Karnataka High Court
Dr. Arabi U., vs The Registrar on 20 July, 2021
Author: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JULY, 2021 R
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.15070 OF 2020 (S-RES)
BETWEEN
DR.ARABI U.,
S/O LATE MOIDEEN KUTTY BEARY
AGED ABOUT 60 YEARS
PROFESSOR, DEPARTMENT OF ECONOMICS
MANGALORE UNIVERSITY
MANGALAGANGOTRI
MANGALURU - 574 199 AND ALSO
RESIDING AT A.F.COTTAGE
D.NO.2-38(8)
MARATHI MOOLE
MANJANADY VILLAGE
D.K.DISTRICT - 575 018.
... PETITIONER
(BY SRI SUSHIL KUMAR JAIN, SR. ADVOCATE A/W
SMT.REVATHY ADINATH NARDE, ADVOCATE
(VIDEO CONFERENCING))
AND
1. THE REGISTRAR
MANGALORE UNIVERSITY
MANGALAGANGOTRI
KONAJE
MANGALURU - 574 199.
2. THE CHAIRPERSON/PRESIDING OFFICER
THE INTERNAL COMPLAINTS COMMITTEE(ICC)
2
DEPARTMENT OF BIOSCIENCES
MANGALORE UNIVERSITY
MANGALAGANGOTRI
MANGALURU - 574 199.
... RESPONDENTS
(BY SRI MADHUSHUDHAN R. NAIK, SR. ADVOCATE
A/W SRI T.P.RAJENDRA KUMAR SUNGAY, ADVOCATE
FOR C/R- 1 (VIDEO CONFERENCING)
SMT.SHRIVIDYA ZIRALI, ADVOCATE FOR
SRI SHIVAPRASAD SHANTANAGOUDAR, ADVOCATE
FOR R2 (PHYSICAL HEARING))
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE SECOND SHOW CAUSE NOTICE DTD:
05.11.2020 VIDE ANNX-AA AS ILLEGAL,
UNCONSTITUTIONAL AND VIOLATIVE OF ART 14 AND 16
OF THE CONSTITUTION OF INDIA AND ETC.,
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 16.07.2021, COMING ON
FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING :-
ORDER
The petitioner in this writ petition calls in question
second show cause notice dated 5-11-2020 seeking the
petitioner to show cause as to why penalty of dismissal
from service should not be imposed upon him based
upon the report of Internal Complaints Committee1.
2. Shorn of unnecessary details, facts appertains
are as follows:-
The petitioner joined the service of Mangalore
University2 in the Department of Economics in the year
1983 and claims to have been regularized in service in
the year 1995 and promoted to higher echelons of office
and at the relevant point in time was holding the post of
Chairman of Department of Economics and presently
working in the cadre of Professor at the Department of
Economics in the University. When the petitioner was
functioning as Chairman of Department of Economics,
on 22-04-2018 a complaint was lodged by a project
student before the Karnataka State Commission for
Women alleging sexual harassment by the petitioner.
This was communicated back to the University by the
'Committee' for short
'University' for short
Commission to look into the complaint and take
appropriate action. The same was also complained to
the National Commission for Women who in turn
communicated for action to be taken on the complaint
to the Vice-Chancellor of the University.
3. This led to the complaint being converted into a
complaint under Section 9 of the Sexual Harassment of
Women at Workplace (Prevention, Prohibition and
Redressal) Act, 20133. The petitioner gave his reply to
the complaint on 6-08-2018 but not being satisfied with
the reply, the University placed the complaint for its
enquiry before the Committee constituted in terms of
the Act. On conduct of proceedings, the Committee held
the petitioner guilty of the allegations in terms of the
complaint registered under the Act. The syndicate
resolving to accept the report of the Committee resulted
in the impugned second show cause notice issued to the
'Act' for short
petitioner. The preamble to the second show cause
notice narrates that the report of the Committee was
placed before the Syndicate and the Syndicate proposes
to impose major punishment of dismissal from service
by giving 15 days clear notice to the petitioner. The
impugned order while narrating that a notice is to be
given to the petitioner placed the petitioner under
suspension, invoking the power under the Statutes. It is
this order that is called in question in the subject writ
petition.
4. Heard Sri Sushil Kumar Jain, learned senior
Advocate along with Smt. Revathy Adinath Narde,
learned Advocate for the petitioner, Shri Madhusudhan
R.Naik, learned senior Advocate along with Sri
T.P.Rajendra Kumar Sungay, learned Advocate for
respondent No.1 and Smt. Shrividhya Zirali, learned
Advocate for Sri Shivaprasad Shantanagoudar, Advocate
for respondent No.2.
5. The learned senior counsel appearing for the
petitioner would submit that the impugned second show
cause notice decides to dismiss the petitioner from
service and a separate order places him under
suspension. The proposal to dismiss the petitioner from
service is on the basis of a report of the Committee,
without holding any inquiry as required under the
Service Rules, as the penalty of dismissal can be
imposed only after following the procedure under the
Service Rules and would place reliance upon the
judgments of the Apex Court in the cases of DR.
VIJAYAKUMARAN C.P.V. v. CENTRAL UNIVERSITY OF
KERALA AND OTHERS4 and RUCHIKA SINGH
CHHABRA v M/s AIR FRANCE INDIA AND ANOTHER 5.
6. On the other hand, learned senior counsel Sri
Madhusudhan R.Naik representing the University takes
this Court through the provisions of the Act and
(2020) 12 SCC 426
2018 SCC OnLine Delhi 9340
judgments of the Apex Court in the case of VISHAKA
AND OTHERS v. STATE OF RAJASTHAN AND
OTHERS6; MEDHA KOTWAL LELE AND OTHERS v.
UNION OF INDIA AND OTHERS7 and SEEMA LEPCHA
v. STATE OF SIKKAM AND OTHERS8 and would
contend in terms of the judgment in the case of Medha
Kotwal Lele the report of the Committee is itself
material enough to impose penalty obtaining in the
Service Rules against an employee who is accused and
found guilty of sexual harassment. He would submit
that the statute which depicts procedure for imposition
of penalty has not been amended with regard to
inclusion of cases of sexual harassment. He would also
submit that the petitioner has replied to the show cause
notice and rushed to this Court even before any
decision could be taken after considering his reply to
(1997) 6 SCC 241
(2013) 1 SCC 297
(2013) 11 SCC 641
the show cause notice. He would contend that the writ
petition ought to be dismissed as premature.
