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2012 Supreme(Del) 1649
IN THE HIGH COURT OF DELHI AT NEW DELHI
SURESH KAIT, J.
KISHOR GULERIA - Petitioner
Versus
THE DIRECTOR OF EDUCATION DIRECTORATE OF EDUCATION & ORS - Respondents
W.P.(C) 5765/2011
Decided on : 03rd July, 2012
For the Petitioner: Mr. Jagat Arora, Adv.
For the Respondents:Ms. Shobhana Takiar, Adv. for respondent nos.1 & 2. Ms. Fareha Ahmad Khan, Adv. for respondent nos.3 to 5.
The main legal point established in the judgment is the prohibition of corporal punishment, in line with the Convention on the Rights of the Child and the National Policy on Education, and the court's emphasis on proportionality in administrative law.
Headnote:
Corporal Punishment - Employment Dispute - DSER, 1973 Rule 123, Indian Penal Code - Summary of Acts and Sections: DSER, 1973 Rule 123, Indian Penal Code - The court discussed the petitioner's act of corporal punishment, the relevant provisions of DSER, 1973 Rule 123, and the Indian Penal Code. The court also referenced the landmark judgment in Civil Writ Petition 196/1998 Parents Forum for Meaningful Education vs. Union of India, which struck down the provision of corporal punishment in DSER, 1973 Rule 37 (1)(a)(ii) and 4. The court emphasized the protection of children from physical or mental violence, in line with the Convention on the Rights of the Child and the National Policy on Education.
Fact of the Case:
The petitioner, a Physical Education Teacher, was accused of corporal punishment against students, leading to an employment dispute. The petitioner's explanation acknowledged the act and sought forgiveness. The court considered the petitioner's 25 years of service and unblemished record.
Finding of the Court:
The court found that the punishment awarded to the petitioner was not disproportionate, considering the charge against him. The court dismissed the petition, upholding the punishment given by the disciplinary authority.
Issues: The issues revolved around the petitioner's act of corporal punishment, the quantum of punishment, and the application of relevant legal provisions.
Ratio Decidendi: The court emphasized the protection of children from physical or mental violence, in line with the Convention on the Rights of the Child and the National Policy on Education. The court also highlighted the legal position on proportionality in administrative law and the role of the judiciary in reviewing penalties.
Final Decision: The court dismissed the petition, upholding the punishment given by the disciplinary authority.
SURESH KAIT, J.
1. Vide the instant petition, petitioner seeks setting aside the order dated 27.04.2011 passed by ld. Presiding Officer of Delhi School Tribunal whereby the appeal filed by the petitioner has been dismissed.
2. In brief, the facts of the case are that petitioner was working as a Physical Education Teacher (PET) in the New Era Public School, Mayapuri, New Delhi (hereafter referred to as the respondent School) since 04.07.1983. He was placed in the PGT Grade w.e.f 01.08.2001.
3. Article of Charge of committing gross misconduct specified in Rule 123 of DSER, 1973 and thus he acted in a manner of unbecoming of an employee of the School. The petitioner on 25.04.2008 punished the Students (Boys and Girls) of the School by way of slapping them on their body which tantamount to corporal (physical) punishment. The Provision of Corporation Punishment existing in Rule 37 (1)(a)(ii) and 4, DSER, 1973 was held void of law and hence struck down by this Court in its landmark judgment in Civil Writ Petition 196/1998 Parents Forum for Meaningful Education vs. Union of India.
4. The conduct of the petitioner was criminal in nature attracting Indian Penal Code as well as (i) petitioner committed gross misconduct by giving corporal (physical) punishment to the Students physically touching part of the girls’ body, which is prohibited and untimely tantamount to commit sexual abuse. He, thus, breached sub-clause (xvii) of Clause (n) of Sube Rule 1 of Rule 123 of DSER, 1973. (ii) He is also guilty of cruelty towards the students of the School thus acted contrary to the aspect of Sub-clause (xvii) of Clause (b) of Sub-clause of Rule 123 of DSER, 1973.
5. Thereafter, he was served Article of Charge (in detail) and the petitioner submitted an explanation dated 03.05.2008 which reads as under:-
“(a) This is to bring to your kind notice that last Friday i.e. 25.04.2008, I found a few students playing in TT Hall without the permission of any PET and violating the discipline of the School.
(b) In the heat of moment I gave them a slap each.
(c) I realize that I should have restrained myself.
(d) Madam, I tender an apology for the same and promise that such thing will not be repeated again.
(e) If it is repeated the disciplinary action should be taken against me.”
6. After considering the same, he was issued a memorandum dated 09.05.2008 to submit his representation so as to consider the same on merit which reads as under:-
“(a) The allegations as been raised in the memo under reply totally wrong and I deny these allegations specifically and in totality. I deny that I have slapped any girl student on her face that too mercilessly.
(b) On 25.04.2008, I was on round of the school for maintaining discipline and found some boys and girls standing and playing in the table tennis hall. When I enquired from them, I came to know that it was not their games period and it was also not the zero period.
(c) As such their presence in the table tennis hall is totally unauthorized and was a question of discipline in the school.
(d) I just with ANGRY MOOD announced there to them to leave the said hall immediately and directed them to move to their classes.
(e) Some of them followed it quickly and started running towards their classes, some of them were bit slow to act and I just gently slapped some these students who included both boys and girls on the back of their head to make them more fast but none of them was slapped on his/her face mercilessly with any intention to give him/her any physical punishment.”
7. On being filed the present petition, notice was issued by this court vide order dated 10.08.2011 confined to the question of quantum of punishment.
8. Ld. Counsel for the petitioner submits that the petitioner was removed from the service despite the fact that he put 25 years of service and has unblemished record. During this period, he received number of appreciation letters. He is an outstanding Coach of physical education. The enquiry Offi
