Rajasthan High Court - Jaipur
Hari Singh vs State Of Raj And Ors (2023:Rj-Jp:23836) on 20 September, 2023
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
[2023:RJ-JP:23836]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No.18980/2017
Hari Singh S/o Ramlal, A-37, Maharani Enclave, Hasthsal, Uttam
Nagar, New Delhi.
----Petitioner
Versus
1. State of Rajasthan through Secretary, Home, Government
of Rajasthan, Jaipur.
2. Additional Director General (RAC), Jaipur, Police
Headquarter, Jaipur.
3. Inspector General (RAC), Jaipur, Police Headquarter,
Jaipur.
4. Commandant 12th Battalion, RAC (IR), III DAP, Police
Line, Vikaspuri, New Delhi 18.
5. Assistant Commandant (AC), 12th Battalion RAC,
Chanakyapuri, New Delhi.
6. Joint Secretary (Appeal), Home (Group 11) Department,
Govt. of Rajasthan, Secretariat, Jaipur
----Respondents
For Petitioner(s) : Mr.Ram Kumar Swami, Adv. with
Mr.Rakesh Kumar Swami, Adv.
For Respondent(s) : Mr.P.S. Naruka, Adv. on behalf of
Mr.Rupin Kala, Govt. Counsel.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Order
20/09/2023
REPORTABLE
1. The instant writ petition has been filed by the
petitioner challenging charge-sheet dated 14.09.2007,
punishment order dated 31.03.2008, appellate order dated
10.02.2009 rejecting the departmental appeal and order
dated 25.05.2017 rejecting the review petition filed by the
petitioner.
(D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders)
(Downloaded on 11/11/2023 at 08:12:20 PM)
[2023:RJ-JP:23836] (2 of 41) [CW-18980/2017]
2. The brief facts, as pleaded in the writ petition, are
that petitioner was appointed as Constable in the Rajasthan
Armed Constabulary vide order dated 13.04.1995. The
petitioner was posted at 'C' Company, 12 th Battalion RAC (IR)
Chankyapuri, New Delhi and he was served with a charge-
sheet dated 14.09.2007 issued under Rule 16 of the
Rajasthan Civil Services (Classification, Control and Appeal)
Rules, 1958 (hereinafter 'the Rules of 1958').
3. The petitioner has pleaded that memo along-with
statement of allegations were based on an application
submitted by father-in-law of the petitioner containing the
false allegations that the petitioner had illicit relations with
one Mukesh Kumari.
4. The petitioner has pleaded that memo of
allegations revealed that the petitioner was married with one
Sulochana and out of wedlock, two children were born. The
petitioner was having illicit relation with one Constable-
Mukesh Kumari, who was working in CRPF at New Delhi and
she was already a married lady. The petitioner was living with
his paramour in an illicit relationship and he did not meet his
own legally wedded wife and children. The petitioner in spite
of persuasion by his in-laws, continued to maintain illicit
relations with his paramour and ignored to look after his wife
and children. The said act was treated to be a serious
misconduct of leading an immoral life and also an act of
indiscipline.
5. The petitioner has pleaded that after receipt of
charge-sheet, he had requested to supply him with the
(D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders)
(Downloaded on 11/11/2023 at 08:12:20 PM)
[2023:RJ-JP:23836] (3 of 41) [CW-18980/2017]
certified copy of the relevant documents vide applications
dated 21.09.2007 and 28.09.2007. The petitioner, since, was
not supplied the certified copy of the documents on the basis
of which charges were framed and further, he was not given
an opportunity of inspection within stipulated time and as
such, the petitioner was not able to file reply.
6. The petitioner has pleaded that some incomplete
illegible, irrelevant and unattested photocopies of the
documents were made available to him after expiry of the
stipulated period.
7. The petitioner is said to have made again an
application on 09.10.2007 to supply him with complete and
legible copy of all the documents and further requested to
extend the time period to submit his representation.
8. The petitioner has pleaded that though time limit to
file representation was extended for ten days vide order
dated 04.10.2007, however, the same was meaningless
without supply of copy of the documents.
9. The petitioner has pleaded that he had filed the
various applications i.e. on 14.08.2007, 28.09.2007 and
09.10.2007 to grant him 30 days Privileged Leave for
preparation of his representation and defence for the
departmental enquiry, however, the request was not accepted
and time was not extended.
10. The petitioner has pleaded that he had also
requested to appoint an Assisting Officer but the same prayer
was also rejected without any reason.
(D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders)
(Downloaded on 11/11/2023 at 08:12:20 PM)
[2023:RJ-JP:23836] (4 of 41) [CW-18980/2017]
11. The petitioner has pleaded that on account of
arbitrary and unconstitutional act of the respondents, the
petitioner went into distress and mental agony with
psychiatric illness. The petitioner is said to have taken some
local treatment and thereafter he also consulted Doctor of
Psychiatry Department in New Delhi.
12. The petitioner has pleaded that it was impossible
for him to understand and make difference between good and
bad and as such, he was not in a position to submit his
representation.
13. The petitioner has pleaded that without affording
an opportunity to effectively represent himself against the
charge-sheet, the respondents arbitrarily appointed an
Enquiry Officer with pre-determination to punish the
petitioner.
14. The petitioner has pleaded that an ex-parte order
dated 31.03.2008 was passed by the Disciplinary Authority,
dismissing him from the service. The petitioner has alleged
that punishment order was passed without providing copy of
the enquiry report along-with copies of statements of
witnesses recorded during enquiry and documents marked as
Exhibits during enquiry.
15. The petitioner has further alleged that no
opportunity to submit representation was given to him before
imposing punishment.
16. The petitioner has pleaded that he filed a
departmental appeal against the dismissal order and the
Appellate Authority dismissed the appeal vide order dated
(D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders)
(Downloaded on 11/11/2023 at 08:12:20 PM)
[2023:RJ-JP:23836] (5 of 41) [CW-18980/2017]
10.02.2009 without giving an opportunity of hearing and
without application of mind.
17. The petitioner has pleaded that a review petition
under Rule 34 of the Rules of 1958 was filed by him and the
same has also been dismissed by the Subordinate Officer
even without placing the same before His Excellency, the
Governor of Rajasthan.
18. The petitioner has further pleaded that he came to
know that the disciplinary proceedings were also initiated
against one Mukesh Kumari, who was working in the office of
CRPF at New Delhi on the same charges of having illicit
relation with the petitioner and she was exonerated of the
false, frivolous and vexatious charges and as such, she is still
in service of CRPF.