7. I have given my thoughtful consideration to the
submissions made by the respective learned senior
counsel and have perused the material on record. In
furtherance whereof, the only issue that calls for my
consideration is,
Whether the proposed penalty of dismissal
from service in the second show cause notice could
have been proposed to be imposed without at the
outset, following the procedure stipulated for
imposition of such penalty as obtaining under the
Service Rules?
POSITION IN LAW:
Pre- Legislation:
8. Since the entire issue springs from a complaint
in terms of the Act, the genesis of the Act is required to
be noticed. The Apex Court taking note of the fact that
the then prevailing civil and penal laws in India do not
adequately provide for specific protection of women from
sexual harassment in workplaces and that enactment of
such legislation will take considerable time, feeling it
necessary and expedient for employers in workplaces as
well as other responsible persons or institutions to
observe certain guidelines to ensure the prevention of
sexual harassment of women, gave a slew of directions
in the form of guidelines as to what would amount to
sexual harassment and the manner to deal with the
same. At para-18 the said judgment further directed
that the guidelines stipulated in the judgment of
Vishaka would be strictly observed in all work places
and these directions would be binding until suitable
legislation is enacted to occupy the field. Paragraph-18
reads as follows:
"18. Accordingly, we direct that the
above guidelines and norms would be strictly
observed in all workplaces for the
preservation and enforcement of the right to
gender equality of the working women. These
directions would be binding and
enforceable in law until suitable
legislation is enacted to occupy the field.
These writ petitions are disposed of,
accordingly."
Though the guidelines depicted in Vishaka was
followed at work places no legislation was brought out
as directed in the said judgment. This led to the
judgment of the Apex Court in the case of Medha
Kotwal Lele and Seema Lepcha (supra) where the
Apex Court held in Medha Kotwal Lele as follows:
"41. The implementation of the
guidelines in Vishaka [Vishaka v. State of
Rajasthan, (1997) 6 SCC 241 : 1997 SCC (Cri)
932] has to be not only in form but substance
and spirit so as to make available safe and
secure environment to women at the
workplace in every aspect and thereby
enabling the working women to work with
dignity, decency and due respect. There is
still no proper mechanism in place to address
the complaints of sexual harassment of the
women lawyers in Bar Associations, lady
doctors and nurses in the medical clinics and
nursing homes, women architects working in
the offices of the engineers and architects and
so on and so forth.
42. In Seema Lepcha [Seema
Lepcha v. State of Sikkim, (2013) 11 SCC 641]
this Court gave the following directions:
"(i) The State Government shall
give comprehensive publicity to the
notifications and orders issued by it in
compliance with the guidelines framed
by this Court in Vishaka case [Vishaka
v. State of Rajasthan, (1997) 6 SCC 241
: 1997 SCC (Cri) 932] and the directions
given in Medha Kotwal case [Medha
Kotwal Lele v. Union of India, (2013) 1
SCC 312] by getting the same published
in the newspapers having maximum
circulation in the State after every two
months.
(ii) Wide publicity be given every
month on Doordarshan Station, Sikkim
about various steps taken by the State
Government for implementation of the
guidelines framed in Vishaka's case
[Vishaka v. State of Rajasthan, (1997) 6
SCC 241 : 1997 SCC (Cri) 932] and the
directions given in Medha Kotwal
case [Medha Kotwal Lele v. Union of
India, (2013) 1 SCC 312] .
(iii) Social Welfare Department
and the Legal Service Authority of the
State of Sikkim shall also give wide
publicity to the notifications and orders
issued by the State Government not
only for the government departments of
the State and its
agencies/instrumentalities but also for
the private companies."
43. As the largest democracy in the
world, we have to combat violence against
women. We are of the considered view that
the existing laws, if necessary, be revised
and appropriate new laws be enacted by
Parliament and the State Legislatures to
protect women from any form of indecency,
indignity and disrespect at all places (in their
homes as well as outside), prevent all forms
of violence - domestic violence, sexual
assault, sexual harassment at the workplace,
etc. - and provide new initiatives for
education and advancement of women and
girls in all spheres of life. After all they have
limitless potential. Lip service, hollow
statements and inert and inadequate laws
with sloppy enforcement are not enough for
true and genuine upliftment of our half most
precious population--the women.
44. In what we have discussed
above, we are of the considered view that
guidelines in Vishaka [Vishaka v. State
of Rajasthan, (1997) 6 SCC 241 : 1997
SCC (Cri) 932] should not remain
symbolic and the following further
directions are necessary until legislative
enactment on the subject is in place:
44.1. The States and Union Territories
which have not yet carried out adequate and
appropriate amendments in their respective
Civil Services Conduct Rules (by whatever
name these Rules are called) shall do so
within two months from today by providing
that the report of the Complaints Committee
shall be deemed to be an inquiry report in a
disciplinary action under such Civil Services
Conduct Rules. In other words, the
disciplinary authority shall treat the
report/findings, etc. of the Complaints
Committee as the findings in a disciplinary
inquiry against the delinquent employee and
shall act on such report accordingly. The
findings and the report of the Complaints
Committee shall not be treated as a mere
preliminary investigation or inquiry leading to
a disciplinary action but shall be treated as a
finding/report in an inquiry into the
misconduct of the delinquent."
In the judgment of Medha Kotwal Lele the Apex Court
at paragraph 45 holds as follows:
"45. We are of the view that if there is
any non-compliance or non-adherence to
Vishaka [Vishaka v. State of Rajasthan,
(1997) 6 SCC 241 : 1997 SCC (Cri) 932]
guidelines, orders of this Court following
Vishaka [Vishaka v. State of Rajasthan,
(1997) 6 SCC 241 : 1997 SCC (Cri) 932] and
the above directions, it will be open to the
aggrieved persons to approach the respective
High Courts. The High Court of such State
would be in a better position to effectively
consider the grievances raised in that
regard."
