POSH Updates: Enquiry necessary as per service rules if misconduct is proved by ICC

In the recent case of Dr. Vijayakumaran C.P.V. v. Central University of Kerala & Ors. J. C.A. No. 777/2020 (arising out of SLP (C)No. 28507/2018) a professor was accused of sexual harassment by 23 students and was wrongfully sacked by the Central University of Kerela without following the due procedure of law. 

Date of the judgement – 28.1.2020

Facts of the Case

The appellant (Dr. VijayaKumaran) was appointed as an Associate Professor in the Department of Hindi at Central University of Kerala on probation for a period of twelve months. Within a month of his appointment, there were complaints of sexual harassment made against the appellant by approximately 23 female students of his department. An Internal Complaints Committee (ICC) was constituted to investigate into the matter as per 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 ICC unanimously found the appellant guilty of acts of sexual harassment and recommended appropriate action to be taken by the Executive Council of the University. It is pertinent to note that, as per the rules of the university, any teacher/academic staff could be dismissed from service on grounds of misconduct only after reasonable opportunity has been given to provide his/her stance. 

On receipt of the report of the ICC, other documents and academic performance, the Executive Council of the University decided to terminate the service of the appellant. 

Consequently, the appellant challenged the order before the High Court of Kerala being ex facie stigmatic. However, Learned Single Judge said that it was a simpliciter termination order and there was no stigma attached to it. This view was affirmed by the Division Bench of the High Court and rejected the appeal. Subsequently, an appeal was filed before the Supreme Court. 

Read more: What We Learnt From Key Judgements In Sexual Harassment Cases Over The Years

Issue raised

The moot question involved in this appeal is: whether the order issued under the signatures of Vice¬Chancellor of the Central University of Kerala is simplicitor termination or ex-facie stigmatic?

Decision

The Apex Court held that the termination order was illegal and ex facie (on the face of it) stigmatic as it has been issued without subjecting the appellant to a regular inquiry as per the service rules. The court directed the University to set aside the termination order and directed the University to initiate a proper departmental or regular inquiry as per the service rules. 

Read more: High Court Imposed Hefty Cost Of Rs. 50,000 On Woman For False Complaint Of Sexual Harassment

Reasoning

The order cannot be construed as an order of termination simpliciter because the foundation of the termination order was merely the report of IC and the decision of the Executive Council without a proper formal enquiry under service rules. The court observed,

“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. 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. As a matter of fact, the Internal Complaints Committee had recommended proceeding 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.”

Section 13 of the POSH Act categorically states that if the ICC concludes that allegations against the accused have been proved then the employer is required to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules. Such a formal enquiry or departmental action as per service rules is indispensable so as to enable the employee concerned to vindicate his position and establish his innocence.

Read more: Straightaway Imposition Of Punishment On The Basis Of ICC Findings Not Tenable Being Violative Of Natural Justice

In cases where a probationer has been proven guilty of acts of misconduct i.e. sexual harassment by the ICC then appropriate action needs to be taken as per service rules, wherever applicable.

Accordingly, any termination on grounds of misconduct is stigmatic and not simpliciter. Therefore proper disciplinary inquiry was needed to be conducted. In this case, termination of service of such probationer without departmental enquiry was found to be illegal.

(Author: Vanita Bhatnagar is a Lawyer and curates content for Ungender Legal Advisory.)

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