30 September 1996
Supreme Court







DATE OF JUDGMENT:       30/09/1996




JUDGMENT:                          O R D E R      Leave granted.      We have heard learned counsel on both sides.      This appeal  by special  leave arises from the order of the High  Court of  Himachal Pradesh made on January 9, 1996 in Writ Petition No. 56/96.      The appellant  was appointed as a post-graduate teacher on January  28, 1994. Initially he worked at Patiala but was transferred to  Kinnaur. The Respondent-institution is a co- educational  institution.   The  appellant’s   service   was terminated in  terms of  his letter  of  appointment  giving salary in  lieu of  notice on  the ground  of  his  improper conduct with  a girl  student. When  he filed writ petition, the High Court, after consideration of the record, dismissed the same.  When the  petition had  come up for admission and the counsel insisted upon an enquiry to be conducted against the alleged  misconduct, by  Order dated  March 13, 1996, we directed the  management to  issue show  cause notice to the petitioner, conduct  an enquiry and submit the report within a  specified   time  which  was  subsequently  extended.  In furtherance thereof,  show cause  notice dated  May 2, 1996, together with the statements of the girl, her room-mates and the attender, Bharat Singh, were supplied to the petitioner. After receipt  of the explanation submitted by the appellant and consideration of the entire record, they have drawn up a report and submitted the same to this Court with the finding that the  appellant is  guilty of  moral turpitude involving exhibition of immoral sexual behavior towards a girl student in Jawahar  Navodaya Vidyalaya, Kinnaur. On consideration of the report  and the record we have heard the counsel on both sides.      It is  contended for  the appellant  that  the  charges levelled against him impinge upon his character, conduct and career. Therefore,  he should have been given an opportunity to cross-examine  the girl  student and  her colleagues  who have given their statements and to had himself examined. The procedure adopted, therefore, is in violation of the settled legal principles and principle of audi alterem partem. It is accordingly vitiated  by manifest  error of  law  warranting interference. Shri Arun Kumar Sinha, learned counsel for the



appellant, contended  that the matter requires remittance to the disciplinary  authority for  conducting de  novo enquiry and give  an opportunity to establish appellant’s innocence. It is  also contended that since the appellant had filed the writ petition  initially which  was dismissed  as withdrawn, the  second   writ  petition  cannot  be  dismissed  on  the principle of constructive res judicata. The view of the High Court, therefore, was vitiated by serious errors of law. The learned counsel for the respondents resisted the contention.      The first  question that  arises for  consideration is: whether the  dismissal of  the appellant  in  terms  of  his letter of  appointment is  vitiated by  any error of law and whether  he  is  entitled  to  a  full-fledged  enquiry  and opportunity to cross-examine the girl students who have gave the statements  against the  appellant? The  second question is: whether  the High Court was right in dismissing the writ petition under  the impugned  order dated  January 9,  1996? Indisputably, the  provisions of C.C.S. (C.C.O.) Rules, 1965 of the  Government of  India  would  be  applicable  to  the employees of  Navodaya Vidyalaya.  The respondent is running nation-wide  co-educational   specialized  and   prestigious schools in  which 1/3rd  of the  students are  girls. With a view to  ensure safety and security to the girl students, to protect their  modesty and prevent their unnecessary exposer at an  enquiry in  relation to  the  conduct  of  a  teacher resulting in  sexual harassment  of the  girl  student  etc. involving      misconduct      or      moral      turpitude, resolutionprescribing special summary procedure was proposed and published by notification dated December 23, 1993, after due approval of the Executives of the respondent-Samiti. The Minister of  Human Resources  and Development, Government of India  is  its  Chairman.  The  notification  postulates  to dispense with  regular enquiry  under the Rules. In the case of a  temporary employee  whose  integrity  and  conduct  is doubtful but  difficult to prove with sufficient documentary evidence to  establish the  charge and  whose  retention  in service  would   be  prejudicial  to  the  interest  of  the institution or  whose grave misconduct and the enquiry under the Rules  would be likely to result in embarrassment to the class of  employees or  is likely to endanger the reputation of  the  institution,  the  appointing  authority,  for  the reasons to  be recorded  in  the  file,  may  terminate  his services in terms of the letter of appointment. The order of termination need  not contain any reasons but the appointing authority  has  to  obtain  prior  approval  of  the  Deputy Director. Similarly,  when the  Director is satisfied, after summary inquiry, that there was a prima facie guilt of moral turpitude  involving  sexual  harassment  or  exhibition  of immoral behaviors towards any girl student, under clause (b) of the  above notification,  the Director "can terminate the services of that employee by giving him one month’s or three months’ pay  and allowances  in lieu thereof, depending upon whether the guilty employee is temporary or permanent in the services of  the Samiti. In such cases, procedure prescribed for holding enquiry for imposing major penalty in accordance with the  Rules  as  applicable  to  the  employees  of  the Respondent,  shall  be  dispensed  with  provided  that  the Director is of the opinion that it is not expendient to hold regular enquiry  on account  of serious embarrassment to the student  or   his  guardians   or   such   other   practical difficulties. The  Director  shall  record  in  writing  the reasons under which it is not reasonably practicable to hold such enquiry  and he  shall keep  the Chairman of the Samiti informed of the circumstances leading to such termination of services. It  would thus  be seen that in a given situation,



