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In case of “Sexual harassment”not only departmental or regular inquiry as per the service rules shal

Dr. Vijayakumaran C.P.V vs. Central University of Kerala and ors., Civil Appeal No. 777 of 2020, arising out of SLP No. 28507/2018- January 28, 2020.

The Supreme Court Bench comprising of Justice A.M. Khanwilkar, Justice Hemant Gupta and Justice Dinesh Maheswari pronounced the following judgment and disposed of the appeals.

Issue: Whether the order issued under the signatures of Vice Chancellor of the Central University of Kerala (respondent No. 1), dated 30.11.2017 is simplicitor termination or exfacie stigmatic?

Facts: The appellant is a professor in probation in the Central University of Kerala. A formal contract was entered between the university and the appellant restating the terms and conditions referred to in the offer letter. Within a month of appointment, there were various complaints made against the appellant. The respondent No.1 – University had to constitute an internal complaints committee in terms of the statutory regulations of the UGC (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations 2015. The committee wanted to submit an inquiry report. The order itself mentions that on scrutiny of the report of the committee, other documents and academic performance, the Executive Council decided to terminate the services of the appellant. The order also stated that the appellant had to face an inquiry before the committee. If found guilty, then action can be taken following the service rules. In such a situation, the order cannot be construed as an order of terminator simplicitor.

The appellant had assailed the order to be exfacie stigmatic. The Division Bench rejected the appeal. The appellant has been subjected to a formal inquiry before the committee giving an opportunity to the him. The complaints committee initiated an inquiry and found that the complaints made were genuine. The report of the committee was submitted to the Vice Chancellor and he order for the termination of the appellant. Sexual harassment according to Section 2(n) of the 2013 Act is a serious matter bordering on criminality and it is not advisable to confer the benefit by mere passing of an order of termination. It was mistaken by the Executive Council that it was open for it to terminate the appellant without formal inquiry as per the service rules. An opportunity was to be given to the appellant. The university has followed the service rules, it should also have followed the actions as per law. Therefore, a formal inquiry should have been conducted.

 One of the judicially evolved tests to determine whether   in   substance   an   order   of   termination   is punitive is to see whether prior to the termination there  was (a)  a full scale formal  enquiry  (b)  into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld. In the present case, all the three elements are attracted, as a result of which it must follow that the stated order is ex­facie stigmatic and punitive. Such an order could be issued only after subjecting the incumbent to a regular inquiry as per the service rules. Upon receipt of complaints from aggrieved women about the sexual harassment at workplace it was obligatory on the Administration to refer   such   complaints   to   the   Internal   Committee   or   the   Local Committee, within the stipulated time period as predicated in Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. An inquiry is required to be undertaken by the Internal Committee or the Local Committee in conformity with the stipulations in Section 11 of the 2013 Act.In such cases, a regular inquiry or departmental action as per service rules is also indispensable so as to enable the employee concerned to vindicate his position and establish his innocence.

The Court held that the impugned termination order is ex facie stigmatic. As the approach of the University was flawed, the entitlement to grant backwages should be made in accordance with law. Therefore, the appeal is partly allowed initiating departmental or regular inquiry as per the service rules.

– Vydurya Selvi Baskaran

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