1. Appointment of a probationer — Complaints of sexual harassment — Inquiry by Internal Complaints Committee — Termination based on inquiry report and academic performance. (Para 3 , 4 , 5 )
Back
Next 
2020 Supreme(SC) 79
SUPREME COURT OF INDIA
A.M. Khanwilkar, Hemant Gupta, Dinesh Maheshwari, JJ.
Dr. Vijayakumaran C.P.V. – Appellant
Versus
Central University of Kerala & Ors. – Respondents
Civil Appeal No. 777 OF 2020 (arising out of SLP(C) No. 28507 OF 2018)
Decided On : 28-01-2020
Important Points
IMPORTANT POINTS
An employee found guilty by Internal Complaints Committee should not be let off with termination simpliciter.
When an employee is found guilty by Internal Complaints Committee, Competent authority is required to conduct a regular departmental enquiry into the misconduct.
An employee found guilty by Internal Complaints Committee should not be let off with termination simpliciter.
When an employee is found guilty by Internal Complaints Committee, Competent authority is required to conduct a regular departmental enquiry into the misconduct.
Subject
Employment Law - Termination of Employment
Act Referred
Headnote
(a) Service law - Termination - Whether termination simpliciter or stigmatic - Order passed on report of Internal Complaints Committee and approval of Executive Council - Complaints Committee holding full scale enquiry into complaints by girl students finding the appellant guilty - Termination order held stigmatic. (Para 8, 9)
(b) University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015 - Regulations 5 and 8 r/w Section 9 and 11, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 - Complaints Committee finding appellant guilty - Obligatory on University to conduct departmental enquiry before terminating him - Employee should not be allowed to avail benefit of simple termination in such cases. (Para 10)
(c) Service law - Administration of justice - On quashing of order of termination employee stands reinstated - However, as the University is required to conduct full departmental enquiry, question of back wages left on outcome of the enquiry. (Para 11, 12)
Facts of the case:
A formal written contract was entered into between the appellant and the respondent No. 1 – University and the appellant assumed office on 12.6.2017.
A complaint was filed against him by a third semester student on 13.7.2017 followed by two other complaints dated 14.7.2017 filed by 16 students and 29.8.2017 filed by 23 students. University constituted an Internal Complaints Committee in terms of the statutory regulations. The stated Committee submitted its inquiry report with findings and recommendations.
The appellant was terminated.
The moot question involved in this appeal is: whether the order issued under the signatures of Vice-Chancellor of the Central University of Kerala, dated 30.11.2017 is simplicitor termination or ex-facie stigmatic?
Finding of the Court:
An employee found guilty by Internal Complaints Committee should not be let off with termination simpliciter.
Result: Appeal partly allowed.
Legal Category Hierarchy
Advocates Appeared:
For the Petitioner(s):R. Basant, Resmitha R. Chandran, Biju Joseph, Manu, Pramod P., Advocates
For the Respondent(s):Vinay Navare, Nachiketa Joshi, Sajith Vishwanathan, Sucheta Joshi, Himadri Haksar, Vipul Tiwari, Advocates
For the Petitioner(s):R. Basant, Resmitha R. Chandran, Biju Joseph, Manu, Pramod P., Advocates
For the Respondent(s):Vinay Navare, Nachiketa Joshi, Sajith Vishwanathan, Sucheta Joshi, Himadri Haksar, Vipul Tiwari, Advocates
Table of Contents
2. Whether the termination order of a probationer is a termination simplicitor or an ex-facie stigmatic order requiring a regular departmental inquiry. (Para 2 , 6 )
3. Termination based on an inquiry report into misconduct is punitive; stigma may exist in documents referred to in the termination order. (Para 7 , 8 , 9 , 10 )
4. Termination is punitive if preceded by a formal enquiry into misconduct culminating in a finding of guilt, regardless of the order's form. (Para 9 )
5. Termination order set aside — Reinstatement directed — Decision on backwages and further departmental inquiry left to the competent authority. (Para 11 , 12 )
6. When is a probationer's termination order considered stigmatic even if the order itself contains no offensive language?
