Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 777 OF 2020
(arising out of SLP(C) No. 28507/2018)
Dr. Vijayakumaran C.P.V. … Appellant(s)
Versus
Central University of Kerala & Ors. …Respondent(s)
J U D G M E N T
A. M. KHANWILKAR, J.
1. Leave granted.
2. The moot question involved in this appeal is: whether the order
issued under the signatures of ViceChancellor of the Central
University of Kerala (respondent No. 1), dated 30.11.2017 is
simplicitor termination or exfacie 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
Signature Not Verified
Digitally signed by
CHARANJEET KAUR
Date: 2020.01.28
14:09:42 IST
Reason:
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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
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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 wholetime teacher of
the University and unless the contractisterminated 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 ViceChancellor 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 shall
not be entitled to remove a teacher or a member of the
academic staff except for good cause and after giving
three months notice in writing or on payment of three
months salary in of notice.
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(v) No teacher or a member of the academic staff
shall be removed under clause (ii) or under clause
(iii) until she has been given a reasonable
opportunity of showing cause against the addition
proposed to be taken against her.
(vi) The removal of a teacher or a member of the
academic staff shall require a twothirds majority
of the numbers of the executive council present
and voting.
(vii) The removal of a teacher or a member of the
academic staff shall take effect from the date on
which the order of the removal is made.
Provided that where a teacher or a member of the
academic staff is under suspension at the time of
removal, the removal shall take effect from the date
on which she was placed under suspension.
8. Any dispute arising, out of this contract shall be
settled in accordance with the provisions of the Central
University of Kerala.”
(emphasis supplied)
4. After being appointed as Associate Professor in the Department
of Hindi with effect from 12.6.2017, the appellant assumed office.
But soon thereafter, 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. It is not necessary for us to highlight the grievance(s) set
out in the said complaints. As a consequence of the stated
complaints, the respondent No. 1 – University had no option but to
constitute an Internal Complaints Committee in terms of the
statutory regulations being University Grants Commission
(Prevention, Prohibition and Redressal of Sexual Harassment of
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Women Employees and Students in Higher Educational Institutions)
Regulations, 2015 (for short, ‘the 2015 Regulations’). Regulation 5
thereof sets out responsibilities of the Internal Complaints Committee
and the process of conducting inquiry by the Committee is predicated
in Regulation 8, which includes submission of inquiry report with its
findings and recommendations to the Executive Authority of the
respondent No. 1 – University. The stated Committee accordingly
submitted its inquiry report with findings and recommendations. The
operative part of that report reads thus:
“…………….
In view of all the facts above, it appears to the
Committee that the complaint is genuine and
consistent and it is improbable that all eighteen
students of a batch (complainants) could be influenced
to fabricate an allegation against the accused by the
University authorities. The possibility of any such
interventions was categorically denied by the
complainants. The evidences against the accused, both
verbal as well as written statements are strong and
authentic, and the accused failed to establish his
innocence during the investigation process. The
Committee unanimously feels that the accused had
committed sexual offences against girl students
spoiling the entire academic atmosphere in the
department and as well in the campus as a whole We
feel that this can affect the reputation of the
University.
The committee further would like to emphasis on
ensuring fearless learning environment for the woman
students. Irrespective of possible positive decision if
any in favour of the accused, the committee
recommends that the accused should not be allowed to
engage the classes and evaluation duties of the current
Sem 1 and Sem 3 batches of the Hindi department.
All the evidences and conclusion are hereby submitted
by the Committee before the Hon, VC for further
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actions. (The minutes of the committee meetings and
the voice records of the statements are already
submitted with the interim report and hence not
added this time.”
This report was taken up for consideration by the Executive Council
of the respondent No. 1 – University on 30.11.2017. The relevant
portion of the decision taken by the Executive Council reads thus:
“………….
The Hindi Department is only having these two
batches of students. The accused is presently aged 62.
He had committed sexual misconduct with the girl
students of his daughter’s age and the same has been
convincingly established in the report of the Internal
Complaints Committee. Dr. C.P.V. Vijayakumaran, a
probationer committed serious misconduct and
brought disrepute to the University apart from
vitiating the academic atmosphere at the University.
He has been drawing salary, without any academic
work w.e.f. 19 September 2017 due to the complaints
and indefinite boycott of classes by the I Semester and
III Semester students. The Executive Council has also
examined the academic performance of Dr. C.P.V.
Vijya Kumaran from the date of appointment.
Decision: On scrutiny of report by the Internal
Complaints Committee, other documents and
academic performance it is felt that performance of Dr.
C.P.V. Vijaya Kumaran on probation is not suitable for
continuation and confirmation in this University and
therefore it is resolved to terminate the services
forthwith. The ViceChancellor is authorized to issue
orders accordingly…….”
