P fails and the same is dismissed accordingly.

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P.R. RAMACHANDRA MENON, JUDGE

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ANIL K. NARENDRAN, JUDGE

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