1. Heard Sri Tripathi B.G.Bhai, Advocate, holding brief of Ms. Anita Tripathi, learned counsel for petitioner, Sri Tirath Nath Shukla, Advocate holding brief of Sri Shyam Shekhar, learned counsel for respondents and perused the record.
2. This writ petition under Article 226 of Constitution of India has been filed by Mohammad Hasan, a Post Graduate Teacher (Commerce) working in Ahmadi School (hereinafter referred to as "School"), which is part of Aligarh Muslim University (hereinafter referred to as "A.M.U."), assailing order dated 27.09.2004 passed by Vice Chancellor (hereinafter referred to as "V.C.") under Section 19(3) of Aligarh Muslim University Act, 1920 (hereinafter referred to as "Act, 1920") terminating services of petitioner by giving him salary of two months in lieu of notice.
3. Facts in brief giving rise to present writ petition are that A.M.U. is a Central University governed by the provisions of Act, 1920. School is maintained, run, supervised and controlled by A.M.U. School is imparting education to blind students upto High School.
4. A temporary vacancy of Post Graduate Teacher (Commerce) (hereinafter referred to as "P.G.T. (Commerce)") fell vacant due to suspension of one Hashim Ali Khan, hence vacancy was advertised. Selection was made and one Mrs. Farah Tasneem selected and recommended for appointment as P.G.T. (Commerce). She was issued letter of appointment on 02.02.1999 but she failed to join. Petitioner was next in waiting list. Therefore, he was recommended and letter of appointment was issued on 06.03.1999 appointing him for a period of one year or till vacancy exist or until further orders, on such terms and conditions as applicable to temporary appointments. Petitioner joined his duties as P.G.T. (Commerce) on 09.03.1999. Since term of appointment of petitioner was going to expire, vide order dated 23.02.2000 it was extended for a further period of one year or till vacancy exists or until further orders, whichever is earlier, with effect from 09.03.2000.
5. Subsequently, Hashim Ali Khan was dismissed from service. Vacancy of P.G.T. (Commerce) teacher became substantive. Consequently, fresh letter of appointment dated 21.09.2000 was issued to petitioner appointing him for a period of one year or till further orders, whichever is earlier, with effect from the date he joins, on such terms and conditions as applicable to temporary appointees. Thereafter, tenure of temporary appointment of petitioner was extended for one month with effect from 01.09.2002, vide order dated 07.10.2002; and for a period of two months vide order dated 25.11.2002.
6. Thereafter, selection for substantive appointment on the post of P.G.T. (Commerce) was held and letter of appointment dated 08.03.2003 was issued appointing petitioner as P.G.T. (Commerce) on probation for a period of one year. Pursuant to aforesaid appointment, petitioner joined on 12.03.2003. The probation period was going to expire on 13.3.2004. Principal of School recommended petitioner for confirmation stating that his work and conduct is satisfactory. However, Vice-Chancellor of University extended petitioner's probation for period of six months, which was communicated to petitioner vide letter dated 25.2.2004, issued by Deputy Registrar (Administration-T). Six months' probation was extended from 12.03.2004. Again probation period was extended by two months by Vice Chancellor, which was communicated to petitioner by Assistant Registrar's letter dated 18.9.2004. Ultimately, vide impugned order dated 27.9.2004, exercising power under Section 19(3) of Act, 1920, petitioner's services have been dispensed with.
7. It is contended that aforesaid termination amounts to removal from service. It is punitive and wholly arbitrary, inasmuch as, work and performance was satisfactory and he was recommended for confirmation by Principal and Manager of School, still has been terminated.
8. A counter affidavit has been filed on behalf of A.M.U. sworn by Atique Ahmad Khan, Section Officer, Legal Section of A.M.U. It is stated therein that a complaint was received that petitioner has sexually assaulted a young teen-aged girl of Class X namely Miss Azra Firdaus. On a query made by A.M.U., Manager of School informed Registrar vide letter dated 11.11.2002 that action is being taken by Principal of School. Further, National Federation of Blind, Aligarh Unit, Aligarh passed a resolution demanding stern action against petitioner and communicate the same to A.M.U.. Deputy Registrar, vide letter dated 22.11.2002, required Principal to investigate the matter and submit a comprehensive report. A reminder was also sent on 27.11.2002. Principal, vide letter dated 26.11.2002, informed that matter was investigated by a lady Deputy Proctor Ms. Qamar Jahan, and, as per her findings, there was some misunderstanding on the part of girl student. Vice-Chancellor, however, wanted to examine entire matter and vide letter dated 19.12.2002, Deputy Registrar required Principal to furnish all the relevant documents for examination by Vice-Chancellor.