The Apex Court at Paragraph 44 of the afore extracted
judgment clearly holds that for the guidelines that are
being issued in the said judgment was on the ground
that the directions given in Vishaka should not remain
symbolic and in that light further directions were given
in the case before the Apex Court in Medha Kotwal
Lele. Again the guidelines in terms of the said
observations at paragraph 45 stipulated in Vishaka
were to be strictly followed and it was open to the
aggrieved person to approach respective High Courts for
effectively considering the grievances raised in this
regard. Therefore, it cannot but to be held that the
directions given by the Apex Court in the afore extracted
judgments of Vishaka and Medha Kotwal Lele would
be in operation, till a legislation is promulgated by the
Government.
Post- Legislation:
9. In terms of the judgment (supra) the Apex Court
directed that the guidelines issued therein, both in the
case of Vishaka and Medha Kotwal Lele were to be
binding and enforceable in law until an appropriate
legislation is brought in place to occupy the field
concerning the issue. The Bill was ratified on
25-01-1993. The Bill proposed to enact a persuasive
legislation to provide for safe and secure environment to
every woman free from all sexual harassment by fixing
responsibility on the employer. Later, the Government of
India promulgated the Act and brought it into force on
April 22, 2013. The Act was promulgated to make
appropriate provisions for giving effect to the elimination
of all forms of discrimination/harassment against
women in its workplace.
The Act:
10. Certain provisions of the Act which are
germane to be noticed herein are extracted hereunder
for the purpose of quick reference:
"4(1) Every employer of a workplace
shall, by an order in writing, constitute a
Committee to be known as the "Internal
Complaints Committee":
Provided that where the offices or
administrative units of the workplace are
located at different places or divisional or
sub-divisional level, the Internal Committee
shall be constituted at all administrative units
or offices.
... ... ... ...
9(1) Any aggrieved woman may make,
in writing, a complaint of sexual harassment
at workplace to the Internal Committee if so
constituted, or the Local Committee, in case it
is not so constituted, within a period of three
months from the date of incident and in case
of a series of incidents, within a period of
three months from the date of last incident:
Provided that where such complaint
cannot be made in writing, the Presiding
Officer or any Member of the Internal
Committee or the Chairperson or any Member
of the Local Committee, as the case may be,
shall render all reasonable assistance to the
woman for making the complaint in writing:
Provided further that the Internal
Committee or, as the case may be, the Local
Committee may, for the reasons to be
recorded in writing, extend the time limit not
exceeding three months, if it is satisfied that
the circumstances were such which prevented
the woman from filing a complaint within the
said period.
... ... ... ...
11(1) Subject to the provisions of
Section 10, the Internal Committee or the
Local Committee, as the case may be, shall,
where the respondent is an employee,
proceed to make inquiry into the complaint in
accordance with the provisions of the service
rules applicable to the respondent and where
no such rules exist, in such manner as may
be prescribed or in case of a domestic worker,
the Local Committee shall, if prima facie case
exist, forward the complaint to the police,
within a period of seven days for registering
the case under Section 509 of the Indian
Penal Code (45 of 1860), and any other
relevant provisions of the said Code where
applicable:
Provided that where the aggrieved
woman informs the Internal Committee or the
Local Committee, as the case may be, that
any term or condition of the settlement arrived
at under sub-section (2) of Section 10 has not
been complied with by the respondent, the
Internal Committee or the Local Committee
shall proceed to make an inquiry into the
complaint or, as the case may be, forward the
complaint to the police:
Provided further that where both the
parties are employees, the parties shall,
during the course of inquiry, be given an
opportunity of being heard and a copy of the
findings shall be made available to both the
parties enabling them to make representation
against the findings before the Committee.
(2) Notwithstanding anything contained
in Section 509 of the Indian Penal Code (45 of
1860), the court may, when the respondent is
convicted of the offence, order payment of
such sums as it may consider appropriate, to
the aggrieved woman by the respondent,
having regard to the provisions of Section 15.
(3) For the purpose of making an inquiry
under sub-section (1), the Internal Committee
or the Local Committee, as the case may be,
shall have the same powers as are vested in
a civil court under the Code of Civil Procedure,
1908 (5 of 1908) when trying a suit in respect
of the following matters, namely--
(a) summoning and enforcing the
attendance of any person and
examining him on oath;
(b) requiring the discovery and production
of documents; and
(c) any other matter which may be
prescribed.
(4) The inquiry under sub-section (1)
shall be completed within a period of ninety
days.
... ... ...
13(1) On the completion of an inquiry
under this Act, the Internal Committee or the
Local Committee, as the case may be, shall
provide a report of its findings to the
employer, or as the case may be, the District
Officer within a period of ten days from the
date of completion of the inquiry and such
report be made available to the concerned
parties.
(2) Where the Internal Committee or the
Local Committee, as the case may be, arrives
at the conclusion that the allegation against
the respondent has not been proved, it shall
recommend to the employer and the District
Officer that no action is required to be taken
in the matter.
(3) Where the Internal Committee or
the Local Committee, as the case may be,
arrives at the conclusion that the
allegation against the respondent has
been proved, it shall recommend to the
employer or the District Officer, as the
case may be--
(i) to take action for sexual
harassment as a misconduct
in accordance with the
provisions of the service rules
applicable to the respondent
or where no such service rules
have been made, in such
manner as may be prescribed;
(ii) to deduct, notwithstanding
anything in the service rules
applicable to the respondent, from
the salary or wages of the
respondent such sum as it may
consider appropriate to be paid to
the aggrieved woman or to her
legal heirs, as it may determine,
in accordance with the provisions
of Section 15:
Provided that in case the employer
is unable to make such deduction from
the salary of the respondent due to his
being absent from duty or cessation of
employment it may direct to the
respondent to pay such sum to the
aggrieved woman:
Provided further that in case the
respondent fails to pay the sum referred
to in clause (ii), the Internal Committee
or, as the case may be, the Local
Committee may forward the order for
recovery of the sum as an arrear of land
revenue to the concerned District Officer.
(4) The employer or the District Officer
shall act upon the recommendation within
sixty days of its receipt by him.
... ... ... ...
"18 (1) Any person aggrieved from the
recommendations made under sub-section (2)
of Section 13 or under clause (i) or clause (ii)
of sub-section (3) of Section 13 or sub-section
(1) or sub-section (2) of Section 14 or Section
17 or non-implementation of such
recommendations may prefer an appeal to the
court or tribunal in accordance with the
provisions of the service rules applicable to
the said person or where no such service
rules exist then, without prejudice to
provisions contained in any other law for the
time being in force, the person aggrieved may
prefer an appeal in such manner as may be
prescribed.
