Central Administrative Tribunal - Delhi
Jogeshwar Mahanta S/O Dubraj Mahanta vs Union Of India Through on 19 December, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.2411/2007 This the 19th day of December, 2008 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Jogeshwar Mahanta S/O Dubraj Mahanta, Reader Psychology (Now retired), National Institute of Criminology & Forensic Science, Ministry of Home Affairs, Govt. of India, Sector-3, Rohini, Delhi. Applicant ( By Shri N. S. Dalal, Advocate ) Versus Union of India through Secretary, Ministry of Home Affairs, North Block, New Delhi. Respondents ( By Shri A. K. Bhardwaj, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Matrimonial discord between the applicant, who happened to be a Government employee and against whom his wife made allegations on all conceivable matrimonial aspects, culminated into a charge memo dated 30.8.1993 against him. He was departmentally proceeded under rule 14 of the CCS (CCA) Rules, 1965. The applicant, a Reader in Psychology (since retired) in the National Institute of Criminology and Forensic Science (NICFS), Ministry of Home Affairs, takes strong exception to proceed against him departmentally with regard to imputation of misconduct on the ground that the allegations in the memorandum of charge have no nexus with the duties to be performed by him and, therefore, the very initiation of the proceedings is illegal and void ab initio.
2. With a view to adjudicate the only plea raised by the applicant, as mentioned above, it would be necessary to give facts in brevity that constrained the applicant to approach this Tribunal for the desired relief by filing present Original Application under Section 19 of the Administrative Tribunals Act, 1985. The applicant was appointed in the year 1981 as Reader Psychology with NICFS. It is his case that there was no complaint of any kind whatsoever against him concerning his duties. However, on the complaint of his wife concerning personal disputes, he was put under suspension, which, later on was revoked, but on the allegations made by his wife he was served with a charge memo dated 30.8.1993. It is further his case that he is having personal disputes with his wife for the last 16-17 years, and in fact, he is the sufferer on account of false insinuations and allegations made against him by his wife from time to time. The concerned authorities on their own sent the matter to the Law Ministry for opinion as to whether there can be any proceeding concerning domestic affairs of the persons, and the Law Ministry furnished its opinion to the effect that there cannot be any enquiry proceeding concerning domestic affairs. It is then the case of the applicant that there is no law which may permit initiation of enquiry proceedings concerning personal relations between a husband and his wife because of matrimonial disputes. He first challenged initiation of the proceedings against him by filing a civil suit for declaration and permanent injunction, which was dismissed on the ground of lack of jurisdiction to entertain and try the same by the Civil Judge. The civil court was of the view that the applicant should approach the Central Administrative Tribunal. Aggrieved of the judgment passed by the learned Civil Judge, the applicant filed an appeal bearing RCA No.4 of 2003 before Senior Civil Judge, Delhi, which, too was dismissed. The order of the appellate court dated 5.3.2003 was challenged by the applicant by filing RCA No.82 of 2004 before the High Court of Delhi, in which notice was issued and interim direction as sought for was also given. The appeal remained pending for four years before the High Court. The same came up for hearing on 29.11.2007. The applicant thought it fit to withdraw the same with liberty to approach this Tribunal. The High Court granted liberty to the applicant to approach the Tribunal and extended the interim directions for a period of four weeks. It is in the circumstances, as mentioned above, that the present Application has been filed.
3. Memorandum dated 30.8.1993 proposing to proceed against the applicant under rule 14 of CCS (CCA) Rules, 1965 is accompanied by statement of imputation of misconduct or misbehaviour in support of the articles of charge framed against the applicant. As many as eight articles of charges have been framed against the applicant, which read as follows:
Article-I That the said Dr. J. Mahanta while functioning as Reader (Psychology) during the period from 30.6.81 is alleged to have demanded furniture, Colour TV and cash of Rs.8,000/-.
Article-II That during the aforesaid period and while functioning in the aforesaid office, the said Dr. J. Mahanta is alleged to have mercilessly beaten several times his wife Smt. Kiran Mala because of not bringing in sufficient dowry by her.
Article-III That during the aforesaid period and while functioning in the aforesaid office, the said Dr. J. Mahanta is alleged to have deserted his wife and his minor children in July 1990 who were residing in a rented house.
Article-IV That during the aforesaid period and while functioning in the aforesaid office, the said Dr. J. Mahanta is alleged to have picked up his minor son named Bishwa rakish aged 9 in the absence of his wife from the rented house.
Article-V That during the aforesaid period and while functioning in the aforesaid office, the said Dr. J. Mahanta is alleged to have locked his minor son in the room on 6.5.92 and himself went away.