9. Principal of School again submitted report in favour of petitioner. Matter was examined by A.M.U. It was found that matter was not investigated properly. Even statement of complainant and other victims namely, Miss. Shazia and Ms. Siddiqua were not recorded. Thereafter, Vice-Chancellor appointed Prof. Shireen Moosvi, Department of History, to conduct a fact-finding inquiry into the matter. Prof. Shireen Moosvi submitted a report informing that she collected evidence and in the process, Principal of School did not cooperate. She recorded statements of Miss Azra Firdaus, Mrs. Shama Husain (Lady Superintendent) and petitioner. In her report, she pointed out that Principal of School also shown negligence and hostility and this was also complained by primary complainant i.e. Miss Azra Firdaus. The complainant supported her complaint about misbehavior by petitioner. The extract of findings recorded in paras 3.3. and 3.4 are reproduced as under :
"3.3. In summary Miss Firdaus has all along been firm in her statements that while she received nothing but good treatment from all her other teachers, Mr. Hasan several time took liberties with her, touched her cheeks, ran his fingers through her hair, said "I love you", etc. All this amounts to gross sexual harassment. Miss Firdaus's consistency throughout marks her complaint with the stamp of truth.
3.4. As against this Mr. Hasan in his denial of misconduct or ill intent admitted that since the room was small, his hand might have touched Miss. Firdaus. After making this statement on 11.2.2004 he appeared at the Social Science Faculty Office on 25.2.2004 waving the order of the extension of his probation and alleging that such complaints against other teachers of the School by girl students are quite common. Only because the other teachers are permanent, he said, no one cares. He tried to stand in my way as I was leaving and threw his hands about while speaking in an excited fashion. It maybe noted that not only did Miss Firdaus say before me that she had received nothing but good treatment from all her other teachers (Enclo.4.), but Mrs Shama Husain, Lady Superintendent with a long record of service in the School, also stated that this was the first time ever that a girl student had complained of sexual harassment from a teacher at the School within her knowledge. (Enclo.5). (emphasis added)
10. Prof. Shireen Moosvi submitted her report dated 15.4.2004 recording following conclusions:
"6. I now should like to sum up my findings:
1. Mr Mohammad Hasan, teacher, Ahmadi School for the Blind, committed acts of sexual harassment against the blind student, Miss Azra Firdaus, amounting to gross misconduct unbecoming of a teacher.
2. Mr Masood Ashraf Khan, Principal, Ahmadi School for the Blind, did not extend any protection to Miss Firdaus, and has been bent on undermining all enquiry into the matter, resorting to defiance of the Vice-Chancellor's orders, and to all kinds of subterfuge and deception for the purpose.
3. The closing of the case after the Deputy Proctor met Miss A. Firdaus on 12.1.2003 was most unfortunate. An immediate report ought to have been made to the Vice-Chancellor by the Proctor/Deputy Proctor." (emphasis added)
11. In view of aforesaid report submitted by Prof. Shireen Moosvi, Vice-Chancellor examined the matter and found that petitioner, who was still a probationer, was not fit for confirmation, hence, dispensed his services in purported exercise of power under Section 19(3) of Act, 1920.
12. In the rejoinder affidavit filed by petitioner, factum of complaint and fact-finding inquiry conducted by Prof. Shireen Moosvi are not disputed. However, it is said that he has been framed falsely pursuant to a conspiracy set up by Sri Mamnoon Akhtar, Secretary, National Federation For Blind (Aligarh Unit), who has some personal grudge against petitioner. In para 10(a) of rejoinder affidavit, it is stated that fact-finding inquiry is not a regular inquiry and termination of petitioner is founded on said inquiry, therefore, it is punitive in nature and termination is liable to be set aside.
13. Here the question is "whether termination of petitioner can be said to be termination simplicitor or it is by way of punishment, founded on alleged fact-finding inquiry conducted against petitioner".
