AVINASH NAGRAversusNAVODAYA VIDYALAYA SAMITI ETC.

                            AVINASH NAGRA                                        A
                                      v.
               NAVODAYA VIDYALAYA SAMITI ETC.

                          SEPTEMBER 30, 1996

            [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]                               B

      Service Law.

      Central Civil Service (Classification, Control and Appeal) Rules, 1965.

       Navodaya Vidyalaya-Notification dated December 23, 1993, Clause
                                                                                 c
(b)-Dispensing with regular inquiry-Temporary teacher on proba-
tion-Mora/turpitude-Exhibition of immoral sexual behaviour towards a girl
student-Tennination from service-Writ petition before High Court challeng-
ing the orde1; withdrawn-Second writ petition dismissed-This Court direct-
ing an inquiry into the a/legations-Inquiry report submitted with the finding D
that the teacher was guilty of moral turpitude involving exhibition of immoral
sexual behaviour towards the girl student-Teacher challenging the inquiry as
violative of principle of natural justice inasmuch as he was not afforded an
opportunity to cross-examine the girl student and her colleagues who gave
their statements-Held the record shows that the conduct of the appellant is E
unbecoming of a teacher much less a loco parentis and, therefore, dispensing
with regular inquiry under the rules and denial of cross examination are legal
and not vitiated by violation of the principles of natural justice-Rules have
given the power of the Director to take decision based on the fact situation
where a summary inquiry was necess01y or he can dispense with the services F
of the delinquent by giving pay in lieu of notice.

      Constitution of India, 1950.

       Article SJ-A-Fundamental duties-Navodaya Vidyalaya-Teachel"-
Dismissed from service for exhibition of immoral sexual behaviour towards a      G
girl student-Held, 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 pursuet of excellence.

      Administrative Law-Natural Justice-Navodaya Vidyalaya-Teacher H
                                     105
    106                     SUPREME COURT REPORTS [1996) SUPP. 7 S.C.R.

A -Dismissal from service for exhibition of immoral sexual behaviour towards
    a girl student-Held, dispensing with regular inquiry under the mies and denial
    of cross- examination is legal and not violative of the principles of natural
    justice.
                                                         ..
        Constructive res judicata-Writ petition under'Arlicle 226 filed before
B the High Coult withdrawn-Second writ petition dismissed--Held, the High
  Coult was right in its view that the second writ petition was not maintainable
  in view of the principle of constructive res judicata.

         Maharashtra State Board of Secondary and Higher Secondary Educa-
C tion v. K.S. Gandhi and Ors., [1991] 2 SCC 716, referred to.
          "Human Values and Education" edited by S.P. Ruhela; and "The
    Social and Political Thought" by Dr. S. Radhakrishnan", referred to.

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 14525 of
D 1996.
         From the Judgment and Order dated 9.1.96 of the Himachal Pradesh
    High Court in C.W.P.No. 56 of 1996.

          Arnn K. Sinha for the Appellants.
E
           Ms. Vija;· Lakshmi Menon for the Respondents.

           The following Order of the Court was delivered :

           Leave granted.
F
           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.

G          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 ser-   ----
     vice 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.
H    When he filed writ petition, the High Court, after consideration of the
          AVINASHNAGRAv. NAVODHYA VIDYAIAYASAMITI                         107

record, dismissed the same. When the petition had come up for admission A
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 caus!; notice to the petitioner, conduct an
enquiry and submit the report within a specified time which was sub-
sequently extended. In furtherance thereof, show cause notice dated May B
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 b)I. the appellant and consideration of the entire
record, they have drawn up a report and submitted the sanie to this Court
with the finding that the appellant is guilty of moral turpitude involving C
exhibition of immoral sexual behaviour towards a girl student in J awahar
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        D
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 Arnn Kumar Sinha,            E
learned counsel for the appellant, contended that the matter requires
remittance to the disciplinary authority for conducting de nova 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
                                                                                 F
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 questi~n that arises for consideration is: whether the dis-
missal of the appellant in terms of his letter of appointment is vitiated by G
any error of law and whether he is entitled to a full-fledged enquiry and
opportunity to cross-examine the girl students who 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 H
    108                   SUPREME COURT REPORTS (1996] SUPP. 7 S.C.R.
A of the Government of India would be applicable to the employees of
  Navodaya Vidyalaya. The respondent is running nation-wide co-education-
  al specialised 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
B in relation to the conduct of a teacher resulting in sexual harassment of the
  girl student etc. involving misconduct or moral turpitude, resolution
  prescribing 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 Develop-
C ment, 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 reten-
  tion in service would be prejudicial to the interest of the institution or
D 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 Direc-
E tor. Similarly, when the Director is satisfied, after summary inquiry, that
  there was a prim a f acie guilt of moral turpitude involving sexual harassment
  or exhibition of immoral behaviour 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 allowan-
F ces in lieu thereof, depending upon whether the guilty employee is tem-
  porary 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
G expedient to hold regular enquiry on account of serious embarrassment to
   the student or his guardians or such other practica! difficulties. The Direc-
   tor shall record in writing the reasons under which it is not reasonably
                                                                                   -i-
   practicable to hold such enquiry and he shall keep the Chairman of the
   Samiti informed of the circumstances leading to such termination of ser-
H vices. It would thus be seen that in a given situation, instead of adopting
         AVINASHNAGRAv. NAVODHYA VIDYALAYASAMITI                      109

 the regular procedure under the Rules to terminate the services of an A
 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 B
 for the education and the place of the teacher in that behalf. Article 45 of
 the Constitution enjoins the State to endeavour to provide free and com-
 pulsory 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 C
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 free; 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 D
higher learning upto 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 E
integrity of India. The citizens should , as a duty, defend the country and
render national service when called upon to do 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 F
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 compassion for living creatures. Every citizen
should develop scientific temper, humanism and the spirit of inquiry and
reform; safegnard public property and abjure violence; strive towards G
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
Secondaiy and Higher Secondmy Education v. KS. Gandhi and Ors., [1991] H
    110                   SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.

