Recently, in a judgment dated 28th January, 2020, the Supreme Court (“SC“), in the case of Vijayakumaran C.P.V. (“Appellant”) v/s Central University of Kerala & Ors, (“Respondent”), said that since the report of internal committee (“IC”) confirming allegations of sexual harassment against Appellant formed basis of his termination, the order of termination will be considered to be ex-facie stigmatic and therefore, Respondent would be required to do further inquiry against Appellant as per service rules before taking such action.
The background in this matter is that the Appellant was appointed as an Associate Professor in 2017 and his letter of appointment stated that he shall be governed by Respondent’s Rules and Regulations, orders issued by the University / University Grants Commission (UGC) / Government of India and the code of conduct applicable to all employees. In July 2017, a complaint of sexual harassment was filed against him, followed by two more complaints filed by 16 students and 23 students respectively. Accordingly, an IC was constituted which, in its report, found the Appellant guilty. The IC submitted their report and recommended that Appellant should not be allowed to engage the classes and evaluation duties and Executive Council (“EC”) should take further action as per service rules. EC passed an order in November 2017 (“Termination Order”) terminating the Appellant.
The Appellant reached out to the High Court of Kerala at Ernakulam and said that Termination Order is ex-facie stigmatic. The High Court dismissed his contentions and therefore, Appellant, approached the Supreme Court. As a result, the question before SC was (1) whether the Termination Order was simplicitor termination or ex-facie stigmatic and (2) whether termination was valid.
Regarding the Termination Order being simple or ex-facie stigmatic, the SC observed that, “The opening part of the Termination Order mentioned that on scrutiny of IC’s report, 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.” In this regard it held that, “Going by the tenor of the stated order, it is incomprehensible as to how the same can be construed as termination simplicitor 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 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.”It said 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.”
On whether the termination is valid. It held in the negative and said that, “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.”
PAW Comment: It is absolutely correct that parties should be given an equal opportunity to be heard and defend their case. There have been several cases in the past that explain that the right to examine and cross-examine should be given by IC to parties so that they get opportunity to be heard and defend themselves. The law also states that IC has to do inquiry as per service rules (where applicable). Hence, keeping in mind the law, it is unclear how the inquiry as per service rules, as held by SC in this case is to be conducted, who should be conducting it, what is the value of IC’s inquiry and report in such cases, whether witnesses and parties would be required to be called again, IC’s report will be referred to etc. Unfortunately, SC has not made any comments or observations on these aspects in this judgment.
– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner POSH at Work