14. A Division Bench of this Court in Paras Nath Pandey Vs. Director, North Central Zone, Cultural Centre, 2008(1) ADJ 283 has considered this aspect at length and has laid down certain guidelines to find out when an order of termination simplicitor can be said to be stigmatic or not and said as under:
57. From the above discussions, the principles discernible to find out whether a simple order of termination/discharge of a temporary employee or probationer is punitive or not, broadly, may be stated as under :
(a) The termination of services of a temporary servant or probationer under the rules of his employment or in exercise of contractual right is neither per se dismissal nor removal and does not attract the provisions of Article 311 of the Constitution.
(b) An order of termination simplicitor prima facie is not a punishment and carries no evil consequences.
(c) Where termination simplicitor is challenged on the ground of casting stigma or penal in nature, the Court initially would glance the order itself to find out whether it cast any stigma and can be said to be penal or not. If it does not, no further enquiry shall be held unless there is some material to show certain circumstances, preceding or attending, shadowing the simplicitorness of the said order.
(d) The Court is not precluded from going beyond the order to find out as to whether circumstances, preceding or attending, makes it punitive or not. If the circumstances, preceding or attending, show only the motive of the employer to terminate, it being immaterial would not vitiate the order unless it is found that order is founded on such act or omission constituting misconduct.
(e) If the order visits the public servant with evil consequences or casts aspersions against his character or integrity, it would be an order by way of punishment irrespective of whether the employee was a mere probationer or temporary.
(f) "Motive" and "foundation" are distinct, though the distinction is either very thin or overlapping. "Motive" is the moving power, which impels action for a definite result, or to put it differently. "Motive" is that which incites or stimulates a person to do an act. "Foundation", however, is the basis, i.e., the conduct of the employee, When his acts and omissions treated to be misconduct, proved or founded, it becomes a case of foundation.
(g) If an order has a punitive flavour in cause or consequence, it is dismissal, but if it falls short of it, it would not.
(h) Where the employer is satisfied of the misconduct and the consequent desirability of termination, it is dismissal even though the order is worded innocuously. However, where there is mere suspicion of misconduct and the employer does not wish to bother about it, and, instead of going into the correctness of guilt, feel like not to keep the employee and thus terminate him, it is simpliciter termination and not punitive.
(i) Where the termination simplicitor is preceded by an enquiry, preliminary or regular, the Court would see the purpose, object of such enquiry as also the stage at which, the order of termination has been passed.
(j) Every enquiry preceding the order of termination/discharge, would not make it punitive. Where an enquiry contemplated in the rules before terminating an probationer or temporary employee is held, it would not make the order punitive.
(k) If the enquiry is to find out whether the employee is fit to be confirmed or retained in service or to continue, such an enquiry would not render termination punitive.
(l) Where the employer hold a formal enquiry to find out the correctness of the alleged misconduct of the employee and proceed on the finding thereof, such an order would be punitive, and, cannot be passed without giving an opportunity to the concerned employee.
m) If some formal departmental enquiry commenced but not pursued to the end. Instead a simple order of termination is passed, the motive operating in the mind of the authority would be immaterial and such an order would be non punitive.
(n) When an order of termination is assailed on the ground of mala fide or arbitrariness, while defending the plea of mala fide, if the authority has referred certain facts justifying the order of discharge relating to misconduct, negligence or inefficiency of the employee in the appeal or in the affidavit filed before the Court, that would not make the order founded on any misconduct.
(o) Sometimes when some reason is mentioned in the order, that by itself would not make the order punitive or stigmatic. The following words mentioned in the order have not been held to be punitive.
i. "want of application", ii. "lack of potential", iii. "found not dependable", iv. "under suspension", v. "work is unsatisfactory", vi. "unlikely to prove an efficient officer".
(p) Description of background facts also have not been held to be stigmatic.
(q) However, the words "undesirable to be retained in Government service", have been held stigmatic.
(r) If there is (i) a full scale formal enquiry, (ii) in the allegations involving moral turpitude or misconduct, (iii) which culminated in a finding of guilt; where all these three factors are present, the order of termination would be punitive irrespective of the form. However, if any one of three factors is missing, then it would not be punitive."
15. In the present case fact-finding inquiry conduced by authorities is only to find out whether conduct and performance of petitioner is satisfactory justifying his confirmation in service or not. Such inquiry will not render termination simplicitor of petitioner, who was admittedly a probationer, punitive in nature.
16. Even otherwise, in this case complainant is a blind girl who has supported her complaint in a fact-fining inquiry, in which her complaint was found correct. Whether in such circumstances order of termination of petitioner deserve to be interfered by this Court in exercise of extra ordinary, equitable and discretionary jurisdiction under Article 226 of the Constitution is another important question to be considered.