(2) The appeal under sub-section (1)
shall be preferred within a period of ninety
days of the recommendations.
... ... ...
19. Every employer shall -
... ... ...
(i) treat sexual harassment as a
misconduct under the service rules
and initiate action for such
misconduct."
Section 9 of the Act gives a right to any aggrieved
woman to make a complaint in writing against any
sexual harassment at work place to the Committee if
constituted or a Local Committee in the absence of the
Committee within 3 months from the date of the
incident; Section 10 provides that the Committee may
before initiating action under Section 11, request the
aggrieved person to settle the matter between the
complainant and the aggrieved person; Section 12
provides for steps that may be taken by the Committee
during the pendency of the inquiry; Section 13 (1) deals
with completion of inquiry under the Act and supply
copy of the report of its findings to the employer and
such report to be made available to the concerned party;
Section 13(2) deals with recommendation to be made by
the Committee after conclusion of the inquiry and if the
allegations are not proved, the Committee may
recommend no action to be taken; Section 13(3) deals
with a situation where the Committee arrives at a
conclusion that the allegations against the employee
had been proved, it would recommend action to be
taken by the employer against the employee by treating
sexual harassment as a misconduct in accordance with
the provisions of Service Rules; Section 13(4) obliges the
employer to act on the basis of the recommendations of
the Committee; Section 18 provides that an aggrieved
person on the recommendation of any of the aforesaid
clauses of Section 13 may prefer an appeal to the Court
or Tribunal in such manner as may be prescribed;
Section 19 of the act deals with duties of the employer;
Section 19(i) provided that the employer has a duty to
treat sexual harassment as a misconduct under the
Service Rules and initiate action for such misconduct.
11. It is not in dispute that no separate
disciplinary Rules are framed by the University for
deciding the allegations involving sexual harassment.
On a conjoint reading of the aforesaid provisions of the
Act, Sections 11, 13(3) and 13(4) in particular, mandate
that once there is a complaint before the Committee, the
Committee should proceed in terms of the Service Rules
applicable to the employee where Service Rules exist in
a manner as may be prescribed in consonance with the
principle of natural justice. Rules have been framed in
terms of the Act namely, Sexual Harassment of Women
at Workplace (Prevention, Prohibition and Redressal)
Rules, 20139. Rules 7 and 9 are germane for
consideration of the issues in the lis and are extracted
for the purpose of quick reference:
"7. Manner of inquiry into
complaint.--(1) Subject to the provisions of
Section 11, at the time of filing the complaint,
the complainant shall submit to the
Complaints Committee, six copies of the
complaint along with supporting documents
'Rules' for short)
and the names and addresses of the
witnesses.
(2) On receipt of the complaint, the Complaints
Committee shall send one of the copies
received from the aggrieved woman under
sub-rule (1) to the respondent within a period
of seven working days.
(3) The respondent shall file his reply to the
complaint along with his list of documents,
and names and addresses of witnesses,
within a period not exceeding ten working
days from the date of receipt of the
documents specified under sub-rule (1).
(4) The Complaints Committee shall make
inquiry into the complaint in accordance with
the principles of natural justice.
(5) The Complaints Committee shall have the
right to terminate the inquiry proceedings or
to give an ex-parte decision on the complaint,
if the complainant or respondent fails, without
sufficient cause, to present herself or himself
for three consecutive hearings convened by
the Chairperson or Presiding Officer, as the
case may be:
Provided that such termination or ex-parte
order may not be passed without giving a
notice in writing, fifteen days in advance, to
the party concerned.
(6) The parties shall not be allowed to bring in
any legal practitioner to represent them in
their case at any stage of the proceedings
before the Complaints Committee.
(7) In conducting the inquiry, a minimum of
three Members of the Complaints Committee
including the Presiding Officer or the
Chairperson, as the case may be, shall be
present.
8. xx xx xx
9. Manner of taking action for
sexual harassment.--Except in cases where
service rules exist, where the Complaints
Committee arrives at the conclusion that the
allegation against the respondent has been
proved, it shall recommend to the employer or
the District Officer, as the case may be, to
take any action including a written apology,
warning, reprimand or censure, withholding
of promotion, withholding of pay rise or
increments, terminating the respondent from
service or undergoing a counselling session or
carrying out community service."
On a coalesce of the provisions of the Act and the Rules
what would unmistakably emerge is, where the Service
Rules exist, the report of the Committee becomes a fact
finding report or a preliminary report, with regard to the
allegation of sexual harassment and the employer
becomes duty bound to proceed under the Service Rules
before imposing any major penalty. It is on the basis of
the aforesaid Act and the Rules the case at hand will
have to be noticed.
Service Rules of the University:
12. Since there are no separate disciplinary Rules
for these allegations, the Rules that are obtaining in the
University which deal with imposition of penalty for any
misconduct, are the Statutes Governing Classification,
Control and Appeal Rules of Employees of Mangalore
University10. The Rules that are germane for
consideration of the lis are extracted hereunder for the
purpose of quick reference:
"7. Nature of penalties: one or more of
the following penalties for good and sufficient
reasons may be imposed on the employees of
the University.
i) fine in the case of Group-D
employees;
ii) ii) censure;
iii) recovery from pay of the whole or
part of any pecuniary loss caused
by negligence or breach of orders
iv) (a) withholding of increments
without cumulative effect.
(b) withholding of increments with
cumulative effect.
(c) withholding of promotion
v) (a) reduction to a lower stage in
the time scale of pay for a period
with a specific direction as to
whether or not the employee will
'Service Rules' for short
earn increments of pay during the
period of such reduction and
whether on the expiry of such
period of penalty, the reduction
will or will not have the effect of
postponing the future increments
of his/her pay;
(b) Reduction to a lower time scale
of pay, grade, post or service
which shall, unless otherwise
directed, be a bar to the promotion
to the time scale of pay grade,
post or service from which he/she
was reduced with or without
further directions regarding;
(i) Seniority and pay in the
scale of pay, grade, post or
service to which he/ she is
reduced;
(ii) Conditions of restoration to
the scale of pay from which
he/she was reduced; and
his/her seniority and pay on
such restoration to that
scale of pay, grade, post or
service;
v) Compulsory retirement;
vi) Removal from service which shall
not be a disqualification for future
employment;
vii) Dismissal from service which
shall ordinarily be a
disqualification for future
employment.'
