MOSES PACKIAMONY Vs. UNION OF INDIA

JUDGEMENT

(1.) This original petition is filed by the applicant in OA No.80/2015 challenging order dated 8/3/2017 of the Central Administrative Tribunal, Ernakulam Bench. The petitioner filed the Original Application challenging the disciplinary action taken against him by the management of Navodaya Vidyalaya Samiti. The petitioner started his service in the Navodaya Vidyalaya Samiti as a Physical Education teacher since 25/2/1993. While working at Jawahar Navodaya Vidyalaya, a complaint came to be filed against him alleging immoral sexual behaviour towards a girl student studying in the 11th Standard. Disciplinary authority conducted enquiry and by order dated 5/11/2013, he was terminated from service. He preferred an appeal, which also came to be rejected. Petitioner therefore filed OA No.80/2015 before the Central Administrative Tribunal inter alia contending that there was procedural irregularity in conducting the enquiry, that he was not supplied with any of the complaint, documents or the statement of the victim or the witnesses, that the findings in the enquiry was not communicated to him and on account of which, there is violation of principles of natural justice.

(2.) The Tribunal however rejected the plea of the petitioner and sustained the order passed by the disciplinary authority. While impugning the aforesaid order, learned Senior Counsel Sri.K.Gopalakrishna Kurup submits that the factual aspects involved in the case would disclose that there is clear violation of principles of natural justice. Learned counsel points out that the applicant was suspended from service on 4/1/2013 pending disciplinary proceedings. He submitted a representation dated 29/1/2013 as against the order of suspension. He stated that the allegations were not true. He received the communication dated 26/2/2013 stating that a Committee has been constituted to conduct a summary trial in terms of the Samiti's notification dated 20/12/1993. The applicant appeared before the Committee and stated that he is innocent of the allegations levelled against him. Later, his period of suspension was extended. However, without anything further, he was served with an order of termination dated 31/10/2013 (Annexure A7), which was followed by the communication dated 5/11/2013 (Annexure A8) issued by the Principal of the School. Learned counsel submits that a preliminary enquiry was conducted by the Principal on 13/10/2012 and the victim and a housemistress are seen to have been examined. A show cause notice had been issued to him on 17/10/2012 for which he had given a reply on 19/10/2012. Without issuing any charge memo, he was called upon for a hearing at Noida. He was permitted to examine the documents and peruse the statements at Noida. Subsequently, members of the Committee came to Kerala and the victim and witnesses were examined on 18/4/2013 and thereafter a report was submitted on 4/1/2014. As far as the petitioner is concerned, he was given a show cause notice on 17/10/2012, for which he had given a reply on 19/10/2012. The Committee had heard him on 26/3/2013 at Noida. Thereafter, he was not made known about the findings of the Committee, its report or any other material. Learned Senior Counsel would submit that the procedure adopted by the management is a summary enquiry as evident from the notification dated 20/12/1993. It is pointed out that though the Director can dispense with a regular enquiry on account of serious embarrassment to the student or his guardian, or on account of other practical difficulties, it is incumbent on the part of the disciplinary authority to provide a copy of the report available after the summary enquiry. Failure to give such a report after the summary enquiry amounts to violation of principles of natural justice. Learned counsel placed reliance on the judgment of the Apex Court in Avinash Nagra v. Navodaya Vidyalaya Samiti and Others, 1997 2 SCC 534. The Apex Court held that when there are allegations of sexual abuse against girl children, regular enquiry can be dispensed with and not providing opportunity for cross-examination does not amount to violation of principles of natural justice. Learned counsel however would submit that, that was a case in which, after issuing the show cause notice, together with statement of the girl and other witnesses, and after receiving his explanation, a report was drawn which was submitted to the Court wherein there is a finding that appellant is guilty of moral turpitude involving exhibition of immoral sexual behaviour. It is pointed out that when the said petition had come up for admission, counsel insisted for enquiry to be conducted against the alleged misconduct and the Apex Court directed the management to issue show cause notice, to conduct an enquiry and submit a report. It is only under the aforesaid factual circumstances that such a view had been taken by the Apex Court. Learned counsel also referred to a judgment of the learned Single Judge of this Court in Sibu v. Air India Ltd., 2016 2 KerLT 374. That was a case in which this Court was considering the scope of enquiry with reference to a complaint filed under the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013. It was held that as per the rules framed under the Act, the Committee has to follow the principles of natural justice and finally it was held at paragraph 17 as under:-

(3.) On the other hand, learned counsel appearing for the management would argue that the management has complied with all the necessary formalities as required in such cases and the contrary contention is totally out of place. It is submitted that petitioner admits the fact that a show cause notice had been issued to him and he had given his reply. The Tribunal had the occasion to verify the entire file and it is after verifying the same that the Tribunal had arrived at the aforesaid finding and therefore there is no reason for any interference.