Article-VI That during the aforesaid period and while functioning in the aforesaid office, the said Dr. J. Mahanta is alleged to have abused Shri H. M. Gupta, Caretaker (Hostel) and Dr. A. C. Rajvanshi, AD (Plan)/Hostel Warden on 2.7.92 when Smt. Kiran Mala approached them at their residence in the NICFS campus to narrate her tale of woes.
Article-VII That during the aforesaid period and while functioning in the aforesaid office, the said Dr. J. Mahanta is alleged to have physically kicked out Smt. Kiran Mala from the house on 2.7.92 when she visited the residence of Dr. Mahanta in the NICFS Campus to see her child Bishwa Prakash and to ask for financial assistance from Dr. Mahanta.
Article-VIII That during the aforesaid period and while functioning in the aforesaid office, the said Dr. J. Mahanta is alleged to have not paid the rent for the rented house where his wife and children were staying for the last 1= years resulting in forcible eviction of his wife and children due to non-payment of rent and electricity and water charges. It appears that even though the charge memo was issued on 30.8.1993, the department was not sure as to whether such proceedings would be legally permissible and, therefore, opinion of the Law Ministry was sought. One Shri R. K. Tiwari, Assistant Legal Adviser (ALA) vide his note dated 30.11.1993, inter alia mentioned that according to rule 13A of the CCS (Conduct) Rules, 1964, giving or taking dowry in any form, i.e., directly or indirectly has been prohibited and departmental action can be taken under the rules against a Government servant. He also mentioned that for purpose of the rule aforesaid, the term dowry has the same meaning as in the Dowry Prohibition Act, 1961; according to Section 2 of the Act of 1961, dowry means any property or valuable security given or agreed to be given directly or indirectly etc. at or before or any time after the marriage or in connection with the marriage of the parties; and that the statute seems to have laid down no limitation to the length of time about the application of the above definition. The ALA further mentioned that the applicant had filed a petition for divorce which is pending before the court and on that basis he has claimed that the proposed departmental enquiry should be dropped, and that according to DOP&T instructions, if the wife/family has instituted legal proceedings in a court of law against a Government servant for claiming maintenance, then only the departmental proceedings shall abide, and not otherwise. He also mentioned that the department has relied upon and placed photocopy of two pages of a commentary on CCS (Conduct) Rules, 1964, wherein it has been mentioned in para 3 that the party affected has a legal right to claim maintenance, and that if any legal proceedings in this behalf should be pending in a court of law, it would be correct for the Government to take action against the Government servant on this ground, as such action may be construed by the court to amounting to contempt. It appears that the word not in between the words would and be has been omitted, as otherwise the part of the opinion given by ALA would make no sense. While giving his opinion, he also mentioned as follows:
The cases of severe actions are required to be seen in the light of the circumstances involved in each case. We do not know whether such an instruction was passed in consultation with Ministry of Law, if so, a copy clear whether any action has been taken by the wife against the husband before the court of law or even the police authorities so far in the matter. It will be worth pointing out that the demand of dowry under the Dowry Prohibition Act, 1961 has been made a penal offence and against which the punishment prescribed seems to be imprisonment for a term which shall not be less than 5 years with fine not less than Rs.15,000/- or the amount of such dowry whichever is more etc. the police is empowered to investigate the same. The cognizance of offences is to be taken by a magistrate not inferior to that of Metropolitan Magistrate or Judicial Magistrate of first class. In ultimate analysis, however, the ALA mentioned that the matter involves important legal issue, and it would be advisable that a meeting with officials of DOP&T to discuss the entire position in the light of instructions be arranged. In a detailed note dated 15.2.1994, the ALA after making mention of the judgment of the Gujarat High Court in the case of Bodutarmamad v District Superintendent of Police [1982 (2) SLR 65] interpreting conduct of an employee which may be termed as unbecoming, and taking into consideration various aspects of the matter, observed as follows:
Vide our note at page 35-36/ante we have explained the position of Dowry Prohibition Act, 1961 in its application to the Government employee. We do not know whether it is possible for the department to inquire about the existence of demand of dowry relating to Government servant after lapse of such a length of time i.e. about more than 15 or 20 years. We may point out that in the matter of dowry death under Section 304-B of the IPC the period prescribed seems to be 7 years of her marriage.
