TaxTMI 
TaxTMI 
2020 (1) TMI 1739
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.... 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 wh....
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....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. (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 suppl....
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....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 boyc....
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....ich in turn highlights the fact that the appellant had to face an inquiry before the Committee in reference to the allegations of serious misconduct committed by him. Notably, the appellant has been subjected to a formal inquiry before the Committee constituted under statutory regulations to inquire into the allegations bordering on moral turpitude or misconduct committed by the appellant and that inquiry culminated in a finding of guilt against the appellant with recommendation of the Executive Council to proceed against the appellant as per the service rules. In such a situation, it is unfathomable to construe the order as order of termination simplicitor. 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, Thora (1984) 3 SCC 384 had occasion to deal with....
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.... 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 camouflage for an order imposing a penalty of termination of service on the ground of misconduct ...", that these findings in the Mana....
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....he 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....
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.... 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 backwages 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 m....