instead of adopting the regular procedure under the Rules to terminate the  services of  an  employee,  the  notification prescribes the  procedure to  dispense  with  such  enquiry, subject to  the conditions mentioned above. The question is: whether the  order terminating the services of the appellant in terms  of his  appointment letter  is in violation of the Rules or the principles of natural justice? Before answering the question,  it is  necessary to consider the need for the education and  the place  of the  teacher  in  that  behalf. Article  45  of  the  Constitution  enjoins  that  State  to endeavour to  provide free  and compulsory  education to all children, till they complete the age of 14 years. This Court has held  that right to education is a Fundamental Right and the State  is required  to organise  education  through  its agencies or  private institutions in accordance with the law and the  regulations or  the scheme.  As laid  down by  this Court, it  is the  duty of  the State  to provide compulsory primary  education   freely;  secondary  education  and  the university education  according to  the appropriate statutes and the schemes. The Union of India had adopted the Navodaya Vidyalaya Scheme to impart discipline and higher learning up to the  stage of secondary education. Article 51A in Chapter IVA of the Fundamental Duties envisages that it shall be the duty of  every citizen of India to abide by the Constitution and respect  its ideals  and institutions, the National Flag and the  National Anthem.  The citizen  should  cherish  and follow the noble ideals which inspired our national struggle for freedom;  to uphold  and protect  the sovereignty, unity and integrity  of India.  The citizens  should, as  a  duty, defend the  country and  render national service when called upon to  du so;  to promote harmony and the spirit of common brotherhood amongst  all the  people of  India  transcending religious, linguistic and regional or sectional diversities. The citizen, as a duty, should renounce practices derogatory to the  dignity  of  women;  value  and  preserve  the  rich heritage of  our composite  culture; protect and improve the natural environment  including forests,  lakes,  rivers  and wild life,  and to  have compass  in for  living  creatures. Every citizen should develop scientific temper, humanism and the spirit  of inquiry and reform; safeguard public property and  abjure  violence;  strive  towards  excellence  in  all spheres of  individual and  collective activity  so that the nation constantly  rises to  higher levels  of endeavour and achievement. These  ideals should be nurtured and imbibed by imparting to  the receptive minds of the children from their childhood. In  Maharashtra  State  Board  of  Secondary  and Higher Secondary Education v. K.S. Ganghi and Ors. [(1991) 2 SCC 7161,  this Court, while holding that right to education is a  fundamental right,  had held  the native endowments of men are  by no means equial. Education means a process which provides for intellectual, moral and physical development of a child  for good  character formation;  mobility to  social status; an  opportunity to  scale equality  and  a  powerful instrument to  bring about social change including necessary awakening among the people. Education promotes intellecutal, moral and  social democracy.  Education lays  foundation  of good citizenship and is a principal instrument to awaken the child to  intellectual and  cultural pursuits  and values in preparing the  child for  later  professional  training  and helps him  to adjust  to  the  new  environment.  Education, therefore, should  be co-related to the social, political or economic needs  of our  developing nation  fostering secular values,  breaking   the  barriers   of  casteism,  linguism, religious bigotry  and should act as an instrument of social change.  Education   kindles  its   flames  for  pursuit  of



