BHUSHAN TRIPATHI vs SAMARTH SHIKSHA SAMITI (REGD.) & ORS.
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 759/2023 & CM APPL. 60601-60604/2023
BHUSHAN TRIPATHI ….. Appellant
Through: Mr. S.K.Vashisth, Mr. Vikram Singh and Mr. Ashish Singh, Advocates.
versus
SAMARTH SHIKSHA SAMITI (REGD.) & ORS. ….. Respondents
Through: Ms. Latika Chaudhary, Advocate for R-6
% Date of Decision: 04th December, 2023
CORAM:
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MS. JUSTICE MINI PUSHKARNA
J U D G M E N T
1. The present appeal challenges the order dated 21st July, 2023 passed by the learned Single Judge in W.P.(C) 286/2012, whereby the writ petition filed on behalf of the appellant has been dismissed. By the impugned order, the learned Single Judge has confirmed the order dated 18th May, 2011 passed by the Delhi School Tribunal (DST) in Appeal No. 43/2003 which upheld the order of dismissal of the appellant from service dated 4th November, 2003 passed by respondent no. 1.
2. The brief facts of the case are as follows:
2.1 The appellant started working with the respondent no. 2/School on 01st October, 1990 as a music teacher and was teaching students up to 10th class.
2.2 On 11th June, 1992, the services of the appellant were terminated. Appeal filed on behalf of appellant before the DST, being Appeal No. 28/1991 was allowed, pursuant to which the appellant was reinstated back in service.
2.3 A complaint was received against the appellant by parents of a girl student of 6th Class. According to the allegations, on the intervening day of incident i.e. 13th February, 2002, the appellant called upon the complainant- girl student to the Home Science Laboratory of the school. When she was alone, he told her that he liked her, proposed to her and forcefully kissed her hand. It was also alleged that the appellant threatened the girl student to prevent her from disclosing this incident to anybody. The girl student told her parents about the incident on 14th February, 2002 that her music teacher had misbehaved with her and abused her.
2.4 Pursuant to a written complaint made by the parents of the girl student to the Vice-Principal of respondent no. 2/School, a Show Cause Notice was issued to the appellant. Subsequently, the appellant was placed under suspension from 5th March, 2002.
2.5 A charge-sheet containing Article of Charges was served upon the appellant vide Memo dated 20th December, 2002 and the appellant was asked to submit his statement of defense. Departmental Enquiry was held. Subsequently, on 16th July, 2003, the appellant was served with the Enquiry Report and was asked to show cause as to why the penalty of dismissal may not be imposed upon him. Appellant made a representation against the said Show Cause Notice. Ultimately, he was dismissed from service on 4th November, 2003.
2.6 Aggrieved by his dismissal order, the appellant approached the learned DST in Appeal No. 43/2003, which came to be dismissed vide order dated 18th May, 2011. The appellant challenged the order passed by the learned DST in a writ petition, being W.P.(C) 286/2012. The said writ petition filed on behalf of the appellant was dismissed by the impugned order dated 21st July, 2023, against which, the present appeal has been filed.
3. On behalf of the appellant, it is contended that the appellant has been made victim of conspiracy and he was ousted from the service on account of his legal demands for fixation of his pay as per Fourth and Fifth Pay Commission. The appellant remained unrepresented by any Defense Assistant. On the contrary, the Enquiry Officer, who was having close connection with school management, was a practicing advocate and an expert, while appellant was not having any knowledge regarding conduct of the Departmental Enquiry. The appellant has been meted out with grave injustice and Principles of Natural Justice have been grossly violated. The appellant wanted to engage Shri K.K. Dubey, Advocate as his Defense Assistant. However, the said request of the appellant was rejected.
4. Per contra, on behalf of the respondent, it is submitted that the impugned order passed by the learned Single Judge is justified.
5. We have heard learned counsel for the parties and perused the record.
6. At the outset, it is noted that there were serious allegations against the appellant, who was a music teacher, involving a minor female student. The complaint received against the appellant from the parents of the complainant girl student, reads as under:
Respectfully, it is submitted that my daughter is studying in your school in Class VI-B. On 13.02.2002, Wednesday, a teacher named Bhushan called my daughter from her class, Jyotsana also accompanied******, on which teacher snubbed her and sent her back by saying as to why she has come. After that girl went away, some work was assigned regarding putting the plates there and thereafter, he told to give him a kiss whereupon the girl got scared and said Sir, what are you saying, then he replied, doesnt matter and asked not to tell anybody, then he caught her hand and kissed. He also threatened that if she informed anybody, it will not be good
7. Pursuant to the aforesaid complaint, charge-sheet dated 03rd March, 2001 was issued against the appellant, wherein the statement of Article of Charges against the appellant, reads as under:
Article I
That the said Shri Bhushan Tripathi, while functioning as Music Teacher under the Shri Sanatan Sharam Saraswati Bal Mandir during the year 2002 committed gross misconduct, misbehavior, in as much as he caused cruelty towards a girl student, ****** ****** of Class VI-B outraging her modesty and sexual harassment against her on 13.02.2002 in the school premises.