... ... ... ...
11. Procedure for imposing major
penalties:-
i) No order imposing any of the major
penalties specified in sub rule (iv)(b)
to (viii) of rule 7 shall be made
except after an inquiry held as far
as may be, in the manner provided
in this rule and rule 11-A
ii) Whenever the Syndicate is of the
opinion that there are grounds for
inquiring into the truth of imputation of
misconduct or misbehavior against an
employee, it may itself inquire into or
appoint the Vice-Chancellor or any other
Officer to inquire into the truth of the
matter. Such cases of misbehavior in
case of Group A, Group B and Group C
employees should be reported by the
Vice-Chancellor to the Syndicate and in
other cases the Vice-Chancellor can take
action to conduct necessary inquiry.
Explanation: Where the Disciplinary
Authority itself holds the inquiry, any
reference in sub-rule(vii) to sub-rule(xx) and in
sub-rule (xxii) , to the Inquiring Authority shall
be construed as a reference to the
Disciplinary Authority.
iii) Where it is proposed to hold an inquiry
against an employee under this rule
and rule 11-A the disciplinary authority
i.e. Syndicate shall draw up or cause to
be drawn up:
i) the substance of the imputations
of misconduct or misbehaviour
into definite and distinct articles
of charge;
ii) a statement of the imputation of
misconduct in support of each
article of charge, which shall
contain.
a) a statement of all relevant
facts including any
admission or confession
made by the employee;
b) a list of documents by
which, and a list of
witnesses by whom, the
articles of charge are
proposed to be sustained.
iv) The Disciplinary Authority (i.e., the
Syndicate) shall deliver or cause to be
delivered to the employee a copy of the
articles of charges, the statement of
imputations of misconduct or
misbehaviour and a list of documents
and witnesses by which each article of
charge is proposed to be sustained and
shall require the employee to submit,
within such time as may be specified, a
written statement of his defence and to
state whether he/she desires to be
heard in person.
v) a) On receipt of the written
statement of defence, the
Syndicate /the Vice- Chancellor in
case of Group D employees or any
other authority appointed by it
may inquire into such of the
articles of charges as are not
admitted or if it considers it
necessary so to do, appoint under
sub rule(2) and Inquiring Authority
for the purpose and where all the
articles of charge have been
admitted by the employee in his
written statement of defence, the
Disciplinary Authority shall record
its findings on each charge after
taking such evidence as it may
think fit and shall act in the
manner laid down in rule 11-A
b) If no written statement of
defence is submitted by the
employee, the Syndicate may
inquire into the articles of charge,
or may if it considers necessary to
do so may appoint an inquiring
authority for the purpose.
c) Where the Syndicate/Vice-
Chancellor itself inquires into any
articles of charge or appoints an
Inquiring Authority for holding an
inquiry into such charge it may by
an order appoint an Officer or a
legal practitioner to be known as
Presenting Officer to present on its
behalf the case in support of the
articles of charge.
vi) The disciplinary authority shall where it
is not the Inquiring Authority, forward or
cause to forward to the Inquiring
Authority :-
a) a copy of the articles of charge
and statement of imputations of
misconduct or misbehaviour;
b) a copy of the written statement of
defence, if any, submitted by the
employee;
c) a copy of the statements of
witnesses, if any;
d) evidence proving the delivery of
the documents to the employee
and
e) a copy of the order appointing the
legal Practitioner as 'Presenting
Officer'.
vii) The employee shall appear in person
before the Inquiring Authority on a fixed
date and at a fixed time within ten
working days from the date of receipt of
the articles of charge and the statement
of the imputations of misconduct or
misbehaviour, as the Inquiring Authority
may, by a notice in writing specify in
this behalf or within such further time,
not exceeding ten days, as the Inquiring
Authority may allow.
viii) The employee may take the assistance
of any other University employee (or a
retired University employee) to present
the case on his/her behalf, but may not
engage a legal practitioner for the
purpose unless the Presenting Officer
appointed by the Disciplinary Authority
is a legal practitioner, or, the
Disciplinary Authority, having regard to
the circumstances of the case, so
permits:
(Provided that if the retired University
employee is also a legal practitioner, the
employee shall not engage such person
unless the Presenting Officer appointed by the
Disciplinary Authority is a legal practitioner or
the Disciplinary Authority having regard to
the circumstances of the case, so permits.)
ix) If the employee who has not admitted
any of the articles of charge in his
written statement of defence or has not
submitted any written statements of
defence, appears before the Inquiring
Authority, such authority shall ask him
whether he is guilty or has any defence
to make. If he pleads guilty to any of the
articles of charge or has any defence to
make, the Inquiring Authority shall
record the plea, sign the record and
obtain the signature of the employee
thereon.
x) The Inquiring Authority shall return a
finding of guilt in respect of those
articles of charge to which the employee
pleads guilty.
xi) The Inquiring Authority shall, if the
employee fails to appear within the
specified time or refuses or omits to
plead require the Presenting Officer to
produce evidence by which he proposes
to prove the articles of charge and shall
adjourn the case to a later date not
exceeding thirty days, after recording
an order that the employee may for the
purpose of preparing his defence:
a) inspect within five days of the
order or within such further time
not exceeding five days as the
Inquiring Authority may allow, the
documents specified in the list
referred to in sub rule(iii);
b) submit a list of witnesses to be
examined on his behalf;
c) apply orally or in writing to
inspect and take extracts of the
statements, if any of witnesses
mentioned in the list referred to in
sub-rule iii The Inquiring Authority
shall permit him to take such
extracts as early as possible and
in any case not later than three
days before the commencement of
the examination of the witnesses
on behalf of the Disciplinary
Authority;
d) give a notice within ten days of
the order or within such further
time not exceeding ten days as
permitted by the Inquiring
Authority for the discovery or
production of any documents
which are in the possession of the
University but not mentioned in
the list referred to sub rule 3
Provided that the employee shall indicate the
relevance of the documents required by him to
be discovered or produced by the University.
xii) The Inquiring Authority shall on receipt
of the notice for the discovery or
production of documents, forward the
same or copies thereof to the concerned
authority in whose custody or
possession the documents are kept with
a requisition for the production of the
document by such date as may be
specified in such requisition:
Provided that the Inquiring Authority may, for
reasons to be recorded by it in writing, refuse
requisition of such of the documents as are, in
its opinion, not relevant to the case.