excellence, enables  and enobles  the young  mind to sharpen his or her intellect more with reasoning than blind faith to reach intellectual  heights and  inculcate in  him or her to strive for social equality and dignity of person.      In "Human  Values and  Education" edited by S.P. Ruhela under the article on "The Problem of Values" by P.N. Mathur, it is  stated that the spiritual values taught in education, act as  the guiding starts providing motive force behind his thought, emotion  and action;  the value should be moral and spiritual in socio-cultural and spiritual life of man has to be such  as brings  peace, progress and welfare of both, the individual and  the society.  The talk of scientific temper, egalitariansim, freedom,  social justice and secularism will be fruitless  unless these  constitutional values are imbued with spiritual  and moral  values. The  need for  religious, moral and  spiritual education,  as a  part  of  educational curriculam,  being   taught  in   Sathya   Sai   Educational Institutions and  its utility  to the social regeneration of falling standard  of  moral  and  social  conduct,  was  re- emphasised in  those articles  published in book form on the 60th Birthday  of Shri  Sathya Sai  Baba. In the foreword to the said  book, Shri Justice V. Bala Krishna Eradi, a former Judge of  this Court,  has emphasised that the rich cultural and spiritual  heritages we have endowed, is being neglected after independence, denying to the youth of this country the opportunity to  imbibe moral,  cultural and spiritual values that form  part of our heritage. He emphasised that in value oriented  education,   ethical  values   help  in  character building and develop discipline in students; cultural values enable the  students  to  transcend  the  bounds  of  narrow sectarianism and  develop  equal  respect  for  all  faiths. Similarly spiritual  values open  the vision of a student to ‘one spirit’  dwelling in  all and  unite him with the whole mankind as  one family. He, therefore, emphasised that ti is the duty  of every  citizen interested  in the future of the country and  in  the  preservation  of  our  great  cultural heritage,   to    extend    cooperation    for    successful implementation of  the programme of value-oriented education being imparted by Sri Sathya Sai Educational Institutions.      In  "the   Social  and  Political  Thought  of  Dr.  S. Radhakrishnan" by  Clarissa Rodrigues,  at page  120, it has been stated  that education  helps  to  improve  the  social order. An educated man has an open mind, a broad outlook, is willing to  reconsider issues and make his own decisions. He is liberated  from the  tutelage  to  outmoded  notions,  to oppressive institutions  and is always willing to learn from others and change whenever it is necessary. On the necessity of  education,   it  is   stated  that   the  view   of  Dr. Radhakrishnan was  that the  education in  meant  to  enable individuals to  tackle the  myriad problems of society (such as ignorance,  disease, poverty  and so on) and to cope with the accelerated  pace of  change in several spheres (such as agriculture, industry,  medicine, transport,  communication) which  is   a  characteristic   feature  so  society  today. According  to   Dr.  Radhakrishnan,   education   from   the individual point  of view will be incomplete, if it does not initiate the  child to  the supreme  values of  love, truth, goodness and  beauty and fill him with a sense of purpose or else he  suffers from  merged,  pusillanimity,  anxiety  and defeatism. Education,  therefore, should  not only train the intellect,  promote  technical  skill  but  also  develop  a person’s  aesthetic   abilities  and  especially  moral  and spiritual values. This is in accordance with the Upanishadic view that  we should  aim at  the play of life (pranaraman), the satisfaction  of mind  (manarandam) and  the fullness of



tranquillity (santisamdharm).  On social  aims of education, according to  Dr. Radhakirshnan,  man must also realise that in  a   society  where  there  is  social  injustice,  gross inequality and lack of fraternity, individual liberty cannot be preserved.  It must also be borne in mind that individual freedom entails social responsibility. Education, therefore, transforms  the   social  order   by  promoting   a  healthy nationalism and the spirit of internationalism.      On the  functions of  a teacher, at page 133, according to Dr. Radhakrishnan, the success of the educational process depends considerably  on the  teacher, for it is the teacher who has  to implant  aims, and to build the character of the students. According  to Laski,  at bottom  of the education, the quality  of a  university is always in direct proportion to the  quality of  its teacher.  A good  teacher is one who knows his  subject, is  enthusiastic about  it and  one  who never ceases  to learn.  Communication with the students and sense of  commitment to  his  work  are  necessary.  A  good teacher, therefore,  according to  Dr. Radhakrishnan, is one was is  objective, just,  humble and  is open to correction. According to  Whitehead the  teacher must  be self-confident learned man.  The teacher, therefore, is primary functionary to transmit the intellectual and ethical value to the young. He  should  encourage  the  attitude  of  free  enquiry  and rational reflections.  The teacher  should try to remove the leaden weights  of pride  and prejudice,  passion and desire which are  likely to  cloud a  student’s vision. the devoted teacher is  not only concerned with the child’s intellectual development but  also has  the obligation  to attend  to his moral, emotional and social growth as well.      Mahatma Gandhiji,  the Father  of the Nation has stated 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  ad 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  sun-lit peaks."  Dr. S. Radhakrishanan has stated 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. 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 Tyagis."      It is  in this  backdrop, therefore,  that  the  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. The  education that  is  imparted  by  the  teacher determines the  level of  the student  for the  development, prosperity  and   welfare  of   the  society.  The  quality, competence and character of the teacher are, therefore, most significant for  the efficiency of the education system as pillar of  built democratic institutions and to sustain them in their  later years  of life  as a  responsible citizen in different  responsibilities.   Without   a   dedicated   and disciplined teacher,  even the  best of  education system is bound to  fail. It is, therefore, the duty of the teacher to take such  care of the pupils as a careful parent would take of its  children and  the ordinary  principle  of  vicarious liability would apply where negligence is that of a teacher. The age of the pupil and the nature of the activity in which he takes  part, are  material factors determining the degree and supervision demanded by a teacher.      It is  axiomatic that  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.  Education to the girl children is nation’s asset  and   foundation  for  fertile  human  resources  and disciplined  family   management,  apart  from  their  equal participation in  socio-economic  and  political  democracy. Only of  late, some middle class people are sendign the girl children to  co-educational institutions  under the  care of proper management  and to  look after the welfare and safety of the girls. Therefore, greater responsibility is thrust on the management  of the  schools and  colleges to protect the young children,  in particular,  the growing  up  girls,  to bring them  up  in  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  parent  is  and  such  is  the  duty, responsibility  and  charge  expected  of  a  teacher.  The question arises:  whether the  conduct of  the appellant  is