19. The petitioner has pleaded that he was posted in
canteen operated by RAC and he was in touch with other
employees, who used to visit canteen and as such, the
petitioner being a service provider, developed friendly relation
with employees as customer and several employees used to
share their problems in a friendly manner with the petitioner
and Mukesh Kumari was also one of them but the petitioner
did not have any ill-will intentions or illicit relations.
20. The petitioner has pleaded that his marriage was
solemnized with Mrs.Sulochana and they lived happily and
she also came to live with him at New Delhi. The father-in-
law of the petitioner used to misguide his wife and he wanted
to get the petitioner transferred from Delhi to the place of his
own choice, however, the respondent misused such false
(D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders)
(Downloaded on 11/11/2023 at 08:12:20 PM)
[2023:RJ-JP:23836] (6 of 41) [CW-18980/2017]
allegations and initiated disciplinary proceedings without
application of mind.
21. The petitioner has also pleaded that an application
was filed by the wife of the petitioner under Section 125
Cr.P.C., whereby the petitioner was already paying
maintenance of Rs.2,000/- p.m. and subsequently since the
maintenance was raised to Rs.5,000/- and same was also
paid by him.
22. Learned counsel for the petitioner, while challenging
the disciplinary proceedings initiated against the petitioner
and punishment order, has raised the following submissions:-
22.1 The very foundation of charges against the
petitioner of having illicit relation with another married
woman cannot be a misconduct for proceedings in the
departmental enquiry. The offence of living an adulterous life
is no more an offence under IPC and only the Competent
Criminal Court could have tried such an offence but the same
cannot be a subject matter of a departmental enquiry.
22.2 The charges levelled against the petitioner were
vague and as such, the very foundation of issuing charge-
sheet is vitiated in the eye of law.
22.3 The Disciplinary Authority has not applied its mind
and punishment order is based on surmises and conjectures.
22.4 There was no documentary or oral evidence to
come to conclusion that the petitioner was living in an illicit
relation with another married lady and only on the basis of
hearsay evidence-gossip, the charges could not have been
proved against the petitioner.
(D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders)
(Downloaded on 11/11/2023 at 08:12:20 PM)
[2023:RJ-JP:23836] (7 of 41) [CW-18980/2017]
22.5 The Disciplinary Authority has not assigned any
reason to come to conclusion in respect of charges being
found proved against the petitioner.
22.6 There has been no complaint by husband of lady
(Mukesh Kumari) against whom allegation has been levelled
of living with the petitioner and in absence of complaint by
husband of another wife, no charge of living an immoral life
could have been fastened on the petitioner. The wife of the
petitioner also did not make any complaint and only father of
the petitioner's wife had made a complaint.
22.7 The maintenance was already paid by the petitioner
to his wife and children and as such, allegation of not
maintaining them was totally baseless and without any
application of mind.
22.8 The proceedings conducted against the petitioner
were in gross violation of principles of natural justice and ex-
parte proceedings were drawn against the petitioner and the
same cannot be sustained in the eye of law.
22.9 The allegation against the petitioner of remaining
absent from duty after charge-sheet being served on him, the
absence was not willful one and the petitioner on medical
reasons had to remain absent from service and as such, the
Disciplinary Authority wrongly framed its opinion.
22.10 The charge-sheet issued to the petitioner itself
showed the pre-determination by holding the petitioner guilty
and as such, the entire departmental enquiry is vitiated.
(D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders)
(Downloaded on 11/11/2023 at 08:12:20 PM)
[2023:RJ-JP:23836] (8 of 41) [CW-18980/2017]
22.11 The petitioner was not served with a copy of
enquiry report and in absence of the same, punishment order
is not sustainable.
22.12 The punishment imposed on the petitioner is harsh
and disproportionate.
23. The respondents have filed reply to the writ
petition.
24. The respondents have pleaded that a complaint was
received against the petitioner from his father-in-law that
petitioner was having illicit relation with one lady Constable
Mukesh Kumari and the petitioner was not looking after his
wife and children and such act of the petitioner clearly
amounted to immorality, gross-misconduct and indiscipline.
25. The respondents have pleaded that the petitioner
was given proper opportunity to file reply to charge-sheet
after receipt of applications dated 21.09.2007 & 29.09.2007
and as such, the Assistant Commandant was directed to
extend time for another ten days and further, the petitioner
was permitted to get the required documents from the office
of Commandant on working day and the petitioner received
these documents on 08.10.2007.
26. The respondents have placed on record (Annexure-
R/1) where petitioner had put his signatures of receiving the
copy of the statements and other documents.
27. The respondents have pleaded that in spite of such
documents being received by the petitioner, he did not file his
reply and he again sought extension of time for filing the
reply.
(D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders)
(Downloaded on 11/11/2023 at 08:12:20 PM)
[2023:RJ-JP:23836] (9 of 41) [CW-18980/2017]
28. The respondents vide order dated 15.10.2007
(Annexure-R/2) again extended five days time.
29. The respondents have placed on record the denial
from petitioner side to file reply on the ground of not keeping
good mental health and the petitioner further sought time on
27.10.2007.
30. The respondents have pleaded that since the
petitioner did not file reply within the extended time and
willfully absented from duty w.e.f. 09.10.2007 and as such,
Enquiry Officer was appointed vide order dated 05.11.2007
and copy of the same was endorsed to the petitioner and he
was asked to give name and address of his defence
representative. The copy of the order dated 05.11.2007 was
sent to the petitioner for service through the Assistant
Commandant 'C' Company but the petitioner was not found at
his residence and thereafter, a letter was sent on the new
address of the petitioner through the special messenger,
however, the petitioner was not found there and as such,
when the petitioner was contacted on his mobile phone, he
informed that he was in Hissar (Haryana) and as such, copy
of order dated 05.11.2007 appointing the Enquiry Officer, has
been annexed as Annexure-R/3.
31. The respondents have pleaded that the petitioner
was again asked to give name of his defence representative
and a letter was sent to the petitioner at his residential
(village) address by the registered post and the petitioner
was not found there and his family members had refused to
take notice and give address of the petitioner.
(D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders)
(Downloaded on 11/11/2023 at 08:12:20 PM)
[2023:RJ-JP:23836] (10 of 41) [CW-18980/2017]
32. The respondents again sent a letter dated
25.01.2008 for appointing defence representative and since
the petitioner was not found at the given address then the
respondents published a notice in the newspapers i.e. Punjab
Kesari (Delhi Edition) on 12.02.2008 and also in Mahka
Bharati, Rajasthan (Jaipur Edition) on 10.02.2008 asking the
petitioner to appear before the Enquiry Officer within ten
days and to get his defence representative appointed and to
submit his defence failing which the Enquiry Officer was to
conduct ex-parte proceedings. The respondents have placed
on record all these documents and paper publications as
Annexure-R/5 & R/6.