Thus by his aforesaid act, the said Shri Bhushan Tripathi, Music Teacher acted in a manner unbecoming of a teacher of Shri Sanatan Dharam Saraswati Bal Mandir and showed grave misconduct on his part.
8. Upon framing the charge and conducting a preliminary enquiry, the following statement was made regarding imputation of misconduct against the appellant:
Article I
That the Music Teacher named Shri Bhushan Tripathi called for ****** ****** daughter of Shri ***** *** ****** who is studying in your school in Class VI-B on 13.02.2002. Another student Jyotsana also came with ****** but the teacher rebuked the former and sent her back saying as to why she had come there. After having all the other girls left, she was asked to perform some work of putting plate there and then asked for a kiss. As a result of this ******* got scared and said Sir, what are you saying? Then he replied Doesnt matter, and asked for a promise that she will not inform anybody about this. He then caught her hand and kissed her and also threatened that if she informed anybody, it will not be good, as reported by the parent of the student.
Sir, you tell that in case any student commits such type of misconduct we make complaint to the teacher. If the teacher is such what would be the fate of school and nation. If our child is not safe in school where he will find herself safe? An appropriate action should be taken against such teacher failing which he can repeat such grave misconduct, as reported by the parent of the school.
That Shri Bhushan Tripathi, Music Teacher by his aforesaid act committed grave misconduct and acted in a manner which is subversive of discipline and cruelty towards students and unbecoming of a teacher of Shri Sanatan Dharam Saraswati Bal Mandir thereby making himself liable for disciplinary action.
9. Thereafter, enquiry proceedings were held against the appellant, in which the charges against the appellant were held to be proved. Show Cause Notice dated 16th July, 2003 was issued to the appellant, to which he submitted a detailed reply dated 04th August, 2003. The Disciplinary Authority finally imposed the penalty of dismissal from service on the appellant vide order dated 04th November, 2003, which has been upheld by the learned DST as well as the learned Single Judge.
10. Perusal of the record shows that the appellant examined eight witnesses in his defense, who deposed in relation to his character and conduct, which was stated by the witnesses as above board. Further, it is noted that full opportunity to defend his case was granted to the appellant during the course of the enquiry proceedings. Thus, the learned Single Judge has held as follows:
XXX XXX XXX
37. The Tribunal after considering the submissions of the parties, the article of charges made against the petitioner, the inquiry conducted against the petitioner, and the grounds invoked before the Tribunal against the impugned order of dismissal. After considering the material and hearing the parties from both the sides, the Tribunal was of the view that the petitioner failed to show that there was any conspiracy being hatched against him by the respondents. The Tribunal rightly noted that a minor girl or her parents would not make claims of such nature only to sustain the conspiracy against the petitioner by the School. The petitioner also failed to show that he was not adequately represented and further that all the necessary documents pertaining to his case were not provided to him.
38. It has been argued on behalf of the petitioner that he was not permitted to represent himself through a counsel, which issue was also raised at the time of inquiry proceedings, however, both the Inquiry Officer as well as the Tribunal to this effect noted that, firstly, in the interest of justice, the petitioner was given adequate representation and he was permitted to choose any employee to represent him and, secondly, at occasions when the concerned employee was not represented, the inquiry was adjourned since it was not found reasonable to proceed ex-parte against the petitioner.
XXX XXX XXX
11. Further, it is noted that the request of the appellant to engage Shri K.K. Dubey, Advocate as his Defense Assistant was rejected as Shri K.K. Dubey was not the employee of the school. However, the appellant was granted liberty to engage anyone who was an employee of the school. Relevant portion of the order dated 12th April, 2003 passed by the learned Enquiry Officer, in this regard is reproduced hereinunder for ready reference:
xxx xxx xxx
After having considered the aforesaid facts, I am of the view that if Mr. Bhushan Tripathi is permitted to bring any employee of this school as his representative to represent him in the enquiry, the same would meet the ends of justice. Since it is a departmental enquiry and as per reply filed by the management, the management representative do not carry, legal qualification which is neither admitted nor denied by the concerned employee at this stage, the concerned employee cannot be granted permission to bring an outsider or a legally trained person as his representative in the enquiry. However, he is permitted to bring any person working in this school as his defence representative in the enquiry. The application of the concerned employee is disposed of accordingly.
xxx xxx xxx
12. Therefore, no prejudice was caused to the appellant when his request for appointment of Shri K.K. Dubey, Advocate was rejected, being an outsider. Thereafter, the appellant out of his own free will had sought to bring Shri Jainendra as his Defense Assistant, which is clear from the letter written by the appellant to Shri Jainendra, which reads as under:
To
Sh. Jainendra Ji (Lab Assistant)
Bal Mandir, Hari Nagar,
Delhi
Sir,
Disciplinary proceedings have been initiated against me. I want to engage you as my defence assistant if I am permitted by the enquiry officer. If you are agree to the same, then please provide your consent.