5. From the perusal of the termination order dated 30.11.2017
issued by the ViceChancellor, it is evident that the same was issued
in the backdrop of the Internal Complaints Committee report. The
opening part of the order itself mentions that on scrutiny of report by
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the Internal Complaints Committee, other documents and academic
performance, the Executive Council in its meeting held on
30.11.2017, decided to take the decision to terminate the services of
the appellant forthwith.
6. The appellant had assailed the impugned termination order
dated 30.11.2017 being exfacie stigmatic. The learned single Judge
of the High Court of Kerala at Ernakulam (for short, ‘the High Court’)
vide judgment and order dated 30.1.2018 in Writ Petition (Civil) No.
39013/2017, however, construed the same as one of termination
simplicitor. The Division Bench of the High Court vide impugned
judgment and order dated 20.2.2018 in Writ Appeal No. 444/2018
has affirmed that view taken by the learned single Judge and rejected
the appeal preferred by the appellant.
7. Accordingly, the moot question before us is: whether the order
dated 30.11.2017 can be regarded as order of termination simplictor
or is exfacie stigmatic? Going by the tenor of the stated order, 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
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of mere unsatisfactory academic performance, the situation would
have been entirely different. The stated order not only adverts to the
report of the Internal Complaints Committee, but also the decision
taken by the Executive Council, which in turn highlights the fact that
the appellant had to face an inquiry before the Committee in reference
to the allegations of serious misconduct committed by him. Notably,
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.
8. It is wellestablished position that 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. A threeJudge
Bench of this Court in Indra Pal Gupta vs. Managing Committee,
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Model Inter College, Thora had occasion to deal with somewhat
similar situation. In that case, the order of termination referred to
the decision of the Managing Committee and subsequent approval by
the competent authority as the basis for termination. The resolution
of the Managing Committee in turn referred to a report of the
Manager which indicated serious issues and that was made the basis
for the decision by the Committee to terminate probation of the
employee concerned. Relying on the aforementioned decision, the
Court in
Dipti Prakash Banerjee vs. Satyendra Nath Bose
2
National Centre for Basic Sciences, Calcutta & Ors. , observed as
follows:
“ 32. The next question is whether the reference in
the impugned order to the three earlier letters
amounts to a stigma if those three letters
contained anything in the nature of a stigma even
though the order of termination itself did not
contain anything offensive .
33. Learned counsel for the appellant relies upon
Indra Pal Gupta v. Managing Committee, Model Inter
College (1984) 3 SCC 384 decided by a threeJudge
Bench of this Court. In that case, the order of
termination of probation, which is extracted in the
judgment, reads as follows: (SCC p. 386, para 1)
“With reference to the above (viz. termination of
service as Principal), I have to mention that in
view of Resolution No. 2 of the Managing
Committee dated April 27, 1969 (copy enclosed)
and subsequent approval by the D.I.O.S.,
Bulandshahr, you are hereby informed that your
1 (1984) 3 SCC 384
2 (1999) 3 SCC 60
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service as Principal of this Institution is
terminated….”
Now the copy of the resolution of the Managing
Committee appended to the order of termination stated
that the report of the Manager was read at the meeting
and that the facts contained in the report of the
Manager being serious and not in the interests of the
institution, that therefore the Committee unanimously
resolved to terminate his probation. The report of the
Manager was not extracted in the enclosure to the
termination order but was extracted in the counter
filed in the case and read as follows: (SCC p. 388, para
3)
“It will be evident from the above that the
Principal’s stay will not be in the interest of the
Institution. It is also evident that the
seriousness of the lapses is enough to justify
dismissal but no educational institution should
take all this botheration. As such my suggestion
is that our purpose will be served by termination
of his services. Why, then, we should enter into
any botheration. For this, i.e., for termination of
his period of probation, too, the approval of the
D.I.O.S. will be necessary. Accordingly, any
delay in this matter may also be harmful to our
interests.
Accordingly, I suggest that instead of taking any
serious action, the period of probation of Shri
Inder Pal Gupta be terminated without waiting
for the period to end.”
It was held by Venkataramiah, J. (as he then was)
(p. 392) that the letter of termination referred to
the resolution of the Managing Committee, that
the said resolution was made part of the order as
an enclosure and that the resolution in its turn
. A copy of the
referred to the report of the Manager
Manager’s report had been filed along with the counter
and the said report was the “foundation”.