33. The respondents have pleaded that despite the
notices published in the newspapers. The petitioner
continuously remained absent from his duties with effect from
09.10.2007 and as such, he neither appeared in the office nor
submitted his reply and application for appointing defence
representative.
34. The respondents have pleaded that a plea taken by
the petitioner of suffering from mental disease is also
incorrect, as the petitioner had no point of time informed the
Authorities of taking any medical leave or getting his
treatment done in a Government Medical Institution.
35. The respondents have pleaded that the Enquiry
Officer conducted the enquiry after taking into account the
oral and documentary evidence and he found the charges
proved against the petitioner. The enquiry report was sent to
the petitioner along-with show cause notice dated 10.03.2008
(D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders)
(Downloaded on 11/11/2023 at 08:12:20 PM)
[2023:RJ-JP:23836] (11 of 41) [CW-18980/2017]
asking the representation of the petitioner or reply against
the penalty which was proposed to be imposed against him.
The petitioner failed to submit his representation and due
service was effected on the petitioner of the said notice,
which was sent to the petitioner along-with copy of enquiry
report.
36. The respondents pleaded that the Disciplinary
Authority while taking into consideration all the relevant
materials agreed with the findings of the Enquiry Officer and
passed order dated 31.03.2008 imposing the penalty of
dismissal from service.
37. The respondents have pleaded that copy of penalty
order was also pasted on the address of the petitioner at
Delhi and his village and as such, the petitioner was not
found notice dated 30.04.2008, as such, the same was also
published in the daily newspaper Rajasthan Patrika dated
16.05.2008 and in daily newspaper Navbharat Times, Delhi
dated 18.05.2008.
38. The respondents have pleaded that after making
serious efforts, the copy of order dated 31.03.2008 was
served upon the petitioner through special messenger on
02.07.2008 and report of the same has also been filed as
Annexure-R/11.
39. The respondents have pleaded that the Appellate
Authority while looking into grievance raised by the petitioner
found no ground to accept the appeal and as such, the appeal
was dismissed.
(D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders)
(Downloaded on 11/11/2023 at 08:12:20 PM)
[2023:RJ-JP:23836] (12 of 41) [CW-18980/2017]
40. The respondents have pleaded that review petition
of the petitioner has also rightly been dismissed by the
Reviewing Authority.
41. Learned counsel appearing for the respondent
Mr.P.S.Naruka submitted that the facts, as have come on record, clearly depict that the petitioner was leading an immoral life and was remaining absent from duty after service of charge-sheet upon him. Further, the petitioner neither participated in the departmental enquiry nor he appeared before the Authority at all stages in spite of service being effected by ordinary mode as well as by special mode.
42. Learned counsel for the respondent submitted that leading immoral life is a serious misconduct as defined under the Rajasthan Civil Services (Conduct) Rules, 1971.
43. The case of the petitioner has been examined by the different Authorities and power of judicial review in the present facts of the case may not be exercised by this Court, as the scope of judicial review in disciplinary matter is very limited.
44. Learned counsel for the petitioner has placed reliance on the following judgments, as under:-
1. Mahesh Chand Sharma Vs. State of Rajasthan & Ors.
in S.B. Civil Writ Petition No.2067/1999 passed by Coordinate Bench of this Court vide order dated 27.11.2018.
2. Ministry of Finance and Another Vs. S.B. Ramesh reported in [AIR 1998 Supreme Court 853].
3. Keshri Mal Vs. State of Rajasthan reported in [1978 RLW Rajasthan 599] (D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (13 of 41) [CW-18980/2017]
4. Chitarmal Vs. State of Rajasthan & Ors. reported in [(1997)1 WLC (Raj.) 734].
5. Union of India & Ors. Vs. Gyan Chand Chattar reported in [(2009)12 SCC 78].
6. Anil Gilurker Vs. Bilaspur Raipur Kshetriya Gramin Bank and Another reported in [(2011)14 SCC 379].
7. Allahabad Bank & Ors. Vs. Krishna Narayan Tiwari reported in [(2017) AIR SC 330].
8. Kranti Associates Private Limited & Another Vs. Masood Ahmed Khan and Others reported in [(2010)9 SCC 496]
9. Union of India & Ors. Vs. Dinanath Shantaram Karekar and Ors. reported in [(1998) AIR SC 2722]
10. State of U.P. Vs. Mohd. Sharif (dead) through L.Rs. reported in [(1982) AIR SC 937].
45. Learned counsel for the respondent Mr.P.S. Naruka has placed reliance on the following judgments, as under:-
1. State Bank of India & Ors. Vs. Narendra Kumar Pandey reported in [(2013)2 SCC 740].
2. The State of Karnataka & Anr Vs. Umesh passed by the Apex Court in Civil Appeal Nos.1763-1764/2022 decided on 22.03.2022.
3. Zonal Manager, UCO Bank & Anr. Vs. Krishna Kumar Bhardwaj reported in [(2022)5 SCC 695].
4. Deputy General Manager (Appellate Authority) & Ors. Vs. Ajai Kumar Srivastava reported in [(2021)2 SCC 612].
(D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (14 of 41) [CW-18980/2017]
5. Union of India and Ors. Vs. P. Gunasekaran reported in [(2015)2 SCC 610].
6. Bank of India Vs. Apurba Kumar Saha reported in [(1994)2 SCC 615].
7. Lakshmi Devi Sugar Mills Limited Vs. Pt. Ram Sarup and Others reported in [(1957) AIR SC 82].
8. Joseph Shine Vs. Union of India reported in [(2023) LiveLaw (SC) 117].
46. I have heard learned counsel for the parties and perused the material available on record.
47. This Court deems it proper to quote Rule 3, 3A and 4 of the Rules of 1971, are as under:-
3. General.- (1) Every Government servant shall at all times-
(i) maintain absolute integrity; and
(ii) maintain devotion to duty and dignity of office.
(2) (i) Every Government servant holding a supervisory post shall take all possible steps to ensure the integrity and devotion to duty of all Government servants for the time being under his control and authority;
(ii) No Government servant shall, in the performance of his official duties or in the exercise of powers conferred on him, act otherwise than in his best judgment except when he is acting under such direction, obtain the direction in writing, wherever practicable, and where it is not practicable to obtain the direction in writing, he shall obtain written confirmation of the direction as soon thereafter as possible.
Explanation- Nothing in clause (ii) of sub-rule (2) shall be constituted as empowering a Government servant to evade his responsibilities by seeking instructions from, or approval of, a superior officer or authority when such instructions are not necessary under the (D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (15 of 41) [CW-18980/2017] scheme of distribution of powers and responsibilities.
