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In the presence of evidence the court cannot exercise power as an Appellate court

Diganta Paul ,
  04 September 2012       Share Bookmark

Court :
HIGH COURT OF DELHI
Brief :
The appellant was employed as a Physical Education Teacher with the respondent No.3 School since 04.07.1983 and was granted a PGT scale with effect from 01.08.2001. He was on 23.07.2008 charged with having committed gross misconduct by giving corporal (physical) punishment to the students and having committed sexual abuse by physically touching the body of the girl students. An inquiry was conducted. The inquiry report, though found the appellant guilty of having committed misconduct by giving corporal punishment to three girl students of Class VIII on 25.04.2008 amounting of cruelty towards students and contravention of Sub-Clause (xviii) of Clause (b) of Sub-rule 1 of Rule 123 of The Delhi School Education Rules, 1973, held no case of sexual harassment to have been made out. The Disciplinary Authority of the School, as aforesaid vide order dated 02.03.2009 meted out the punishment of removal from service not amounting to disqualification for future employment. The appellant preferred an appeal under Section 8 of the Delhi School Education Act, 1973 to the Tribunal which was dismissed vide order dated 27.04.2011
Citation :
LPA No.562/2012 % KISHORE GULERIA ....Appellant Through: Mr. Jagat Arora & Mr. Amit Bajaj, Advs. Versus DIRECTOR OF EDUCATION & ORS. ..... Respondents Through: Ms. Shobhana Takiar, Adv. for R-1. Mr. Abhijat, Adv. for R-3 to 5

 

* IN THE HIGH COURT OF DELHI AT New Delhi

 

Date of decision: 13th August, 2012

 

+ LPA No.562/2012 % KISHORE GULERIA ....Appellant

Through: Mr. Jagat Arora & Mr. Amit Bajaj, Advs.

 

Versus

 

DIRECTOR OF EDUCATION & ORS. ..... Respondents

Through: Ms. Shobhana Takiar, Adv. for R-1. Mr. Abhijat, Adv. for R-3 to 5.

 

CORAM:-

 

HON’BLE THE ACTING CHIEF JUSTICE

HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW

 

RAJIV SAHAI ENDLAW, J.

 

1. This intra-court appeal impugns the judgment dated 03.07.2012 of the learned Single Judge dismissing W.P.(C) No.5765/2011 preferred by the appellant. The said writ petition was preferred impugning the order dated 27.04.2011 of the Delhi School Tribunal dismissing the appeal preferred by the appellant against the order dated 02.03.2009 of the Disciplinary Authority of the respondent No.3 New Era Public School, New Delhi awarding the penalty of, removal from service which shall not be disqualification for future employment in any recognized private school, to the appellant. The counsel for the respondent No.3 School appears on advance notice.  

 

2. The appellant was employed as a Physical Education Teacher with the respondent No.3 School since 04.07.1983 and was granted a PGT scale with effect from 01.08.2001. He was on 23.07.2008 charged with having committed gross misconduct by giving corporal (physical) punishment to the students and having committed sexual abuse by physically touching the body of the girl students. An inquiry was conducted. The inquiry report, though found the appellant guilty of having committed misconduct by giving corporal punishment to three girl students of Class VIII on 25.04.2008 amounting of cruelty towards students and contravention of Sub-Clause (xviii) of Clause (b) of Sub-rule 1 of Rule 123 of The Delhi School Education Rules, 1973, held no case of sexual harassment to have been made out. The Disciplinary Authority of the School, as aforesaid vide order dated 02.03.2009 meted out the punishment of removal from service not amounting to disqualification for future employment. The appellant preferred an appeal under Section 8 of the Delhi School Education Act, 1973 to the Tribunal which was dismissed vide order dated 27.04.2011.

 

3. The learned Single Judge, finding that the appellant in his explanation dated 03.05.2008 had admitted the incident and that he should have restrained himself and had tendered apology, dismissed the petition holding that this Court exercising powers of judicial review would not normally substitute its own conclusion on penalty and impose some other penalty unless it shocks the conscience of the Court. The learned Single Judge has further observed that corporal punishment is not only barred by law but also inhuman and thus held the punishment to be not shocking the conscience of the Court.  

 

4. The counsel for the appellant has raised two arguments before us. Firstly, that the punishment is disproportionate to the misconduct. It is contended that the appellant’s 25 years of unblemished service has not been given due regard. Secondly, it is contended that the requisite approval of the Directorate of Education was not taken, neither for suspending the appellant nor for meting out the punishment aforesaid.

 

5. As far as the second of the aforesaid arguments is concerned, the respondent No.3 is an unaided School. The Division Bench of this Court in Kathuria Public School Vs. Director of Education 113 (2004) DLT 703 has held that such approval is not required to be taken by an unaided School. The Full Bench of this Court in judgment dated 27.08.2010 in O.Ref.1/2010 titled Presiding Officer, Delhi School Tribunal Vs. GNCTD has not disturbed this part of Kathuria Public School supra though has overruled the Division Bench qua the matters in which the appeal can be preferred to the Tribunal. The counsel for the appellant is also not able to contend otherwise. No approval of the Directorate of Education was thus required.

 

6. As far as proportionality is concerned, the learned Single Judge has correctly applied the law in this regard. Considering the nature of the charge of which the appellant has been found guilty, the possibility of continuing the appellant in the School did not exist. The School cannot afford to have a teacher on its staff in whom the management and the students and their parents have lost confidence. We are therefore unable to agree that a lesser punishment whereunder the appellant would have continued in employment could have been meted out in the facts of the present case.

 

7. Faced with the aforesaid, the counsel for the appellant has argued that though three girl students had examined themselves in support of the charges against the appellant, as many as six students had deposed in his favour.

8. The counsel for the respondent No.3 School points out that even the learned Single Judge has issued notice of the writ petition confined to the aspect of proportionality and this argument is now not open to the appellant.

9. Be that as it may, we are of the view that it is not for this Court in exercise of powers of judicial review to weigh the evidence. Once it is found that there is some evidence on record and the case is not of the findings being perverse, this Court cannot exercise powers as an Appellate Court.

10. We therefore do not find any merit in this appeal and dismiss the same. No costs.

11. The counsel for the appellant at this stage states that even the legal dues of the appellant have not been released.

12. The counsel for the respondent No.3 School has fairly stated that if there are any admitted dues, upon the appellant approaching the respondent No.3 School, the same shall be released.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE

 
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Published in Civil Law
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