An order is stigmatic if the material amounting to stigma is contained in any document referred to in the termination order or its annexures, as such documents may be accessed by future employers and affect the incumbent's prospects. (Para 8 )
7. What is the legal test to determine if a termination order is punitive in substance?
A termination is punitive if three factors are present: a full-scale formal enquiry was conducted, the enquiry concerned allegations of moral turpitude or misconduct, and the process culminated in a finding of guilt. (Para 9 )
8. How should allegations of sexual harassment in higher educational institutions be handled regarding employment termination?
Complaints must be referred to the Internal Committee under the 2013 Act and 2015 Regulations. Given the serious nature of sexual harassment, a regular departmental inquiry is indispensable to allow the employee to vindicate their position. (Para 10 )
9. What is the appropriate relief when a punitive termination order is set aside due to procedural flaws?
The employee should be reinstated, but the authority may place them under suspension and proceed with a fresh inquiry. Entitlement to backwages and other benefits is decided by the authority based on the final outcome of the proceedings. (Para 11 )
JUDGMENT :
A. M. KHANWILKAR, J.
1. Leave granted.
2. The moot question involved in this appeal is: 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 ex-facie stigmatic? The said order reads thus : -
“Order
On scrutiny of report by the Internal Complaints Committee, other documents and academic performance, the Executive Council held on 30/11/2017 felt that the performance of Dr. C.P.V. Vijayakumaran on probation is not suitable for continuation and confirmation in this University and had resolved to terminate the services forthwith. It is ordered accordingly.”
3. Shorn of unnecessary details, on 5.6.2017, the respondent No. 1 – University sent an offer letter to the appellant for being appointed to the post of Associate Professor in the Department of Hindi. This letter stated that he would be on probation for a period of twelve months from the date of joining and governed by the rules and regulations of the Central University of Kerala for teachers and other academic staff, orders issued by the University/University Grants Commission (UGC)/Government of India from time to time and the code of conduct applicable to all the employees of the respondent No. 1 – University etc. A formal written contract was entered into between the appellant and the respondent No. 1 – University on 12.6.2017, restating the terms and conditions referred to in the offer letter. The relevant clauses of the contract read thus:
“2. (a) The teacher shall be on probation for a period of 12 months which may be extended by a further period of 12 months. The total period of probation shall in no case exceed twenty four months.
(b) The case of each teacher shall be placed before the Executive Council for confirmation soon after the expiry of the period of probation prescribed that is within 68 weeks. The decision of the Executive Council with regard to his/her confirmation or extension of his/her probation period, should be communicated to the teacher immediately.
(c) If the University is satisfied with the suitability of the teacher for confirmation he/she shall be confirmed on the post to which he/she was appointed at the end of the period of his/her probation.
(d) Where a teacher appointed on probation is found, during the period of probation, not suitable for holding that post or has not completed the period of probation whether extended or not, satisfactorily, the Executive Council may (i) if the appointment is by direct recruitment, terminate the teacher’s Service from the University without the notice (ii) if the appointment is by promotion, revert the incumbent to previous post held by him.
(e) That the said Teacher shall be a whole-time teacher of the University and unless the contract-is-terminated by the Executive Council or by the teacher as hereinafter provided shall continue in the service of the University until he/she complete the age of 65 years.”
xxx xxx xxx
7. It is further agreed that this engagement shall not be liable to be terminated by the University except on the grounds specified and in accordance with the procedure laid down in clauses (i) to (vi). Reproduced below:
(i) Where there is an allegation of misconduct against a teacher or a member of the academic staff the Vice-Chancellor may if he thinks fit by order in writing, place the teacher under suspension and shall forthwith report to the Executive Council the circumstances in which the order was made:
(ii) Provided that the Executive Council may if it is of the opinion that the circumstances of the case do not warrant the suspension of the teacher or the member of the academic staff revoke that order.
(iii) Notwithstanding anything contained in the terms of her contract of service or of her appointment, the executive council shall be entitled to remove a teacher or a member of the academic staff on the ground of misconduct.
(iv) Save as aforesaid, the Executive Council sh