3A. Violation of the Rules: Any Government servant who commits violation of these rules shall be liable for disciplinary action.
4. Improper and unbecoming conduct. - Any Government servant who -
(i) is convicted of an offence involving moral turpitude whether in the course of the discharge of his duties or not;
(ii) behaves in public in a disorderly manner unbecoming of his position as a Government servant;
(iii) is proved to have sent an anonymous or pseudonymous petition to any person in authority;
(iv) leads an immoral life;
(v) disobeys lawful order or instructions of superior officer or defies the superior officer;
(vi) without sufficient and reasonable cause, neglects or refuses to maintain his/ her spouse, parent, minor or disabled child who is unable to maintain himself/ herself or, does not look after any of them in a responsible manner;
(vii) willfully tempers with the meter or any other equipment or the power/ water line with a view to causing financial loss to any of the Departments/ Companies providing public utilities like power and water;
-shall be liable to disciplinary action.
48. This Court on perusal of Rule 3 of the Rules of 1971 finds that the government servant as per Rule 3 (1) (ii) of the Rules of 1971 shall act all times maintaining devotion to duty and dignity of office.
49. This Court finds that as per Rule 3A of the Rules of 1971 if a government servant who commits violation of the Rules of 1971, is liable for disciplinary action.
(D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (16 of 41) [CW-18980/2017]
50. This Court finds that any government servant who leads an immoral life is liable to disciplinary action as per sub-rule (iv) of Rule 4 of the Rules of 1971.
51. This Court finds that the word 'misconduct' itself has not been defined in the Rules of 1971. The word 'misconduct' has its own meaning in service jurisprudence and every commission or omission while rendering service, may not amount to misconduct itself. This Court, deems it proper, to quote definition of 'misconduct' as given in Stroud's Judicial dictionary, where the word 'misconduct' has been defined as under:-
"Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, innocent mistake, do not constitute such misconduct."
52. The word 'misconduct' has been defined in Black's Law Dictionary as under:-
"A forbidden act, a dereliction from duty, unlawful behavior, wilful in character, improper or wrong behavior." Misconduct in offence has been defined as:" Any unlawful behavior by a public officer in relation to the duties of his office, wilful in character. The terms embraces acts which the office-holder had no right to perform, acts performed improperly and failure to act in the fact of an affirmative duty to act."
53. The word 'misconduct' has also been defined in P. Ramanath Aiyar's Law Lexicon, reprint Edition 1987 at page 821, as under:-
"The term misconduct implies a wrongful intention and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term and has to be construed with reference to the subject-matter and the context wherein the (D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (17 of 41) [CW-18980/2017] term occurs, having regard to scope of the Act or stature which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action where no discretion is left, except what necessity may demand and carelessness, negligence and unskillfulness are transgression of some established, but indefinite rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law, carelessness, a forbidden quality of an act and is necessarily indefinite, misconduct in office may be defined as unlawful behaviour or neglect by a publice official, by which the rights of a party have been affected."
54. This Court is primarily required to consider the act of leading immoral life by the petitioner as one of the misconduct or unbecoming conduct of a government servant where allegation is levelled of staying with a married lady, having illicit relation with her and treating the said lady, as his own wife and as such, leading an immoral life and showing indiscipline as well.
55. This Court finds that as per sub-Rule (iv) of Rule 4 of the Rules of 1971, if a government servant leads an immoral life, then whether such person can claim to stay with a married lady according to her own wishes, having no objection from her husband and the same would not amount to leading an immoral life. The another question is in respect of claiming freedom by a government servant to lead his personal life, the way he likes, if society, has no objection than whether his employer can force him not to lead immoral life.
(D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (18 of 41) [CW-18980/2017]
56. This Court finds that a government servant as per the Rules of 1971 has not only to maintain devotion to duty and dignity of office but he has to follow code of conduct and in what manner not only his official duty is required to be performed but apart from his duty hours or while not working in office, he has to follow the norms/conduct Rules, which are prescribed by the employer.
57. This Court finds that a government servant is a public servant and while discharging his duties in such a status, such an employee has to maintain himself in private as well as public life maintaining high standards and he has to be above the board. The government servant cannot be permitted to assert his right in his private life by not following the norms or conduct Rules which are prescribed by the employer for maintaining high standards.
58. The relationship of the employee with the employer of a government servant is not of a private character where only two individual persons are governing their relationship as employer and employee.
59. The government servant is supposed to discharge his duties while working in office or even beyond office hours. He is a public servant in the eyes of a general public. The divesting status of a government servant from his office duty- hours to lead his personal life the way he likes by leading an immoral life, cannot be countenanced by bestowing unfettered right in favour of such government servant.
60. The contention of learned counsel for the petitioner is that the very foundation of charge against the petitioner of (D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (19 of 41) [CW-18980/2017] having illicit relation with another married women, cannot be a misconduct for initiating disciplinary proceedings as living an adulterous life is no more an offence under IPC, as per the judgment passed by the Apex Court in the case of Joseph Shine Vs. Union of India reported in [(2019) 3 SCC 39].
61. This Court finds that the Apex Court in the case of Joseph Shine (supra) was called upon to decide the validity of Section 497 IPC by way of writ petition filed under Article 32 of the Constitution of India.
62. The Apex Court struck down Section 497 of IPC as constitutional being violative of Articles 14, 15 & 21 of the Constitution of India. The Apex Court also overruled the earlier decisions of Sowmithri Vishnu Vs. Union of India reported in [1985 Supp. SCC 137], V. Revathi Vs. Union of India reported in [(1988)2 SCC 72] and W. Kalyani Vs. State reported in [(2012)1 SCC 358].
