Service Law:
Termination of service – Of University Associate Professor on probation – Pursuant to report of Internal Complaints Committee which was constituted on complaints regarding sexual harassment of female students – Appellant assailed the termination order on the ground that it was stigmatic – Single Judge as well as Division Bench of High Court construed the termination order as termination simplcitor – Appeal to Supreme Court: Held: From the tenor of the termination order it is evident that it is ex- facie stigmatic and punitive – Such an order could be issued only after subjecting the incumbent to a regular inquiry as per service Rules – Therefore, the termination order is illegal – Incumbent is directed to be reinstated – University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2005 – Regulations 5 and 8. Disposing of the appeal, the Court
HELD: 1. Going by the tenor of the order of termination, it is incomprehensible as to how the same can be construed as termination simplictor, when it has made the report of the inquiry conducted by the Internal Complaints Committee and the decision of the Executive Council dated 30.11.2017 as the foundation, in addition to the ground of academic performance. Had it been a case of mere unsatisfactory academic performance, the situation would have been entirely different. The appellant has been subjected to a formal inquiry before the Committee constituted under statutory regulations to inquire into the allegations bordering on moral turpitude or misconduct committed by the appellant and that inquiry culminated in a finding of guilt against the appellant with recommendation of the Executive Council to proceed against the appellant as per the service rules. In such a situation, it is unfathomable to construe the order as order of termination simplicitor. [Para 7][382-F-H; 383-A-B]
2. The material which amounts to stigma need not be contained in the order of termination of the probationer, but might be contained in “any document referred to in the termination order”. Such reference may inevitably affect the future prospects of the incumbent and if so, the order must be construed as exfacie stigmatic order of termination. [Para 8][383-C-D]
3.1 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. In the present case, all the three elements are attracted, as a result of which it must follow that the stated order is ex-facie stigmatic and punitive. Such an order could be issued only after subjecting the incumbent to a regular inquiry as per the service rules. [Para 9][385-G-H; 386-A-B]
4. Upon receipt of complaints from aggrieved women (girl students of the University) about the sexual harassment at workplace (in this case, University campus), 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. Upon receipt of such complaint, 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. The procedure for conducting such inquiry has also been amplified in the University Grants Commission (Prevention, Prohibition and Rederessal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations 2015. Thus understood, it necessarily follows that the inquiry is a formal inquiry required to be undertaken in terms of the 2015 Regulations. The allegations to be inquired into by such Committee being of “sexual harassment” defined in Section 2(n) read with Section 3 of the 2013 Act and being a serious matter bordering on criminality, it would certainly not be advisable to confer the benefit on such employee by merely passing a simple order of termination. Such complaints ought to be taken to its logical end by not only initiating departmental or regular inquiry as per the service rules, but also followed by other actions as per law. 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. [Para 10][386-E-H; 387-A]
5. The impugned termination order dated 30.11.2017 is illegal being ex-facie stigmatic as it has been issued without subjecting the appellant to a regular inquiry as per the service rules. On this conclusion, the appellant would stand reinstated, but whether he should be granted backwages and other benefits including placing him under suspension and proceeding against him by way of departmental or regular inquiry as per the service rules, is, a matter to be taken forward by the authority concerned in accordance with law. [Para 11][387-B-C]
6. Even though the impugned order of termination dated 30.11.2017 is set aside in terms of this judgment, as a result of which the appellant would stand reinstated, but at the same time, due to flawed approach of the respondent No. 1 – University, the entitlement to grant backwages is a matter which will be subject to the outcome of further action to be taken by the University as per the service rules and in accordance with law. [Para 11] [388-B-C]
7. The impugned judgments and orders dated 30.1.2018 and 20.2.2018 passed by the High Court including the order of termination dated 30.11.2017 issued under the signatures of the Vice-Chancellor of the respondent No. 1 – University are set aside instead reinstatement of the appellant is directed and the question regarding backwages, placing him under suspension and initiating departmental or regular inquiry as per the service rules, to be taken forward by the authority concerned in accordance with law is left. [Para 12][388-D-E]
Indra Pal Gupta v. Managing Committee, Model Inter College, Thora (1984) 3 SCC 384 : [1984] 3 SCR 752; Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta & Ors. (1999) 3 SCC 60 : [1999] 1 SCR 532; Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences & Anr. (2002) 1 SCC 520 : [2001] 5 Suppl. SCR 41; Managing Director, ECIL, Hyderabad & Ors. v. R. Karunakar & Ors. (1993) 4 SCC 727 : [1993] 2 Suppl. SCR 576 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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