befitting with such higher responsibilities and as he by his conduct betrayed  the trust  and forfeited the faith whether he would  be entitled to the full-fleged enquiry as demanded by him?  The fallen standard of the appellant is an ice berg in  the   discipline  of   teaching,  a  noble  and  learned professing; it  is for  each teacher  and collectively their body to  stem the  rot to  sustain the  faith of the society reposed in them. Enquiry is not a pannacea but a nail on the coffin.  It   is  self-inspection  and  correction  that  is supreme. It  is sen 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.  It is  seen from  the record that  the appellant was given a warning of his sexual advances towards  a girl  student but  he  did  not  correct himself and  mend his conduct. He went to the girl hostel at 10 p.m.  in the  night and  asked the  Hostel helper, Bharat Singh to misguide the girl by telling her that Bio-Chemistry Madam was calling her; believing the statement, she came out of the  hostel. It  is the admitted position that she was an active participant  in cultural activities. Taking advantage thereof, he misused his position and adopted sexual advances towards her. When she ran away from his presence, he persued her to  the room  where she locked herself inside; he banged the door.  When he  was informed  by her room mates that she was asleep, he rebuked them and took the torch from the room and went  away. He admitted his going there and admitted his meeting with  the girl  but he had given a false explanation which was  not  found  acceptable  to  an  Inquiry  Officer, namely. Asstt.  Director. After  conducting the  enquiry, he submitted the  report  to  the  Director  and  the  Director examined the  report and  found him to be not worthy to be a teacher in  the institution.  Under those circumstances, the question arises:  whether the girl and her room-mates should be exposed  to  the  cross-examination  and  harassment  and further publicity?  In our considered view, the Director has correctly taken  the decision  not to  conduct  any  enquiry exposing the  students  and  modesty  of  the  girl  and  to terminate the  services  of  the  appellant  by  giving  one month’s salary  and allowances  in lieu of notice as he is a temporary employee under probation. In the circumstances, it is very  hazardous to  expose the  young girls  for tortuous process of cross-examination. Their statements were supplied to  the  appellant  and  he  was  given  an  opportunity  to controvert the correctness thereof. In view of his admission that he went to the room in the night, though he shifted the timings  from  10  p.m.  to  8  p.m.  which  was  found  not acceptable to  the respondents  and that  he took  the torch from the  room, do  indicate that  he went  to the room. The misguiding statement  sent through  Bharat Singh, the hostel peon, was  corroborated by  the statements  of the students; but for  the misstatement, obviously the girl would not have gone out  from the  room.  Under  those  circumstances,  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.      The High  Court also  was right  in its conclusion that



the  second   writ  petition  is  not  maintainable  as  the principle of constructive res judicata could apply. He filed the writ  petition in  first instance  but withdrew the same without permission  of the  Court with  liberty to  file the second writ  petition which  was dismissed.  Therefore,  the second writ petition is not maintainable as held by the High Court  is  applying  the  correct  principle  of  law.  Thus considered we find no merit in the appeal for interference.      The appeal is accordingly dismissed. No costs.