xiii) On receipt of the requisition referred to
in sub-rule (xii) every authority having
the custody or possession of the
requisitioned documents shall produce
the same before the Inquiring Authority:
Provided that if the authority having the
custody or possession of the requisitioned
documents is satisfied for reasons to be
recorded by it in writing that the production of
all or any of such documents would be
against the public interest or security of the
state, it shall inform the Inquiring Authority
accordingly and the Inquiring Authority shall,
on being so informed communicate the
information to the employee and withdraw
the requisition made by it for the production
or discovery of such documents.
xiv) On the date fixed for the inquiry, the
oral and documentary evidence by
which the articles of charge are
proposed to be proved shall be
produced on behalf of the disciplinary
authority. The witnesses shall be
examined by or on behalf of the
Presenting Officer and may be cross
examined by or on behalf of the
Government Servant. The Presenting
Officer shall be entitled to re-examine
the witnesses on any points on which
they have been cross-examined, but not
on any new matter, without the leave of
the Inquiring Authority. The Inquiring
Authority may also put such questions
to the witnesses as it thinks fit.
xv) If it shall appear necessary before the
close of the case on behalf of the
disciplinary authority the Inquiring
Authority if found necessary may at its
discretion allow the presenting Officer to
produce evidence not included in the list
given to the employee or may itself call
for new evidence or recall and re-
examine any witness. In such case, the
employee shall be entitled to have a
copy of the list of further evidence
proposed to be produced if he demands
it.
An adjournment of the Inquiry for three
days excluding the date of adjournment
may be allowed for this purpose at the
request of the employee. The Inquiring
Authority shall give the employee an
opportunity of inspecting such
documents before they are taken on the
record. The Inquiry Authority may also
allow the employee to produce new
evidence if found necessary in the
interest of justice.
NOTE: New evidence shall not be permitted or
called for
Nor witnesses shall be recalled to fill up
any gap in the evidence. Such evidence
may be called for only when there is an
inherent lacuna or defect in the
evidence which has been produced.
xvi) When the case for the Disciplinary
Authority is closed, the employee shall
be required to state his defence, orally
or in writing as he may prefer. The oral
defence shall be signed by the employee
after it is recorded. A copy of the
statement of defence shall be given to
the Presenting Officer, if any appointed.
xvii) The evidence on behalf of the employee
shall then be produced. The employee
may examine himself if he so prefers.
The witnesses produced by the
employee shall then be examined. They
shall be liable for cross examination, re-
examination and examination by the
Inquiring Authority according to the
provisions prescribed above.
xviii) The Inquiring Authority, after the
employee closes his case, shall
generally question the employee on the
circumstances as appearing against him
in the evidence for the purpose of
enabling him to explain any
circumstances as appearing against
him.
xix) The Inquiring Authority may, hear the
Presenting Officer if any, appointed
after the completion of the production of
evidence. He may also hear the
employee. He may permit both parties
to file written briefs of their respective
cases if they so desire.
xx) If the employee does not submit the
written statement of defence on or
before the fixed date or does not appear
in person before the Inquiring Authority
or refuses to comply with the provisions
of this Statute at any stage of inquiry
the Inquiring Authority may hold the
Inquiry ex-parte.
xxi) (a) After the inquiry is conducted, if the
authority competent to impose any of
the minor penalties specified in clauses
(i) to (iv)(a) of rule 7, is of the opinion
that major penalties specified in sub
rule (iv)
(b) to (viii) should be imposed on the
employee he shall forward records of
the Inquiry to the Syndicate
recommending the imposition of any of
the above mentioned penalties.
(b) The Syndicate may act on the
evidence on the record or may, in the
interest of justice recall the witnesses
and examine, cross-examine and re-
examine them and then impose on the
employee, such penalties as it may
deem fit in accordance with this Statute.
xxii) If there is any change in the Inquiring
Authority during the course of inquiry of
any case the succeeding Inquiring
Authority may act on the evidence
recorded by his predecessor. He may
however further examine, cross-examine
the witnesses if so desired by him in the
interest of justice.
xxiii) i) After the conclusion of the Inquiry, a
report shall be prepared and it shall
contain:
a) the articles of charge and the
statement of the imputations of
misconduct or misbehavior;
b) the defence of the employee in
respect of each article of charge;
c) an assessment of the evidence in
respect of each article of charge;
d) the findings on each article of
charge and the reasons therefor.
EXPLANATION: If in the opinion of the
Inquiring Authority, the proceedings of the
inquiry establish any article of charge
different from the original articles of charge, it
may record its findings on such article of
charge. Such article of charge shall not
however be recorded unless the employee has
either admitted the facts on which it is based
or has had a reasonable opportunity of
defending himself against such article of
charge.
ii) The Inquiring Authority, where it is
not itself the Disciplinary
Authority, shall forward to the
Disciplinary Authority, the records
of inquiry, which shall include:
a) the report prepared by the
Inquiring Authority;
b) the written statement of
defence, if any submitted by
the employee;
c) the oral and documentary
evidence produced in the
course of the inquiry;
d) written briefs, if any, filed by
the Presenting Officer or the
employee or both during the
course of the inquiry; and
e) the orders, if any, made by the
Disciplinary Authority and the
Inquiring Authority in regard to
the inquiry."
(Emphasis added)
In terms of the afore-extracted Rules, no penalty can be
imposed against an employee except after following the
procedure stipulated in terms of the Rules as afore-
extracted. Dismissal from service is one of the major
penalties depicted under Rule 7. Rule 11 deals with
procedure for imposing penalties and begins with a non-
obstante clause that no order imposing any of the major
penalties specified in sub-rule 4(b) to 8 of which
dismissal from service is a part, can be imposed, except
after following the procedure stipulated under the
aforesaid Rules. Rule 11-A deals with action on the
Inquiry Report. These procedures have to be followed if
an employee is to be imposed any of the penalties under
the Rules. A reading of Section 9(i) of the Act in
juxtaposition with the aforesaid Rules makes it
unmistakably clear that the Act itself directs that the
case of sexual harassment would be treated as a
misconduct under the Service Rules and action to be
taken as such. If the Act directs it to be treated as a
misconduct under the Service Rules that will have to be
dealt with under the Rules (supra) and procedure to be
followed prior to imposition of such penalty as found in
the Service Rules.
