Kar HC | A Mangalore University professor being accused of sexual harassment by a student; Court observes “He that takes the procedural sword shall perish with that sword”

Karnataka High Court: M Nagprasanna, J., allowed the petition and quashed the impugned second show cause notice holding The University is at liberty to initiate proceedings against the petitioner under the Service Rules by following the procedures stipulated therein.

The petitioner presently working in the cadre of Professor at the Department of Economics in the University 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 Committee as a complaint was lodged by a project student before the Karnataka State Commission for Women alleging sexual harassment by the petitioner while he was functioning as Chairman of Department of Economics

Counsel for the petitioners submitted 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.

POSITION IN LAW: Pre- Legislation

The SC in judgment Vishaka v. State of Rajasthan, (1997) 6 SCC 241 stipulated certain guidelines that were required to be strictly observed in all work places and these directions would be binding until suitable legislation is enacted to occupy the field.

Further in Medha Kotwal Lele v. Union of India (2013) 1 SCC 297 it was observed that the directions given in Vishaka v. State of Rajasthan, (1997) 6 SCC 241 should not remain symbolic and in that light further directions were given.

POSITION IN LAW: Post-Legislation

[Relevant provisions of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013]

“…13(1) (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;

  1. Every employer shall –

(i) treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct.”

Observations

The Court observed that on a conjoint reading of the Sections 11, 13(3),13(4) and 19 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act along with Rule 7 and 9 of  Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 it emerges that 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.

The Court observed that 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 University

The Court observed that in terms of the Service Rules no penalty can be imposed against an employee except after following the procedure stipulated in terms of the Rules as aforeextracted. 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 misconduct under the Service Rules and action to be taken as such. If the Act directs it to be treated as 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.

The Court relied on judgment Vijayakumaran C.P.V. v. Central University of Kerala, 2018 SCC OnLine Ker 22418 wherein it was held

  1. 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.
  2. 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.

 The Court thus held “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.”

[Dr. Arabi U. v. The Registrar, Mangalore University; WP No. 15070 of 2020; decided on 20-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For petitioner: Mr. Sushil Kumar Jain and Mrs. Revathy Adinath Narde

For respondent: Mr. Madhusudhan R Nair, T. P. Rajendra Kumar Sungay, Mrs. Shrividya Zirali and Shivaprasad Shantanagoudar

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