# DR. VIJAYAKUMARAN C.P.V v. CENTRAL UNIVERSITY OF KERALA & ORS

- **Citation:** [2020] 3 S.C.R. 374
- **Court:** Supreme Court of India
- **Decided:** 2020-01-28
- **Case number:** Civil Appeal No. 777 of 2020
- **Bench:** A. M. Khanwilkar, Hemant Gupta, Dinesh Maheshwari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-vijayakumaran-c-p-v-v-central-university-of-kerala-ors-34267
- **Pages:** 44

## Headnote

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
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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

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SUPREME COURT REPORTS
[2020] 3 S.C.R.
DR. VIJAYAKUMARAN C.P.V.
v.
CENTRAL UNIVERSITY OF KERALA & ORS.
(Civil Appeal No. 777 of 2020)
JANUARY 28, 2020
[A. M. KHANWILKAR, HEMANT GUPTA AND
DINESH MAHESHWARI, JJ.]
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
[2020] 3 S.C.R. 374
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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
DR. VIJAYAKUMARAN C.P.V. v. CENTRAL UNIVERSITY OF
KERALA & ORS.
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SUPREME COURT REPORTS
[2020] 3 S.C.R.
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]
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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.
Case Law Reference
[1984] 3 SCR 752
relied on.
Para 8
[1999] 1 SCR 532
relied on.
Para 8
[2001] 5 Suppl. SCR 41
relied on.
Para 9
[1993] 2 Suppl. SCR 576
relied on.
Para 11
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 777 of
2020.
From the Judgment and Order dated 20.02.2018 of the High Court
of Kerala at Ernakulam in WA. No. 444 of 2018 in WPC No. 39013 of
2017.
R. Basant, Sr. Adv., Ms. Resmitha R. Chandran, Subhas Chandran,
Biju Joseph, Pramod P., Advs. for the Appellant.
Vinary Navare, Sr. Adv., Nachiketa Joshi, Sajith Vishvanathan,
Ms. Sucheta Joshi, Ms. Himadri Haksar, Vipul Tiwari, Advs. for the
Respondents.
The Judgment of the Court was delivered by
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: -
DR. VIJAYAKUMARAN C.P.V. v. CENTRAL UNIVERSITY OF
KERALA & ORS.
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"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 6-8 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
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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 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.
(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.
DR. VIJAYAKUMARAN C.P.V. v. CENTRAL UNIVERSITY OF
KERALA & ORS. [A. M. KHANWILKAR, J.]
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(vi) The removal of a teacher or a member of the
academic staff shall require a two-thirds 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 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
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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 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
DR. VIJAYAKUMARAN C.P.V. v. CENTRAL UNIVERSITY OF
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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 Vice-Chancellor is authorized to issue orders
accordingly......."
5. From the perusal of the termination order dated 30.11.2017
issued by the Vice-Chancellor, 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 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 ex-facie 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 ex-facie 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 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
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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 well-established 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 three-Judge Bench of this Court
in Indra Pal Gupta vs. Managing Committee, Model Inter College,
Thora1 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 National Centre for Basic Sciences, Calcutta & Ors.2, 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 three-Judge 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)
1 (1984) 3 SCC 384
2 (1999) 3 SCC 60
DR. VIJAYAKUMARAN C.P.V. v. CENTRAL UNIVERSITY OF
KERALA & ORS. [A. M. KHANWILKAR, J.]
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"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 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 referred to the report of the Manager. A copy of the
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
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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 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
Gandhi PGI of Medical Sciences & Anr.3, the Court observed thus: -
"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 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
3 (2002) 1 SCC 520
DR. VIJAYAKUMARAN C.P.V. v. CENTRAL UNIVERSITY OF
KERALA & ORS. [A. M. KHANWILKAR, J.]
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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 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 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 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
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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. 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 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, 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 Director, ECIL, Hyderabad & Ors.
vs. R. Karunakar & Ors.4. 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 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 back-wages 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
4 (1993) 4 SCC 727
DR. VIJAYAKUMARAN C.P.V. v. CENTRAL UNIVERSITY OF
KERALA & ORS. [A. M. KHANWILKAR, J.]
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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 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; 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.
Kalpana K. Tripathy
Appeal disposed of.
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THE BRANCH MANAGER, INDIGO AIRLINES,
KOLKATA & ANR.
v.
KALPANA RANI DEBBARMA & ORS.
(Civil Appeal Nos. 778-779 of 2020)
JANUARY 28, 2020
[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ]
Consumer Protection Act, 1986:
s. 2(1)(g) - Complaint against airlines - Alleging that the
complainants were left behind by the ground staff without informing