17. This issue can be examined in the light of the fact that in the fact finding inquiry, petitioner was also examined. He has given his statement.
18. Power of termination has been exercised by Vice Chancellor under Section 19(3) of Act, 1920, which read as under :
"19(3) The Vice-Chancellor may, if he is of opinion that immediate action is necessary on any matter, exercise any power conferred on any authority of the University by or undr this Act and shall report to such authority the action taken by him on such matter :
Provided that if the authority concerned is of opinion that such action ought not to have been taken, it may refer the matter to the Visitor whose decision thereon shall be final :
Provided further that any person in the service of the University who is aggrieved by the action taken by the Vice-Chancellor under this sub-section shall have the right to appeal against such action to the Executive Council within three months from the date on which decision on such action is communicated to him and thereupon the Executive Council may confirm, modify or reverse the action taken by the Vice-Chancellor." (emphasis added)
19. Vice-Chancellor has found such an action immediately necessary looking to conduct of petitioner in respect whereto a blind girl has made complaint, which, in a fact-finding inquiry, has been found correct. This case has to be examined in the light of the fact that petitioner was holding post of Assistant Teacher and in the status of a Teacher (Guru), that too in a blind school of girl and that too blind, were studying.
20. It is really a matter of shame that a Teacher has been found indulged in such indecent act. In our Country, Teachers are given a special status and even above God. Parents and their children and most particular minor girl students have a firm confidence that like parents, Teachers of Schools also protect students in every manner including behaviour. No one can ever tolerate a Teacher even for a day if even in-deliberately he is found indulged in indecent behaviour with a girl students or with lady staff. When a complaint is made against a Teacher to have misbehaved with a girl student or a co-lady Teacher in an Educational Institution, nature of enquiry need be conducted in such matters is different. It does not attract the same length and width as is contemplated in regular enquiry supposed to be conducted in other matters. The interest of students and their parents is to be seen and need be protected by not involving them in a normal procedure of regular enquiry. It is for this reason, in such type of incidents, requirement of principles of natural justice has been read in a different manner. The opportunity of examination of witnesses and cross-examination have been held, not required, and it will not vitiate ultimate action against such person.
21. At the pain of repetition, this Court observe that in our Country, and in particular, in Hindu scriptures, place of Teacher is that of God like Brahma, Vishnu and Mahesh. There is a well known verse, "Gurur Brahma, Gurur Vishnu, Gurur Devo Maheshwaraha".
22. Special status of teacher has been reminded by Court in Avinash Nagra vs. Navodaya Vidyalaya Samiti and others (1997) 2 SCC 534. Therein, Avinash Nagra was a Post-graduate teacher employed in Navodaya Vidyalaya in 1994. The Institution was a co-educational Institution. Sri Nagra was terminated in terms of letter of appointment on the ground of his improper conduct with a girl student. Writ petition against termination order was rejected, whereafter matter came to Supreme Court. Counsel for Sri Nagra argued that an inquiry ought to have been conducted against alleged misconduct. Court directed management of Navodaya Vidyalaya to give a show cause notice to petitioner. In furtherance thereof, show cause notice was issued to Sri Nagra along with statement of girl, her room-mates etc. After receipt of explanation submitted by Sri Nagra, management drew a report and submitted to Court with finding of guilt of Sri Nagra, of moral turpitude involving exhibition of immoral sexual behaviour, towards a girl student in Jawahar Navodaya Vidyalaya, Kinnaur. It is in this backdrop, matter was decided by Supreme Court vide judgment dated 30th September, 1996.
23. Similar arguments as raised before this Court were also raised therein that Sri Nagra ought to have been allowed to participate in a detailed inquiry, giving an opportunity to cross-examine complainant i.e. girl student and others; and that procedure followed is in violation of settled principles of natural justice. Rejecting this contention, Court held that educational Institution was part of chain of nation-wide co-educational specialized Institutions and almost 1/3rd students were girls. With a view to ensure safety and security to girls students, to protect their modesty and prevent their unnecessary exposer at an enquiry, in relation to conduct of a teacher, resulting in sexual harassment of girl student etc., involving misconduct or moral turpitude, a resolution prescribing special summary procedure was proposed and published by notification dated 23 December, 1993, after due approval of Executive of Educational Institution Committee. The notification postulates to dispense with regular enquiry under Rules. The provisions, therefore, contemplated a situation where instead of adopting regular procedure under rules, to terminate services of an employee, a summary procedure may be followed and adopted by dispensing with a regular enquiry.