13. In the teeth of the aforesaid provisions of the
Act and the Service Rules, the impugned second show
cause notice is required to be noticed. The second show
cause notice reads as follows:-
"SECOND SHOW CAUSE NOTICE"
Sub: Complaint under the Section 9 of
the Sexual Harassment of Woman
at workplace -Complaint of a
student (name not shown but
available in records) of the
Department of Economics.
Ref: 1. Complaint dated 23-04-2018 filed
before the Karnataka State
Commission for Women.
2. Notice dated 25-07-2018 issued
by Internal Complaints Committee
of Mangalore University.
3. Your reply to the notice dated 16-
08-2018.
4. Letter dated 20-12-2018 of the
Internal Complaints Committee
(ICC) forwarding Report and
Findings.
5. Your representation dated 30-01-
2019 on the report and findings.
6. Resolution of the Syndicate dated
28-10-2020 proposing
punishment.
--
As you are well aware, you were issued
with notice dated 25-07-2018 by Internal
Complaints Committee (ICC) as a student
(name not shown but available in records
being victim of sexual harassment) had
lodged a complaint against you alleging act of
sexual harassment.
You have submitted your reply and the
Internal Complaints Committee (ICC) has
conducted the proceedings of enquiry in
accordance with law as mentioned above.
Accordingly, after holding the enquiry,
Internal Complaints Committee (ICC) has
submitted its report and findings, the copy of
the same was furnished to you. On receipt of
the same, you have submitted your written
representation dated 30-01-2019.
The Syndicate has perused all the
documents, statements, your
representation and it is of the opinion
that the charge of sexual harassment
leveled against you stands proved at the
enquiry and the report and findings of
the Internal Complaints Committee (ICC)
is just and proper. The Syndicate has
concurred with the report and findings
dated 20-12-2018 of Internal Complaints
Committee (ICC). That by considering the
gravity of misconduct committed which
is proved against you; it has proposed to
impose punishment of dismissal to you.
You are furnished with the copy of the
resolution dated 28-10-2020 of the Syndicate.
You are hereby called upon to submit
your representation if any, to the proposed
punishment on or before 25-11-2020 as
otherwise, it will be presumed that you have
no representation to make and further
disciplinary action will be initiated against
you in this regard as per due process of law."
(Emphasis added)
What preceded the second show cause notice (supra) is
the proceedings of the Syndicate which was also
communicated to the petitioner as the proceedings of
the Syndicate of the same date places the petitioner
under suspension. Certain portions of the order which
are germane are extracted herein for the purpose of
ready reference:
"AND WHEREAS the report of ICC
provides overwhelming evidence and the
Syndicate is in complete agreement with
the same. The entire episode shocks the
conscious of the Syndicate. Hence, the
Syndicate considers this as a fit case in the
interest of justice to propose the action of
imposition of penalty on Prof Arabi U in
accordance with law.
AND WHEREAS since the
misconduct committed by Prof. Arabi U.
is major and serious, the Syndicate
proposes to impose major punishment of
dismissal. However, the Syndicate deems it
fit and proper to issue a show cause notice to
Dr. Arabi U. as to why the punishment of
dismissal shall not be imposed by serving 15
days clear notice with immediate effect
considering the gravity of the situation.
AND WHEREAS since the victim has
communicated to the University specifically
expressing the consent to initiate appropriate
legal action against the delinquent Prof. Arabi
U. the Syndicate apprehends that there is
every danger of victimizing the victim of
sexual harassment, destruction of evidence,
threat to the witnesses in view of the fact that
the delinquent Professor namely Prof. Arabi U.
is still in service and very much available in
the campus of the University holding an
influential position of Research Guide, having
regard to various relevant factors the
Syndicate deems it fit and proper to place
Prof. Arab U. under suspension for one month
or until the completion of process of hearing of
Dr. Arabi U. with regard to the proposed
punishment is heard, whichever is earlier.
This resolution has been passed by the
Syndicate unanimously after holding detailed
deliberations at length by each and every
member.
AND WHEREAS in pursuance of the
above resolution passed by the Syndicate,
you are hereby called upon to submit your
explanation/representation if any, within 15
days from the date of receipt of this show
cause notice, as to why the punishment of
dismissal from service shall not be
imposed on you as provided under the
Statute governing Classification, Control
and Appeal Rules of Employees of
Mangalore University Rule 7(viii) and 9(1),
failing which it will be presumed that
you have no representation to make and
accordingly disciplinary action will be
initiated against you in this regard in
accordance with law.
Order No.MU/EST/Disci/CR128/2020-21/E8,
Dated 05-11-2020
In the light of the preamble and in
pursuance thereof and in exercise of the
power conferred under Rule 9(i) of the Statute
governing Classification, Control and Appeal
Rules (CCA) of Employees of Mangalore
University, Dr. Arabi U., Professor,
Department of Economics, Mangalore
University is kept under suspension with
immediate effect pending his reply to the
show cause notice issued on 05.11.2020 until
further orders.
During the period of suspension, he will
be paid subsistence allowance as per rules.
He should not leave the Headquarters during
the period of suspension without written
permission of the undersigned."
(Emphasis added)
This order places the petitioner under suspension
pending his reply to the show cause notice issued on
5-11-2020. The order which places the petitioner under
suspension indicates that the Syndicate proposes to
impose major punishment of dismissal from service
invoking its power under the Service Rules. This is
indicated in the second show cause notice as well. The
second show cause notice also observes that in the
event he would not submit his reply it would be
presumed that he has no representation to make and
further disciplinary action will be initiated against him.
Both these orders, unequivocally direct that a decision
is taken by the Syndicate to dismiss the petitioner from
service. Dismissal being a penalty under the Service
Rules, in my considered view, could not have been
imposed without, at the outset, following the procedure
stipulated in the Rules empowering the University to
dismiss the petitioner from service.
14. It is apposite to refer to Three Judge Bench
judgment of the Apex Court in the case of Dr.
