R MANJUNATH SHETTY Vs. CATHOLIC BOARD OF EDUCATION

JUDGEMENT

(1.) I have heard the learned Advocates on both sides on merits. It is unnecessary for me to recount the facts of this case because the petitioner before me who at the relevant time was a school teacher is alleged to have been involved in recurring acts of molestation and misbehaviour with a 15 year old girl student. The institution in question is a very reputed educational institution in the area. The incident had very serious repercussions and undoubtedly, an enquiry was held and the verdict of the enquiry went against the petitioner. The management issued a show-cause notice to him as is required and after considering his reply, an order of dismissal followed. This order was the subject-matter of challenge before the Education Appellate Tribunal. The order passed by the Tribunal has been perused by me because the Tribunal has meticulously examined all the heads of objection put up which mainly concerns various procedural requirement in relation to the conduct of the disciplinary proceedings. The allegation was that there was a breach of the principles of natural justice and that effectively, the enquiry is vitiated. The Tribunal has carefully applied its mind to all these objections and has recorded the finding that there is no substantial or for that matter even minor breach of procedure at any level and that the order of dismissal is liable to be sustained. On the question of quantum of punishment, the Tribunal has taken the view that having regard to the views expressed by different Courts that this is not a case in which any interference was competent. It is against this order that the present revision has been preferred.

(2.) THE petitioner's learned Counsel has assailed the conduct of the enquiry on several grounds, all of which have already been considered, findings recorded and to my mind, none of these require to be interfered with. One additional aspect that was very strongly highlighted in the argument before me was that after the Inquiry Officer submitted his report, the management in the show-cause notice served on the petitioner indicated that the management has resolved to dismiss him from service and asked him to show cause as to why the punishment in question should not be awarded. The learned Counsel submitted that in this background the show-cause notice becomes not only redundant but meaningless because if the decision has been taken as is reflected from the use of the expression "it has been resolved" that irrespective of what the petitioner pointed out, that the decision having already been finalised that the whole purpose of issuing the show-cause notice becomes an empty exercise. His submission is that this stage of the disciplinary proceeding is a very important one because it is at this stage that it is wholly open to the delinquent employee to point out to the management, that no punishment be awarded in the alternative, to point out that even if a punishment is awarded that it should not be of a particular magnitude. His submission proceeds on the footing that if the highest punishment has already been chosen and a decision has been taken to this effect that nothing that is pointed out in the show-cause notice is going to change that situation and that consequently, this is a very violent breach of the principles of natural justice and that the order which followed gets vitiated in law. The respondent's learned Advocate submitted that this is really a magnification of the grievance because what he points out is that the nature of the incident and the findings of the Inquiry Officer are the two basic grounds on which the management is required to taken a decision as to whether to impose a punishment and secondly, as to what would be the punishment which befits the delinquent. His submission is that the requirement of the rules of natural justice would necessarily require that in the nature of the misconduct proceedings, the proposed punishment must be made known to the employee concerned so that the employee has an opportunity of representing against it. He contends that the use of the word 'resolve' does not mean that this is a final decision but it indicates that the body which manages the institution had made a decision and that it is a collective decision which is communicated. According to the learned Counsel, the service of the show-cause notice itself indicates that no final decision had been taken and that the decision was subject to whatever was to be pointed out.

(3.) UNDOUBTEDLY, the use of the word 'resolved' was not a very right expression because it is capable of being misconstrued or misunderstood but at the same time, one has to take a better view of the expression and if one does that what emerges is that the respondent's learned Advocate is right when he points out that if the incident was one of seriousness and if the punishment that could follow was severe that it was very necessary for the management to have confronted the employee with this so that he should be forewarned of the same and he could represent against it. In this background, I do not see how the show-cause notice in question could vitiate the enquiry and furthermore this Court needs to apply a slightly different test, namely, that assuming the objections were to be upheld, the order was to be set aside and a fresh show-cause notice were to be issued, in my considered view the result would not have been any different. That is the element which a Court would apply while dealing with a situation of this type. In this background, as far as the findings of the EAT is concerned I see no ground for interference except to a very limited extent on the aspect of the gravity of punishment which may require a minor modification.