24. It is in this backdrop, Court in Avinash Nagra (supra) first considered, whether in respect of a teacher such summary inquiry would be justified or not. Court considered special status and position, a teacher enjoys in this country. Quoting Father of the Nation, Court said 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 and purity amongst them, they will have betrayed them. Quoting Shri Aurobindo, Court said 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. Court also referred Dr. S. Radhakrishanan saying 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'. Swami Vivekananda was also quoted saying that 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.
25. In para 12 of Judgment, Court in Avinash Nagra (supra) said as under:
"..............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 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............." (Emphasis added)
26. Having said so, Court said that in a country where 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, if a teacher of Educational Institution is indulged in such kind of activities and, thereafter, girl students are to be embarrassed by allowing participation in a detailed inquiry wherein they are also to be allowed to cross-examine by teacher concerned, it will result in a serious negative impact on the cause of education, particularly to girl students. In a country like ours, greater responsibility is thrust on Management of schools and colleges to protect young children and in particular, growing up girls, to bring them up in a 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 parentis and such is the duty, responsibility expected of a teacher. When a teacher by his conduct has betrayed the trust and forfeited the faith, he cannot claim a full-fledged enquiry and it is sufficient, if basic compliance of natural justice is observed by giving a show cause notice informing allegations levelled against him and substantial disclosure of material available against him and thereafter a decision is taken after considering his reply.
27. Court in Avinash Nagra (supra) also said as under:
"...........Enquiry is not a pannacea but a nail on the coffin. It is self-inspection and correction that is supreme. It is seen 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.......... 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."
28. Similarly in another matter in Hira Nath Mishra and others vs. The Principal, Rajendra Medical College, Ranchi and another (1973) 1 SCC 805, some male students entered into a girls' Hostel. Allegations of indecent behaviour were levelled against them. An Enquiry Committee was constituted consisting of some independent persons who conducted a summary enquiry and after taking statements of girl students, without confronting them with male students, action was taken against erring students. The action taken against male students was challenged on the ground that enquiry was conducted behind their back and it is not consistent with the principles of natural justice. Repelling this argument, Court said that in this background it cannot be said that principles of natural justice would require that statements of girl students should have been recorded in presence of male students concerned and an opportunity of cross-examination by male students should have been allowed. Court said that principles of natural justice cannot remain the same, applying to all conditions. Referring to Statute like Goonda Act, Court noted that therein evidence can be collected behind back of goondas. They may be merely asked to represent against main charges arising out of evidence collected. Court observed:
"Care is taken to see that the witnesses who gave statements would not be identified. In such cases there is no question of the witnesses being called and the goonda being given an opportunity to cross-examine the witnesses. The reason is obvious. No witness will come forward to give evidence in the presence of the goonda. However unsavoury the procedure may appear to a judicial mind, these facts which are to be faced. The girls who were molested that night would not have come forward to give evidence in any regular enquiry and if a strict enquiry like the one conducted in a court of law were to be imposed in such matters, the girls would have had to go under the constant fear of molestation by the male students who were capable of such indecencies......." (Emphasis added)
29. These authorities in Avinash Nagra (supra) and in Hira Nath Mishra (supra) have been followed in several subsequent authorities including Division Bench judgments of this Court in Dr. Bhishambhar Dayal Gupta vs. Visitor/ President of India, Aligarh Muslim University and others 2005 (4) ESC 2284; and Dr. Indra Datta Pandey Vs. Central Administrative Tribunal and others (Writ-A No. 1168 of 2005) decided on 07.12.2016.
30. Similar issue came up for consideration before this Court in Service Writ (S/B) No.2004 of 2009 (Thakur Prasad Maurya (T.P.Maurya) Vs. Union of India & Ors.) decided on 03.03.2017 wherein this Court held that in the facts and circumstances where girl students has made complaint against a teacher regarding indecent sexual behaviour and molestation and in a fact-finding inquiry found correct, there is no necessity of holding regular departmental inquiry and termination of such teacher is justified.
31. In the entirety of facts and circumstances of this case, I am satisfied that it is not a fit case justifying interference under Article 226 of the Constitution of India.
32. Writ petition lacks merit. Dismissed.
33. Interim order, if any, stands vacated.
Order Date :- 30.01.2019 KA