Venkataramiah, J. (as he then was) held that the
Manager’s report contained words amounting to a
stigma. The learned Judge said: “This is a clear
case where the order of termination issued is
merely a camouflage for an order imposing a
penalty of termination of service on the ground of
misconduct …”, that these findings in the
Manager’s report amounted to a “mark of disgrace
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or infamy” and that the appellant there was visited
with evil consequences . The officer was reinstated
with all the benefits of back wages and continuity of
service.
34. It will be seen from the above case that the
resolution of the Committee was part of the
termination order being an enclosure to it. But the
offensive part was not really contained in the order of
termination nor in the resolution which was an
enclosure to the order of termination but in the
Manager’s report which was referred to in the
enclosure. The said report of the Manager was placed
before the Court along with the counter. The
allegations in the Manager’s report were the basis for
the termination and the said report contained words
amounting to a stigma. The termination order was, as
stated above, set aside.
35. The above decision is, in our view, a clear
authority for the proposition that 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 or in its annexures.
Obviously, such a document could be asked for or
called for by any future employer of the
probationer. In such a case, the order of
termination would stand vitiated on the ground
that no regular enquiry was conducted. We shall
presently consider whether, on the facts of the case
before us, the documents referred to in the impugned
order contain any stigma.”
(emphasis supplied)
9. In the case of Pavanendra Narayan Verma vs. Sanjay
3
, the Court observed thus:
Gandhi PGI of Medical Sciences & Anr.
“ 21. 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 fullscale formal enquiry ( b ) into
3 (2002) 1 SCC 520
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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. As a matter
of fact, the Internal Complaints Committee had recommended to
proceed against the appellant appropriately but the Executive Council
proceeded under the mistaken belief that in terms of clause 7 of the
contract, it was open to the Executive Council to terminate the
services of the appellant without a formal regular inquiry as per the
service rules. Indisputably, in the present case, the Internal
Complaints Committee was constituted in reference to the complaints
received from the girl students about the alleged misconduct
committed by the appellant, which allegations were duly inquired into
in a formal inquiry after giving opportunity to the appellant and
culminated with the report recording finding against the appellant
with recommendation to proceed against him.
10. Upon receipt of complaints from aggrieved women (girl students
of the University) about the sexual harassment at workplace (in this
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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 (for short, ‘the 2013 Act’). 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 2015
Regulations. 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
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to enable the employee concerned to vindicate his position and
establish his innocence. We say no more.
11. A priori, we have no hesitation in concluding that the impugned
termination order dated 30.11.2017 is illegal being exfacie 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, in our opinion, a matter to be taken forward
by the authority concerned in accordance with law. We do not intend
to issue any direction in that regard keeping in mind the principle
underlying the exposition of the Constitution Bench in
Managing
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Director, ECIL, Hyderabad & Ors. vs. R. Karunakar & Ors. . In
that case, the Court was called upon to decide as to what should be
the incidental order to be passed by the Court in case after following
necessary procedure, the Court/Tribunal was to set aside the order of
punishment. The Court observed thus:
“ 31. ……………….
Where after following the above procedure, the
Court/Tribunal sets aside the order of punishment,
the proper relief that should be granted is to direct
reinstatement of the employee with liberty to the
4 (1993) 4 SCC 727
15
authority/management to proceed with the
inquiry, by placing the employee under suspension
and continuing the inquiry from the stage of
furnishing him with the report. The question
whether the employee would be entitled to the
backwages and other benefits from the date of his
dismissal to the date of his reinstatement if
ultimately ordered, should invariably be left to be
decided by the authority concerned according to
law, after the culmination of the proceedings and
depending on the final outcome. If the employee
succeeds in the fresh inquiry and is directed to be
reinstated, the authority should be at liberty to
decide according to law how it will treat the period
from the date of dismissal till the reinstatement
and to what benefits, if any and the extent of the
benefits, he will be entitled . The reinstatement made
as a result of the setting aside of the inquiry for failure
to furnish the report, should be treated as a
reinstatement for the purpose of holding the fresh
inquiry from the stage of furnishing the report and no
more, where such fresh inquiry is held. That will also
be the correct position in law.”
(emphasis supplied)
Following the principle underlying the above quoted exposition, we
proceed to hold that 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.
12. Accordingly, this appeal partly succeeds. We set aside the
impugned judgments and orders dated 30.1.2018 and 20.2.2018
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passed by the High Court including the order of termination dated
30.11.2017 issued under the signatures of the ViceChancellor of the
respondent No. 1 – University; and instead direct reinstatement of the
appellant and leave 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.
13. The appeal is disposed of in the above terms. There shall be no
order as to costs. Pending interlocutory applications, if any, shall
stand disposed of.
................................., J
(A.M. Khanwilkar)
................................., J
(Hemant Gupta)
................................., J
(Dinesh Maheshwari)
New Delhi;
January 28, 2020.