63. The judgment passed in the case of Joseph Shine (supra) was delivered by five Hon'ble Judges of the Apex Court and while the 5th Hon'ble Judge though concurred with the other Hon'ble Judges, however, the Hon'ble Ms. Justice Indu Malhotra while concurring, also considered as whether adultery must be treated as a penal offence subject to criminal sanctions or marital wrong which is a valid ground for divorce. The Hon'ble Judge also observed that even though sexual infidelity may be morally wrong conduct but this may not be a sufficient condition to criminalize in a relationship due to criminal sanction may be justified, where there is a public element in the wrong, such as offences (D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (20 of 41) [CW-18980/2017] against State security and the like. These are public wrongs where the victim is not the individual but the community as a whole. It would be appropriate to quote the relevant paras of the judgment (as per Indu Malhotra, J), as under:-
"280. The issue remains as to whether 'adultery' must be treated as a penal offence subject to criminal sanctions, or marital wrong which is a valid ground for divorce. 280.1. One view is that family being the fundamental unit in society, if the same is disrupted, it would impact stability and progress. The State, therefore, has a legitimate public interest in preserving the institution of marriage. Though adultery may be an act committed in private by two consenting adults, it is nevertheless not a victim-less crime. It violates the sanctity of marriage, and the right of a spouse to marital fidelity of his/her partner. It impacts society as it breaks the fundamental unit of the family, causing injury not only to the spouses of the adulteror and the adulteress, it impacts the growth and well-being of the children, the family, and society in general, and therefore must be subject to penal consequences. Throughout history, the State has long retained an area of Regulation in the institution of marriage. The State has regulated various aspects of the institution of marriage, by determining the age when an adult can enter into marriage; it grants legal recognition to marriage; it creates rights in respect of inheritance and succession; it provides for remedies like judicial separation, alimony, restitution of conjugal rights; it regulates surrogacy, adoption, child custody, guardianship, partition, parental responsibility; guardianship and welfare of the child. These are all areas of private interest in which the State retains a legitimate interest, since these are areas which concern society and public well-being as a whole. Adultery has the effect of not only jeopardising the marriage between the two consenting adults, but also affects the growth and moral fibre of children. Hence the State (D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (21 of 41) [CW-18980/2017] has a legitimate public interest in making it a criminal offence.
280.2. The contra view is that adultery is a marital wrong, which should have only civil consequences. A wrong punishable with criminal sanctions, must be a public wrong against society as a whole, and not merely an act committed against an individual victim. To criminalize a certain conduct is to declare that it is a public wrong which would justify public censure, and warrant the use of criminal sanction against such harm and wrong doing. The autonomy of an individual to make his or her choices with respect to his/her sexuality in the most intimate spaces of life, should be protected from public censure through criminal sanction. The autonomy of the individual to take such decisions, which are purely personal, would be repugnant to any interference by the State to take action purportedly in the 'best interest' of the individual.
280.3 Andrew Ashworth and Jeremy Horder in their commentary titled 'Principles of Criminal Law have stated that the traditional starting point of criminalization is the 'harm principle' the essence of which is that the State is justified in criminalizing a conduct which causes harm to others. The authors opine that the three elements for criminalization are: (i) harm, (ii) wrong doing, and (iii) public element, which are required to be proved before the State can classify a wrongful act as a criminal offence.
280.4 John Stuart Mill states that "the only purpose for which power can be rightly exercised over the member of a civilized community against his will is to prevent harm to others.
280.5 The other important element is wrongfulness. Andrew Simester and Andreas von Hirsch opine that a necessary pre- requisite of criminalization is that the conduct amounts to a moral wrong. That even though sexual infidelity may be morally wrong (D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (22 of 41) [CW-18980/2017] conduct, this may not be a sufficient condition to criminalize the same.
281. In my view, criminal sanction may be justified where there is a public element in the wrong, such as offences against State security, and the like. These are public wrongs where the victim is not the individual, but the community as a whole.
281.1 Adultery undoubtedly is a moral wrong qua the spouse and the family. The issue is whether there is a sufficient element of wrongfulness to society in general, in order to bring it within the ambit of criminal law?
281.2 The element of public censure, visiting the delinquent with penal consequences, and overriding individual rights, would be justified only when the society is directly impacted by such conduct. In fact, a much stronger justification is required where an offence is punishable with imprisonment.
281.3 The State must follow the minimalist approach in the criminalization of offences, keeping in view the respect for the autonomy of the individual to make his/her personal choices.
281.4 The right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary. In order to determine what conduct requires State interference through criminal sanction, the State must consider whether the civil remedy will serve the purpose. Where a civil remedy for a wrongful act is sufficient, it may not warrant criminal sanction by the State.
282. In view of the aforesaid discussion, and the anomalies in Section 497, as enumerated in para 11 above, it is declared that:
282.1 Section 497 is struck down as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution.
(D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (23 of 41) [CW-18980/2017] 282.2 Section 198(2) of the Code of Criminal Procedure which contains the procedure for prosecution under Chapter XX of the Indian Penal Code shall be unconstitutional only to the extent that it is applicable to the offence of Adultery Under Section 497.
282.3 The decisions in Sowmithri Vishnu (supra), V. Rewathi (supra) and W. Kalyani (supra) hereby stand overruled."
64. This Court finds that after judgment passed by the Apex Court in the case of Joseph Shine (supra), Misc. Application No.2204/2020 was filed on behalf of the Union of India seeking clarification of the order passed by the Apex Court, as Union of India had to consider impact of the judgment of Joseph Shine (supra) in respect of provisions contained in Sections 45 and 63 of the Army Act, 1950.
65. The Apex Court after taking into account the ratio laid down in the case of Joseph Shine (supra) clarified that the said judgment was not at all concerned with the effect and operation of the relevant provisions in the Army Act, Navy Act or Air Force Act or any other provisions of the Acts. This Court, deems it proper, to quote the relevant paras of the order passed in the said Misc. Application, as under :-
"(23) This Court in the case in question was concerned only with the validity of Section 497 IPC and Section 198 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.' for brevity). This Court spoke through separate but concurrent judgments.
Apart from the lead judgment of Hon'ble Mr. Justice Dipak Misra, former Chief Justice of this Court, and with whom, Hon'ble Mr. Justice A. M. Khanwilkar concurred, the other learned Judges wrote separate opinions. However, they agreed that Section 497 IPC and Section 198 Cr.P.C. were unconstitutional. The premise on which the provision was struck down was that it offended Articles 14, 15 and 21 of the (D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (24 of 41) [CW-18980/2017] Constitution. In this case, this Court had no occasion, whatsoever, to consider the effect of the provisions of the Acts in question. In fact, we may notice that it is not as if this Court approved of adultery. This Court has found that adultery may be a moral wrong (per Hon'ble Ms. Justice Indu Malhotra). This Court has also held that it will continue to be a ground for securing dissolution of marriage. It has also been described as a civil wrong.
(24) In view of the fact that the scheme of the Acts in the context, in particular, of Article 33 of the Constitution did not fall for the consideration of this Court, we must necessarily observe and clarify that the judgment of this Court in Joseph Shine v.
Union of India (2019) 3 SCC 39 was not at all concerned with the effect and operation of the relevant provisions in the Acts which have been placed before us by the applicant. In other words, this Court was neither called upon nor has it ventured to pronounce on the effect of Sections 45 and 63 of the 1950 Act as also the corresponding provisions in other Acts or any other provisions of the Acts.
(25) We only make this position clear and dispose of the miscellaneous application. Pending applications stand disposed of."