A 2 SCC 716, this Court, while holding that right to education is a fundamen-
    tal right, had held the native endowments of men are by no means equal.
    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
B   bring about social change including necessary awakening among the
    people. Education promotes intellectual, 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
C   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
D   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 Values" by P.N. Mathur, it is stated that the
E spiritual values taught in education, act as the guiding stars 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, egalitarianism, freedom, social justice
F and secularism will be fruitless unless these constitutional values are im-
  bued with spiritual and moral vallues. The need for religious, moral and
  spiritual education, as a part of educational curriculum, 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
G 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 been endowed with, 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.
H He emphasised that in value oriented education, ethical values help in
         AVINASHNAGRAv. NAVODHYA VIDYALAYASAMTI1                         111

character building and develop discipline in students: cultural values          A
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 it is the duty
of every citizen interested in the future of the country and in the preserva-   B
tion of our great cultural heritage, to extend cooperation for successful
implementation of the programme of value-oriented education being im-
parted by Shri 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     c
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 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. Radhakrish- D
nan was that the education is 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 of society today. According to Dr. Radhakrishnan, E
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 greed,
pusillanimity, anxiety and defeatism. Education, therefore, should not only
train the intellect, promote .technical skill but also develop a person's F
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. Radhakrishnan, man must also realise that in a society where there is G
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 inter-
nationalism.                                                                  H
                                                                                    r
    112                   SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.

A         On the functions of a teacher, at page 133, according to Dr. Radhak-
   rishnan, 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
B
   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 a self-confident learned man. The teacher, therefore, is
C primary functionary to transmit the intellectual and ethical value to the
    young. He should encourage the attitude to 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 intellec-
D tual 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 like salt without
E 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." Shri
   Aurobindo has stated that "it is the teacher's province to hold aloft the
F 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. Radhakrishnan 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
G inspire the pupils who are entrusted to his care with love of virtue and
   goodness. The ideal of a true teacher is andhakaraniridhata gurnr itya
   bhidhiyate. Andhakar is not merely intellectual ignorance, but is also
   spiritual blindness. He who is able to remove that kind of spiritual blind-
   ness is called a guru. Are we deserving the noble appellation of an acharya
H or a guru?" Swami Vivekananda had stated that "the student should live
          AVINASHNAGRAv. NAVODHYA VIDYALAYASAMm                         113

from his very boyhood with one whose character is a blazing fire and should A
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."
                                                                              B
         It is in this backdrop, therefore, that the Indian society has elevated
  the teacher as 'Guru Brahma, Gurur Vishnu Guru Devo Maheshwaraha'.
  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 cha!- C
  lenges of their lives. As Vishnu, the teacher 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 owes 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, dedi- D
 cated 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 E
 Constitution 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 p
 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 dis-
 ciplined 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 G
 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 to mould the calibre, character and
 capacity of the students for successful working of democratic institutions
 and to sustain them in their later years of life as a responsible citizen in H
    114                   SUPREME COURT REPORTS [1996) SUPP. 7 S.C.R.

A different responsibilities. Without a dedicated and disciplined teacher,
    even the best 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 W,'uld 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
B
    degree and supervision demanded by a teacher.

           It is axiomatic that percentage of education among girls, even after
    independence, is fathom deep due to indifference on the part of all in rural
    India except some educated people. Education to the girl children is
C   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 send-
    ing 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,
D   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 respon-
    sibility and should be more exemplary. His/her character and conduct
    should be more like Rishi and as loco parentis and such is the duty,
E   responsibility and charge expected of a teacher. The question arises:
    whether the conduct of the appellant is befitting with such higher respon-
    sibilities and as he by his conduct betrayed the trust and forfeited the faith
    whether he would be entitled to the full-fledged enquiry as demanded by
    him? The fallen standard of the appellant is a tip of the ice berg in the
F    discipline of teaching, a noble and learned profession; it is for each teacher
    and collectively their body to stem the root 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 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
G    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 \vith facts
     the information with Minister, Human Resources Department, Govern-
H    ment of India in that behalf. It is seen from the record that the appellant
             AVINASHNAGRAv. NAVODHYA VIDYAIAYASAMm                       115

    was given a warning of his sexual advances towards a girl student but he A
     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 B
    advantage thereof, he misused his position and made 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 C
    which was not found acceptable to an Inquiry Officer, namely, Asstt.
    Director. After conducting the enquiry, he submitted the report to the
1

    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 D
    the cross-examination and harassment and further publicity? In our con-
    sidered 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 tardy E
    process of cross- exa~ination. 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 that 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, F
    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 G
1
    i.;ross-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 H
    116                  ·SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.

A would 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 frinciple of
    law. Thus considered we find no merit in the appeal for interference.
B          The appeal is accordingly dismissed. No costs.

    R.P.                                                    Appeal dismissed.