them about the departure of airline and that they were also not
accommodated in the next flight - District consumer court allowed
the complaint awarding compensation with 9% interest - In cross -
appeals before State Consumer Commission, compensation amount
enhanced - National Consumer commission dismissed the Revision
petition with cost on the Airlines - Appeal to Supreme Court - Held:
The nature of enquiry to be undertaken by consumer fora is limited
to the factum of deficiency in service and to award compensation
only if that fact is substantiated by the party alleging the same -
The initial burden to substantiate the factum of deficiency in service
was on the complainants - The complainants failed to substantiate
the allegation of deficiency in service - The consumer fora in
complete disregard of the principles of pleadings and burden of
proof, unjustly shifted the onus on the Airlines - The National
Consumer Commission erroneously denied itself the Revisional
jurisdiction despite the fact that decisions assailed therein were
manifestly wrong and suffered from error of jurisdiction.
Allowing the appeals, the Court
HELD: 1. While dealing with a complaint filed before
consumer fora, the jurisdiction or the nature of enquiry to be
undertaken by the consumer fora is limited to the factum of
deficiency in service and to award compensation only if that fact
is substantiated by the party alleging the same. The expression
'deficiency in service' has been defined in Section 2(1)(g) of the
Consumer Protection Act, 1986, to mean any fault, imperfection,
[2020] 3 S.C.R. 389
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shortcoming or inadequacy in the quality, nature and manner of
performance which is required to be maintained by or under any
law for the time being in force or has been undertaken to be
performed by a person in pursuance of a contract or otherwise in
relation to any service. Thus, the enquiry in such proceedings is
limited to grievance about deficiency in service, which is distinct
from the tortuous acts of the other party. [Paras 11 and 12][403G; 403-A-B; 404-B]
Ravneet Singh Bagga v. KLM Royal Dutch Airlines &
Anr (2000) 1 SCC 66 (paragraph 6) : [1999] 4 Suppl.
SCR 320- relied on
2. On a fair reading of the complaint and the evidence given
on the same lines, all that can be discerned is that the respondents
had reported at the "check-in counter" well in time and were
issued boarding passes for the flight, which was scheduled to
depart at 08:45 a.m., and that the flight took off leaving them
(respondents) at the airport without informing them about the
departure. There is no assertion that no public announcement
was made at the boarding gate or on the T.V. screens displayed
across within the airport before closure of the boarding gate and
as to how they (respondents) were prevented or misled from
reporting at the boarding gate, 25 (twenty-five) minutes before
the scheduled departure time (08:45 a.m.) of the flight in question,
and moreso before the boarding gates were actually closed at
08:58 a.m. [Para 12][405-G-H; 406-A-B]
3. The consumer fora committed manifest error in shifting
the burden on the appellants and drawing adverse inference
against them for having failed to produce evidence regarding
announcements having been made to inform the passengers
including the respondents to arrive at the boarding gate before
its closure at 08:58 a.m. The appellants had clearly stated that as
per the standard practice, such announcements are made at the
boarding gate itself and the record in that behalf is not maintained
by the Airlines (appellants), but by the airport authorities. The
need to prove that fact would have arisen only if the respondents
had clearly pleaded all relevant material facts and also discharged
their initial burden of producing proof regarding deficiency in
service by the ground-staff of the appellants at the airport after
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issuing boarding passes and before the closure of the boarding
gate and departure of the flight. [Para 12][406-B-D]
4. The approach of the consumer fora is in complete
disregard of the principles of pleadings and burden of proof. First,
the material facts constituting deficiency in service are blissfully
absent in the complaint as filed. Second, the initial onus to
substantiate the factum of deficiency in service committed by the
ground-staff of the Airlines at the airport after issuing boarding
passes was primarily on the respondents. That has not been
discharged by them. The consumer fora, however, went on to
unjustly shift the onus on the appellants because of their failure
to produce any evidence. In law, the burden of proof would shift
on the appellants only after the respondents/complainants had
discharged their initial burden in establishing the factum of
deficiency in service. [Para 16][411-D-E]
5. Further, there is no averment in the complaint or
deposed to by the witness of the complainants/respondents as to
how the ground-staff of the appellant-Airlines was responsible
and that it was not their own acts of commission or omission. It is
not the case of the respondents that they were prevented, misled
or obstructed by the ground-staff of the appellants from reaching
at the boarding gate well in time and until it was closed treating
as 'Gate No Show'. It is also not the case of respondents that
they had sought assistance of the ground-staff of the appellants
and that was denied to them. In absence of such a case made out
in the complaint or in the deposition and other evidence produced
by the respondents, it is unfathomable as to how the respondents
had substantiated the allegation of deficiency in service by the
ground-staff of the appellants. Such a complaint ought not to
proceed further for want of material facts constituting deficiency
in service. [Para 13][408-H; 409-A-C]
6. The fact that the respondents were not accommodated
in the next flight for Agartala without payment of airfare, per se,
cannot be regarded as deficiency in service in relation to the
contract which stood discharged and accomplished after 'Gate
No Show' by the respondents and departure of the flight in terms
of Articles 8.2 and 8.3 of the CoC. [Para 14][409-D]
THE BRANCH MANAGER, INDIGO AIRLINES, KOLKATA & ANR. v.
KALPANA RANI DEBBARMA & ORS.
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7. The appellants at best were liable only to refund the
Government and airport fees and/or taxes (if applicable) and not
liable for any loss caused to the passenger(s).