66. The aforesaid order of the Apex Court in the clarification application makes it clear that if there is a provision in relevant rules governing the relationship of employee and employer and where certain acts are treated as misconduct or if any person is alleged to be leading an immoral life, declaration of Section 497 IPC as unconstitutional, has no offence remaining on statute of adultery, the same would not preclude the employer to take disciplinary action against a government servant, if charge is levelled against him of improper or unbecoming conduct. This (D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (25 of 41) [CW-18980/2017] Court also finds that certain acts may not be a 'criminal', however, there are civil wrong.
67. This Court finds that allegation against a person of leading adulterous life may not result into initiation of any criminal proceedings, however, if the same act is against the conduct Rules, the right of employer to initiate disciplinary proceedings cannot be taken away.
68. Learned counsel for the petitioner has placed reliance on a judgment passed by Coordinate Bench of this Court in the case of Mahesh Chand Sharma (supra). This Court has carefully gone through the said judgment and finds that the Coordinate Bench has made certain observations in respect of allegation levelled against a government servant of leading adulterous life or having any illicit relation. The Coordinate Bench has made observations by replacing Indian Mythology and even giving example of God and Goddess. The Coordinate Bench has also quoted certain customs prevalent in tribal areas and polygamy to be common in certain parts of the world.
69. This Court further finds that the Coordinate Bench has also discussed the right of privacy and the same was looked into from an individual point of view and also from point of view of Society. The concept of adultery has been interpreted by giving liberty to the individual to have relationship either with male or female; with a married women or unmarried man. This Court finds that the said observations of the learned Single Judge are absolutely out of (D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (26 of 41) [CW-18980/2017] context and bereft of any reasoning and further not supported by any legal jurisprudence.
70. This Court finds that in wake of statutory provisions governing the prescribed conduct Rules prohibiting a government servant to lead an immoral life cannot be permitted to be violated by referring to Indian Mythology. The law is codified and rule making authority if has prescribed certain conduct rules to be followed by a government servant, the same cannot be tested on the anvil of customs prevailing in other Countries or some out of context reference to the Indian Mythology.
71. This Court, moreover, finds that the Coordinate Bench was also swayed by the fact that offence of adultery has been struck down as unconstitutional and further, the Apex Court passed an order in the case of Navtej Singh Johar & Ors. Vs. Union of India (Writ Petition (Criminal) No.76/2016), where right of privacy was upheld.
72. This Court finds that the general observations made by learned Single Judge in the case of Mahesh Chand Sharma (supra) have not been approved by the Apex Court in similar circumstances and as such, the Apex Court, in the case of Ministry of Finance & Another (supra), had expressed its total disapproval with the observations made by the Tribunal. It would be relevant to quote the observations which were made by the Tribunal in the aforesaid judgment as under:-
"Though it would be ideal if sexual relationship is confined to legal wedlock, there is no law in (D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (27 of 41) [CW-18980/2017] our country which makes sexual relationship is confined to legal wedlock, there is no law in our country which makes sexual relationship of two adult individuals of different sex, unlawful unless the relationship is adulterous or promiscuous. If a man and a woman are residing under the same roof and if there is no law prohibiting such a residence, what transpires between them is not a concern of their employer. Such a life, if accepted by the society at large, without any displeasure or grudge, then it cannot be said that there is any moral turpitude involved in their living. In this case, there is no case that on account of the applicant living with Smt. K.R. Aruna, his reputation among the general public has been lowered or that, the public has been looking down on his conduct as immoral one. Therefore, even if factually, the allegation that the applicant who is already married to another woman is living with Smt. K.R. Aruna is proved to be true, we are of the considered view that, that alone will not justify a finding that the applicant is guilty of misconduct deserving departmental action and punishment."
This Court also quotes relevant para 8 where the Apex Court recorded its total disapproval with above observations of the Tribunal. Para 8 is quoted as hereunder:-
"Immediately we prefer to record our total disapproval with the above observations of the Tribunal. We propose to deal with and rest our decision on the merits with reference to the findings of the Tribunal rendered on the basis of the facts relating to the case."
In the aforesaid judgment on facts, the Apex Court found that there was a total dearth of evidence to bring home the charge that delinquent was living in a manner unbecoming of a government servant or he exhibited adulterous conduct by such living. The Apex Court, on facts, found that enquiry conducted against such an employee was (D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (28 of 41) [CW-18980/2017] totally unsatisfactory and did not observe procedure for proving the charge and as such, findings of the disciplinary enquiry were not sustainable.
73. The said judgment in no way lays a preposition that if a charge is levelled against a government servant leading an immoral life/adulterous life, the same cannot be a subject matter in the departmental enquiry.
74. The Apex Court in the case of State of Punjab & Ors. Vs. Ram Singh Ex-Constable reported in [(1992) 4 SCC 54] has laid down the law relating to committing misconduct. This Court, deems it proper, to quote relevant para Nos.6, 7 & 8 of the said judgment, are as under:-
"6. Thus it could be seen that the word 'misconduct' though not capable of precise definition, on reflection receive its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful bahaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order.
7. Rule 16.2(1) consists of two parts. The first part is referable to gravest acts of misconduct which entails awarding an order of dismissal.
(D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (29 of 41) [CW-18980/2017] Undoubtedly there is distinction between gravest misconduct and grave misconduct. Before awarding an order of dismissal it shall be mandatory that dismissal order should be made only when there are gravest acts of misconduct, since it impinges upon the pensionary rights of the delinquent after putting long length of service. As stated the first part relates to gravest acts of misconduct. Under General Clauses Act singular includes plural, "act" includes acts. The contention that there must be plurality of acts of misconduct to award dismissal is fastidious. The word "acts" would include singular "act" as well. It is not the repetition of the acts complained of but its quality, insidious effect and gravity of situation that ensues from the offending 'act'. The colour of the gravest act must be gathered from the surrounding or attending circumstances. Take for instance the delinquent who put in 29 years of continuous length of service and had unblemished record; in 30th year he commits defalcation of public money or fabricates false records to conceal misappropriation. He only committed once. Does it mean that he should not be inflicted with the punishment of dismissal but be allowed to continue in service for that year to enable him to get his full pension. The answer is obviously no. Therefore, a single act of corruption is sufficient to award an order of dismissal under the rule as gravest act of misconduct.