Vijayakumaran C.P.V (supra) considering an identical
issue and an order of termination passed based upon
the report of the Committee wherein it is held as follows:
"7. 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 Vijayakumaran C.P.V. v. Central University
of Kerala [Vijayakumaran C.P.V. v. Central
University of Kerala, 2018 SCC OnLine Ker
22418] , however, construed the same as one
of termination simpliciter. The Division Bench
of the High Court vide the impugned judgment
and order dated 20-2-2018 in Vijayakumaran
C.P.V. v. Central University of
Kerala [Vijayakumaran C.P.V. v. Central
University of Kerala, 2018 SCC OnLine Ker
22417] has affirmed that view taken by the
learned Single Judge and rejected the appeal
preferred by the appellant.
... ... ...
11. 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.
12. 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 the
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. We say no more.
13. 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 back
wages 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 ECIL v. B. Karunakar [ECIL v. B.
Karunakar, (1993) 4 SCC 727 : 1993 SCC
(L&S) 1184] . 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: (SCC
p. 758, para 31)
"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 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)
14. 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
Respondent 1 University, the entitlement
to grant back wages 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.
15. 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 Respondent 1
University; and instead direct
reinstatement of the appellant and leave
the question regarding back wages,
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."
(Emphasis supplied)
The Apex Court clearly holds that the order of
termination being passed on the basis of Internal
Complaints Committee was illegal and sets aside the
order of termination and directs reinstatement. The
judgment of the Apex Court considers the effect of the
Act, the report of the Committee and the order of
termination.
15. The submission of the learned senior counsel
appearing for the University that the report of the
Inquiry Officer is itself material enough to conclude and
impose the penalty under the Service Rules would in the
first blush seem acceptable in the light of the judgment
of Apex Court in the case of Medha Kotwal Lele
wherein the Apex Court holds that the report of the
Committee would be deemed to be an inquiry report in a
disciplinary action under such Service Rules and
Conduct Rules. Though this judgment directed that this
itself would be an inquiry report, the judgment also
considers directions in the judgment of Vishaka which
was necessary to remain effective until legislative
enactment on the subject is in place. Metha Kotwal
Lele also depicts that these directions would be valid till
appropriate legislation is brought out. Once legislation
steps in, the rigor of the guidelines or tenor of the
guidelines, in my considered view, would become
inapplicable.
16. The statute depicts a particular action to be
performed in a particular manner. The procedure
stipulated therein cannot be given a go-bye by following
the judgment of the Apex Court in the case of Medha
Kotwal Lele. The three Judge Bench decision of the
Apex Court in the case of Medha Kotwal Lele was to be
in operation till the legislation, as was directed in the
case of Vishaka. Subsequent to the legislation, the
later three Judge Bench in the case of Dr.
Vijayakumaran C.P.V. would cover the issue and the
law declared by the Apex Court in the said case would
be applicable to the facts of the case at hand, as the
Apex Court considers the Regulations of the Central
University of Kerala, Regulations of University Grants
Commission and the Act and holds that such report of
the Committee ought to be taken to its logical end not
only by initiating departmental or regular inquiry as per
the Service Rules, but also followed by other actions in
law.
17. The Apex Court holds that in such cases a
regular inquiry or a departmental action as per the
Service Rules is indispensable. The Apex Court was
considering a probationer in the case of Dr.
Vijayakumaran C.P.V. The case at hand is of a regular
employee who has put in 37 years of service in the
University and is on the verge of retirement. Therefore,
the petitioner, in the case at hand, is on a higher
pedestal qua the procedures to be followed under the
Rules in comparison to that of the employee in Dr.
Vijayakumaran CPV's case. Therefore, the contention
of the learned senior counsel appearing for the
respondent/University is unacceptable.
18. Insofar as the submission that the petitioner
ought to have held his hands till the order was passed
pursuant to the reply given to the show cause notice is
also unacceptable for the reason that the penalty of
dismissal was also resolved to be imposed by the
University. Apart from it, being a post-decisional
hearing, the decision to impose penalty of dismissal was
clearly an act without jurisdiction, as no inquiry as
contemplated under the Service Rules was ever initiated
against the petitioner. Therefore, the petitioner did have
a right to approach this Court, at this juncture, to stall
the fait from becoming an accompli. None of the
submissions advanced by the learned senior counsel
appearing for the University sounds acceptance, as the
Apex Court has clearly delineated the action to be taken
on a complaint under Section 9 of the Act in the case of
Dr. Vijayakumaran. It is made clear that the
consequence of obliterating the second show cause
notice will not however mean that the order of
suspension passed on the same day as that of the
second show cause notice stands obliterated, as there is
no challenge to the order of suspension.
19. Before I say omega to the case at hand, I deem
it appropriate to quote the oft-quoted words of Justice
Felix Frankfurter rendered, being a part of the
judgment, in VITRELI v. SEATON11 reading:-
". . .if dismissal from employment is
based on a defined procedure, even
though generous beyond the
requirements that bind such agency, that
procedure must be scrupulously
observed.... This judicially evolved rule of
administrative law is now firmly
established and, if I may add, rightly so.
He that takes the procedural sword shall
perish with that sword."
359 US 535 (1959)
The history of liberty" said the same
learned Judge "has largely been the history of
observance of procedural safeguards" in
McNobb v. US12,
The said observations in the judgments (supra), in the
circumstances are apposite.
20. For the praefatus reasons, I pass the following:
ORDER
(a) Writ Petition is allowed.
(b) The impugned show cause notice dated
05.11.2020 Annexure AA stands quashed.
(c) It is declared that no penalty can be imposed
against the petitioner on the basis of the
report of the committee in terms of the
Service Rules of the University without
holding any inquiry as obtaining under the
Service Rules.
318 US 332
(d) The University is at liberty to initiate
proceedings against the petitioner under the
Service Rules by following the procedures
stipulated therein and conclude the
proceedings within two months from the
date of receipt of the copy of the order.
(e) The University to bear in mind the
restrictions on examination or cross-
examination and the anonymity that the Act
provides to the complainant which is to be
strictly adhered to while conducting an
inquiry under the service rules of the
University against the petitioner.
(f) The petitioner would be entitled to all
consequential benefits that would flow from
the aforesaid directions.
Sd/-
JUDGE
3Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013
4 (2020) 12 SCC 426
5 2018 SCC OnLine Delhi 9340
6 (1997) 6 SCC 241
7 (2013) 1 SCC 297
8 (2013) 11 SCC 641
9 Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Rules,
10 Classification, Control and Appeal Rules of
Employees of Mangalore University
11359 US 535 (1959)
12318 US 332
bkp
CT:MJ
