[Sexual harassment at workplace] Services Rules, if in place, should be followed for dismissal; ICC report not sufficient: Karnataka High Court

In case of a complaint of sexual harassment at workplace, the employer has to follow the Service Rules, if in place, to impose any major penalties like dismissal, the Karnataka High Court ruled (Dr. Arabi U v. Registrar, Mangalore University). .A report by the Internal Complaints Committee (ICC) formed under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act) can in such an event, serve as a fact-finding report but cannot be the sole basis for dismissal. The procedure under Service Rules is indispensable, the Court underscored. "On a coalesce of the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, and the Rules what would unmistakably emerge is, where the Service Rules exist, the report of the Internal Complaints 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,” Justice M Nagaprasanna of the High Court opined. .The judgment was delivered on a petition filed by Arabi U, a 60-year-old professor in the Department of Economics, Mangalore University, against whom sexual allegations were made..A student had lodged a complaint with the State and National Commission for Women against him when he was functioning as chairman of Department of Economics in April, 2018.The university first asked him for a response to the complaint which was given by the petitioner. Dissatisfied, the university placed placed the complaint for enquiry before the ICC constituted under the Act.The ICC found him guilty of allegations based on which a show cause notice was issued by the university to the petitioner asking him to show cause as to why he should not be dismissed from service. This led to the present petition. .The petitioner submitted that the show cause notice was issued based on the report of ICC, without holding any inquiry as required under the Service Rules. It was further submitted that the penalty of dismissal can be imposed only after following the procedure under the Service Rules. The University, on the other hand, referred to cases of Vishaka and others vs State of Rajasthan and Medha Kotwal Lele and others vs Union of India to contend that the report of the Committee would itself be sufficient to impose penalty against an employee who is accused and found guilty of sexual harassment..The Court, after going through the rival submissions and referring to Section 19(i) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 said that the employer has a duty to treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct. The Court also pointed out that the statute governing classification, control and appeal rules of employees of Mangalore University also mandates that no order imposing any of the major penalties shall be made except after an inquiry held as per the procedure prescribed in the statue. The Court further noted that various Supreme Court decisions have clearly held that the order of termination passed on the basis of ICC report are illegal and a regular enquiry or a departmental action as per the service rules is indispensable.. "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," the Court said. .The Court further opined that being a post-decisional hearing, the decision to impose penalty of dismissal on the petitioner 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, said the Court. .With these observations, the Court allowed the plea of the petitioner and quashed the show cause notice dismissing the petitioner. .[Read Judgment]