8. The second part of the rule connotes the cumulative effect of continued misconduct proving incorrigibility and complete unfitness of police service and that the length of service of the offender and his claim for pension should be taken into account in an appropriate case. The contention that both parts must be read together appears to us to be illogical. Second part is referable to a misconduct minor in character which does not by itself warrant an order of dismissal but due to continued acts of misconduct would have insidious cumulative effect on service morale may be a ground to take lenient view of giving an opportunity to reform. Despite (D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (30 of 41) [CW-18980/2017] giving such opportunities if the delinquent officer proved to be incorrigible and found complete unfit to remain in service than to maintain discipline in the service, instead of dismissing the delinquent officer, a lesser punishment of compulsory retirement or demotion to a lower grade or rank or removal from service without affecting his future chances of re-employment, if any, may meet the ends of justice. Take for instance the delinquent officer who is habitually absent from duty when required. Despite giving an opportunity to reform himself he continues to remain absent from duty off and on. He proved himself to be incorrigible and thereby unfit to continue in service. Therefore, taking into account his long length of service and his claim for pension he may be compulsorily retired from service so as to enable him to earn proportionate pension. The second part of the rule operates in that area. It may also be made clear that the very order of dismissal from service for gravest misconduct may entail forfeiture of all pensionary benefits. Therefore, the word 'or' cannot be read as "and". It must be disjunctive and independent. The common link that connects both clauses is "the gravest act/acts of misconduct."
75. This Court finds that the Apex Court has observed that the police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order.
76. This Court finds that the Apex Court in the case of M. M. Malhotra Vs. Union of India & Ors. reported in [(2005)8 SCC 351] again considered meaning and scope of misconduct. The Apex Court while considering unbecoming and disgraceful conduct of an office of Indian Airforce found that a person cohabiting with a woman who was not a legally (D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (31 of 41) [CW-18980/2017] wedded wife or with another woman during subsistence of marriage and treating such woman with cruelty and torturing her was a disgraceful conduct. This Court, deems it proper, to quote the relevant paras of the judgment, are as under:-
"16.The scheme of the disciplinary rules in general is to identify the conduct which is made punishable and then to provide for the various punishments which may be imposed for the acts which are inconsistent with such conduct. For example, the Central Civil Services (Conduct) Rules, 1964 contain provisions which pertain to the standards of conduct which the Government servant (within the meaning of those rules) are to follow whereas the Central Civil Services (Classification, Control and Appeal) Rules, 1965 provide the punishment or penalties which may be imposed for misconduct. The conduct rules and the rules for punishment may be provided in separate rules or combined into one. Moreover, there are a host of departmental instructions which elucidate, amplify and provide guidelines regarding the conduct of the employees.
17. The range of activities which may amount to acts which are inconsistent with the interest of public service and not befitting the status, position and dignity of a public servant are so varied that it would be impossible for the employer to exhaustively enumerate such acts and treat the categories of misconduct as closed. It has, therefore, to be noted that the word 'misconduct' is not capable of precise definition. But at the same time though incapable of precise definition, the word 'misconduct' on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject- matter and the context wherein the term occurs, having regard to the scope of the (D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (32 of 41) [CW-18980/2017] statute and the public purpose it seeks to serve.
18. In Union of India and Ors. v. Harjeet Singh Sandhu, reported in [(2001)5 SCC 593], in the background of Rule 14 of the Army Rules, it was held that any wrongful act or any act of delinquency which may or may not involve moral turpitude would be 'misconduct' under Rule 14.
19. In Baldev Singh Gandhi v. State of Punjab and Ors., reported in [(2002)3 SCC 667], it was held that the expression 'misconduct' means unlawful behavior, misfeasance, wrong conduct, misdemeanour etc.
20. Similarly, in State of Punjab and Ors. v. Ram Singh Ex. Constable, reported in [(1992)4 SCC 54], it was held that the term 'misconduct' may involve moral turpitude. It must be improper or wrong behavior, unlawful behavior, wilful in character, forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character.
21. 'Misconduct' as stated in Batt's Law of Master and Servant (4th Edition) (at page 63) is "comprised positive acts and not mere neglects or failures." The definition of the word as given in Ballentine's Law Dictionary (148th Edition) is "A transgression of some established and definite rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law, a forbidden act. It differs from carelessness."
22. It may be generally stated that the conduct rules of the Government and public sector corporations constitute a code of permissible acts and behavior of their servants."
(D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (33 of 41) [CW-18980/2017]
77. This Court finds, in the present facts of the case, admittedly the petitioner was working in the disciplined police force and while he was staying in a government accommodation with a lady, who was already married with some other person for a considerable period and treated such lady to be her wife and at the same time, he did not keep his wife and children with him and as such, the Disciplinary Authority had rightly come to conclusion that a grave misconduct was committed by the petitioner of leading immoral life and also committed indiscipline.
78. The submission of counsel for the petitioner that charges levelled against the petitioner were vague, suffice it to say by this Court that a bare perusal of charge-sheet reveals that the petitioner was specifically charged with an allegation that he was married with one Sulochna and out of their wedlock, son and daughter were born. The petitioner was alleged to be living from the last four years with a lady who is Constable in CRPF, New Delhi. The petitioner had illicit relation with the lady, who was already married and the petitioner was staying as husband and wife with her. The said allegation in no way can be termed as a vague allegation and as such, contention of counsel for the petitioner is liable to be rejected.
79. The contention of learned counsel for the petitioner that the Disciplinary Authority has not applied its mind and punishment order was passed on surmises and conjectures, the Disciplinary Authority considered the enquiry report where the Enquiry Officer had recorded statements of as (D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (34 of 41) [CW-18980/2017] many as nine persons and after considering the entire enquiry record, the Disciplinary Authority found that the petitioner was guilty of charge levelled against him and as such, the Disciplinary Authority has not passed a mechanical order, which may be termed, as suffering from non- application of mind.
80. The contention of learned counsel for the petitioner that there was no documentary or oral evidence to form an opinion that the petitioner was living in relation with another married lady and there was only hearsay evidence-gossip, this Court, on perusal of statement recorded during enquiry, finds that husband of the lady, who was alleged to be staying with the petitioner as wife-Sita Ram was examined as PW-1, father in law of the petitioner was examined as PW-2 and other neighbour of the petitioner were examined as Ram Dev
--PW-3, Radha Krishna--PW-4 & Ratanlal--PW-5, they also deposed that the petitioner was staying with another lady and not with his wife. The wife of the petitioner was examined as PW-6 and the brothers of wife of the petitioner were examined as PW-7 and PW-8.
81. This Court finds that there was enough evidence to prove the charges against the petitioner and as such, it cannot be said that there was no evidence available with the enquiry officer to form his opinion.
82. The submission of counsel for the petitioner that there has been no complaint by husband of the lady, who was alleged to be staying with the petitioner and as such, in absence of complaint by husband of that lady, the disciplinary (D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (35 of 41) [CW-18980/2017] enquiry was not to be initiated, this Court finds that father-in- law of the petitioner had made a complaint that the petitioner had left behind his wife at his home town and the petitioner was living in adulterous life with another Constable (Mukesh Kumari). The employer being informed of such misconduct of the petitioner, as such, the disciplinary enquiry has rightly been initiated. The plea that only husband of the wife can make a complaint of adultery is liable to be rejected, as the employer has to see that whether employee follows the conduct Rules and also does not violate the same.
