Judgment · Supreme Court

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: - A B C D E F G H 378 SUPREME COURT REPORTS [2020] 3 S.C.R. A B C D E F G H “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 DR. VIJAYAKUMARAN C.P.V. v. CENTRAL UNIVERSITY OF KERALA & ORS. [A. M. KHANWILKAR, J.] 379 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 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. A B C D E F G H 380 SUPREME COURT REPORTS [2020] 3 S.C.R. (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 A B C D E F G H DR. VIJAYAKUMARAN C.P.V. v. CENTRAL UNIVERSITY OF KERALA & ORS. [A. M. KHANWILKAR, J.] 381 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 A B C D E F G H 382 SUPREME COURT REPORTS [2020] 3 S.C.R. 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 A B C D E F G H DR. VIJAYAKUMARAN C.P.V. v. CENTRAL UNIVERSITY OF KERALA & ORS. [A. M. KHANWILKAR, J.] 383 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 ex- facie 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)