Yours faithfully
Sd/-
Bhushan Tripathi
Sangeetacharya
Punjabi Bagh
Received
I have no objection to become
your D.A., if I.O. permits me
Sd/-
Jainendra Singh
24.04.2003
13. Thus, in the proceedings dated 03rd May, 2003 before the learned Enquiry Officer, the No-Objection of the Management for bringing Shri Jainendra as Defense Assistant by the appellant, has been recorded in the following manner:
xxx xxx xxx
The Management has no objection in case the concerned employee is permitted to bring Mr. Jainendra (Lab-Assistant) of Bal Mandir, Hari Nagar, Delhi as his defence assistant in the enquiry. Hence, he is permitted to bring Mr. Jainendra as is representative/defence assistant in the enquiry.
xxx xxx xxx
14. As, Shri Jainendra refused to appear for reasons best known to him, the appellant could have asked for substitution of his Defense Assistant, which he did not. Therefore, it is manifest that a fair enquiry was conducted and the appellant was granted full opportunity to defend himself in compliance with the Principles of Natural Justice. This aspect was considered by the learned DST and while rejecting the contentions of the appellant in this regard, the learned DST held as follows:
XXX XXX XXX
14. Next main grounds of appeal is that the Appellant was not given the defence assistance of a person of his choice. It is settled law that it is not mandatory to provide the assistance of a legally qualified person. The Appellant out of his free will chose on Sh. Jainendra as his defence assistant. It was for the Appellant to ensure the presence of the said Sh. Jainendra on all the dates in the inquiry proceedings. He was given an opportunity to engage another defence assistant on the date when the defence assistance Sh. Jainendra did not attend the proceedings. Now it does not lie in the mouth of the Appellant that he was not provided a proper defence assistance.
15. The Appellant has contended that there was a deep rooted conspiracy in filing the present complaint. The plea raised is devoid of merits as no girl student shall level an allegation regarding molestation or sexual harassment for the allurement of a small concession in the school fee. In any case, the Appellant was given full opportunity to cross-examine the victim as well as her parents. Nothing has been brought out on record showing a conspiracy as alleged by the Appellant.
16. Perusal of the record shows that the Appellant was supplied with the copies of the inquiry report alongwith all the relevant documents while the penalty of dismissal from service was proposed to be imposed. Appellant has failed to indicate as to copies of which documents were not supplied to him at that time. The objection thus raised by him is devoid of merits.
17. It is not the case of the Appellant that the penalty of dismissal from service is disproportionate to the misconduct proved. The Appellant has failed to establish that the domestic inquiry suffered from any illegality or even an irregularity.
18. For the aforesaid reasons, I am of the considered view that the appeal is devoid of merits. The same is hence dismissed. …
15. Likewise, the learned Single Judge returned a categorical finding that the appellant was given equal opportunity of putting his case forward during the enquiry proceedings. Thus, the learned Single Judge has held as follows:
xxx xxx xxx
30. The Inquiry Officer took all necessary steps to ensure that fair inquiry proceedings are conducted before arriving at any conclusion and as such he ensured that both the parties are heard and are given equal opportunity of putting its case forward. After holding extensive proceedings, the Inquiry Officer was of the opinion that the charges against the petitioner herein were proved. While coming to this conclusion, he considered the charges framed against the petitioner, the documents necessary for adjudication, the witnesses produced, examined and cross-examined during the proceedings, including the girl students, her parents, the Vice Principal to whom the complaint was made, and all such witnesses found relevant, the written statement of the petitioner and only after such consideration, made the detailed final Inquiry Report.
xxx xxx xxx
16. It is well settled that Courts ought to refrain from interfering with the finding of facts recorded in the Departmental Enquiry, except where such findings are patently perverse or based on no evidence. (See: Union of India and Others Versus Subrata Nath, 2022 SCC OnLine SC 1617)
17. This Court finds no perversity in the findings as recorded in the Departmental Enquiry. Accordingly, this Court is in complete agreement with the findings arrived at by the Enquiry Officer and the punishment imposed by the Disciplinary Authority, as confirmed by the learned DST as well as the learned Single Judge. The appellant, being a school teacher, was required to maintain utmost dignity in dealing with his students. The relation between a teacher and a student is that of trust, guidance, protection and safeguarding. The appellant acted in an inappropriate manner which is totally unacceptable and unfit as a teacher. The charges against the appellant, which were duly proved during the course of the enquiry proceedings, were disgraceful and unpardonable.
18. In view of the aforesaid discussion, this Court finds no merit in the present appeal. The same is accordingly dismissed along with the pending applications.
ACTING CHIEF JUSTICE
MINI PUSHKARNA, J
DECEMBER 4, 2023/ak/au
LPA 759/2023 Page 10 of 10