83. The submission of counsel for the petitioner that the entire proceedings were conducted by violating the principles of natural justice, this Court finds that at every stage, notice was sent to the petitioner to participate in the disciplinary enquiry and even notices were also published in the newspapers when the petitioner did not appear before the enquiry officer.
84. This Court finds that the petitioner even did not file reply to the charge-sheet within stipulated time and on his request, even time was extended.
85. This Court further finds that from the record of the case that the petitioner himself did not appear before the enquiry officer, did not file any response to the enquiry report received by him and further, he also remained absent from duty after service of charge-sheet. The stubborn attitude of the petitioner of not participating in the disciplinary proceedings and remaining absent from duty, speaks volumes about the conduct of the petitioner and devotion to his duty.
(D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (36 of 41) [CW-18980/2017]
86. The submission of counsel for the petitioner that punishment imposed on the petitioner is harsh and disproportionate, this Court finds that a serious charge of leading immoral life was levelled against the petitioner and he being a member of the disciplined force, was leading an immoral life and as such, punishment cannot be treated as a harsh from any stretch of imagination.
87. The submission of counsel for the petitioner that charge levelled of remaining absent from duty on the petitioner was wrongly recorded, as the petitioner was not keeping well, suffice it to say by this Court that the petitioner at no point of time had even given an application for medical leave or informed the department of not keeping well and as such, this fallacious plea cannot be accepted by this Court.
88. Learned counsel for the petitioner has placed reliance on a judgment passed in the case of Keshri Mal (supra), this Court finds that the issue before the Court was in respect of following principles of natural justice, giving a show cause notice to the delinquent government servant with an open mind and assumptions should not be drawn that government servant is guilty of the charges levelled against him. The proposed punishment was also mentioned in the charge-sheet and as such, the case of the government servant was found to be prejudged.
In the present facts of the case, charge-sheet has no where found the petitioner guilty and only a memo along- with allegation was communicated to the petitioner and as (D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (37 of 41) [CW-18980/2017] such, the said judgment is of little assistance to the counsel for the petitioner.
89. Learned counsel for the petitioner has placed reliance on a judgment passed in the case of Chitarmal (supra), this Court finds that in the aforesaid case, copy of enquiry report was supplied to the delinquent, after passing order of dismissal and as such, the dismissal order was set- aside. This case has no relevance in the facts of the present case.
90. Learned counsel for the petitioner has placed reliance on a judgment passed by the Apex Court in the case of Anil Gilurker (supra), this Court finds that in the aforesaid case, the Disciplinary Authority did not give particulars of loan accounts or names of borrowers, amounts of loans sanctioned, disbursed and allegedly misappropriated and as such, since charges were vague, the same were set-aside In the present facts of the case, the charges are not vague and as such, the said judgment is of no assistance.
91. Learned counsel for the petitioner has placed reliance on a judgment passed by the Apex Court in the case of Allahabad Bank & Ors. (supra), this Court finds that the Apex Court found that if finding of facts were recorded unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty bound to examine the matter and grant relief.
In the present facts of the case, proper evidence has been led and accordingly the Enquiry Officer submitted (D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (38 of 41) [CW-18980/2017] its report and thereafter, the Disciplinary Authority formed its opinion and as such, this judgment is of little assistance to counsel for the petitioner.
92. Learned counsel for the petitioner has placed reliance in the case of Kranti Associate Private Limited (supra), this Court finds that the Apex Court in the said case has laid down the principles, as how, the reasons are to be recorded by judicial and quasi-judicial and even by administrative body. This Court finds that in the present facts of the case, the Authorities have assigned proper reason for taking decision and as such, the said judgment is of little assistance to counsel for the petitioner
93. Learned counsel for the petitioner has also placed reliance on the judgment passed in the case of Dinanath Shantaram Karekar (supra) to support his contention that enquiry report is required to be supplied to delinquent, this Court finds that the petitioner was issued a notice from time to time and further copies were served on him by sending a special messenger and even paper publication was also undertaken, as such, it cannot be said that the petitioner was not supplied with the copy of enquiry report and moreover, the petitioner has not pleaded, as what, prejudice has been caused to him in absence of enquiry report. The said case is of no assistance to counsel for the petitioner.
94. Learned counsel for the petitioner has also placed reliance on a judgment passed in the case of Gyan Chand Chattar (supra), the said judgment is on legal proposition that only on hearsay evidence, the Authorities should not (D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (39 of 41) [CW-18980/2017] frame their mind and witnesses are required to be examined before the enquiry officer, This Court finds that in the present case, proper legal evidence has been led before the enquiry officer and as such, no assistance can be granted to counsel for the petitioner.
95. This Court, deems it appropriate to refer the judgment passed by the Apex Court in respect of judicial review in departmental enquiry, in the case of Ajai Kumar Srivastava (supra). The relevant paras of the said judgment are quotes, as under:-
"24. It is thus settled that the power of judicial review, of the Constitutional Courts, is an evaluation of the decision-making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The Court/Tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the Rules of natural justice or in violation of the statutory Rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority if based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.
25. When the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the Court is to examine and determine:
(D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (40 of 41) [CW-18980/2017]
(i) whether the enquiry was held by the competent authority;
(ii) whether Rules of natural justice are complied with;
(iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion.
26. It is well settled that where the enquiry officer is not the disciplinary authority, on receiving the report of enquiry, the disciplinary authority may or may not agree with the findings recorded by the former, in case of disagreement, the disciplinary authority has to record the reasons for disagreement and after affording an opportunity of hearing to the delinquent may record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry.
27. It is true that strict Rules of evidence are not applicable to departmental enquiry proceedings. However, the only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee. It is true that mere conjecture or surmises cannot sustain the finding of guilt even in the departmental enquiry proceedings.
28. The Constitutional Court while exercising its jurisdiction of judicial review Under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of malafides or perversity, i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that findings and so long as there is some evidence to support (D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) [2023:RJ-JP:23836] (41 of 41) [CW-18980/2017] the conclusion arrived at by the departmental authority, the same has to be sustained."
96. This Court finds that the Authorities have not committed an error in initiating the enquiry against the petitioner and passing the order by imposing punishment of dismissal from service.
97. This Court finds that the present writ petition lacks merit and as such, the same stands dismissed.
(ASHOK KUMAR GAUR), J Himanshu Soni/392 (D.B. SAW/916/2023 has been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 08:12:20 PM) Powered by TCPDF (www.tcpdf.org)