There seems no dispute that disciplinary proceedings are independent of the court proceedings and may be initiated irrespective of conviction or acquittal in a given case but all that which is required of the department is to follow the norms of service laws and its permissibility in the light of our observations and the verdict of the court referred to hereinbefore and may take the decision accordingly. On the opinion aforesaid, Director (SP) vide its note dated 1.3.1994 mentioned that major penalty proceedings be initiated against the applicant for neglecting his wife and family in a manner unbecoming of a Government servant, and that subsequently the applicant filed a divorce suit against his wife and pleaded that in view of the court case, the disciplinary case against him may be dropped. It is then mentioned that opinion of the Law Ministry had been sought as to whether the disciplinary proceedings could continue despite the court case, and that the aforesaid Ministry while confirming that disciplinary proceedings could continue, had opined that for departmental action to be justified, there should be a nexus between the misconduct for which the Government servant is being proceeded against departmentally and the duty to be performed by him, and further that in the present case this link is not apparent. He further mentioned that it is for consideration whether departmental action against the applicant should be dropped. Shri V. K. Malhotra, Joint Secretary (CS) in his note dated 8.3.1994 inter alia mentioned that though there was no dispute that the disciplinary proceedings are independent of court proceedings and may be initiated irrespective of conviction or acquittal in a given case, the department is to follow the norms of service laws and its permissibility. He also mentioned that in the discussions with the Law Ministry, they pointed out that the provision contained in the Conduct Rules on the basis of which disciplinary action was taken against the applicant was incorporated in the year 1959, and that a sea-change has taken place during the past 30 years in the development of laws and courts for dealing with cases relating to atrocities on women, and in view of this the proper forum for fighting the case by the wife would be a court of law. He further mentioned that there does not appear to be any nexus between the duty performed by the applicant and his estranged relations with his wife, and that he had already filed a divorce suit in the court. While referring to some other aspects of the case, he in the operative part of the note mentioned as follows:
7. In the light of the above, the following position emerges:
(i) From a practical point of view it will serve no purpose in carrying on disciplinary proceedings.
(ii) The Law Ministry in their lengthy note at pages 48-50/N are of the view that the present case does not appear to be a fit case for taking departmental action against the officer and the proper forum for this will be a Court of Law.
(iii) The Law Ministry have also stated at page 19/N that the behaviour which is being viewed as misconduct may be a matter of personal belief or non-belief of the employee concerned. It may be such to the displeasure of disciplinary authority concerned but if the behaviour has no nexus with the duty performed by the Govt. servant, the same cannot be branded as a misconduct under the rule. We find from the records and in particular, the counter reply filed on behalf of the respondents, that the concerned Ministry did not agree with the proposal to drop the disciplinary proceedings against the applicant. A note by PS to Home Minister dated 21.3.94 referred to in the counter, reads as follows:
HM has perused and does not agree with the proposed dropping of the disciplinary proceedings against Dr. J Mahanta because demanding dowry, ill-treating wife, deserting wife and children by an officer are serious matters.
4. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their counter reply contested the cause of the applicant. The facts are not in dispute at all. The respondents in their reply would, however, contest the cause of the applicant on the ground that this Tribunal, as per settled law, would not interfere at the very initial stage in quashing or setting aside a chargesheet, and further that the conduct alleged against the applicant is indeed a misconduct as per relevant rules and, therefore, the disciplinary proceeding against the applicant need to be brought to its logical end.
5. The applicant has filed rejoinder, wherein it has inter alia been pleaded that insofar as, the allegations levelled by his wife are concerned, the same are false, and in fact, the complaint filed by his wife was false to her own knowledge also, and that there is no question of abandonment of the minor son, namely, Biswa Prakash. It is pleaded that the applicant had showered all love and affection on all the family members, i.e., his wife and sons, but unfortunately, he became the victim of false allegations by his wife after more than 20 years of their marriage. He not only showered love and affection but also provided all financial help to his son Biswa Prakash by getting him admitted in boarding school and getting him good education from various institutes where he studied and did his engineering, and from another celebrated/famous institute, i.e., SYMBOSIS, Pune. It is further pleaded that the allegations levelled by his wife are concerning domestic affairs only and the same would not come within the purview of CCS (Conduct) Rules. The applicant has averred that he is not giving the details of harassment meted out to him by his wife as at present he is concerned with the chargesheet issued to him, which, according to him, does not pertain to his conduct in discharge of his official duties. It is, however, pleaded that his wife was living in the spacious official accommodation so provided by the office, while he was living in a small rented room, and HRA used to be deducted from his salary and even other charges used to be paid by him only.
6. We have heard the learned counsel representing the parties and with their assistance examined the records of the case.
7. Before we may proceed to determine the controversy as reflected above, we may mention that on an earlier occasion when the matter came up for hearing before us, we enquired from Shri Bhardwaj, learned counsel representing the respondents, as to whether the departmental proceedings against the applicant would be advisable and of any meaning and consequence at this stage when he has already retired. Learned counsel sought time to have instructions, and reported that despite the applicant having retired, he has instructions to contest this matter as the department would like to proceed against him even at this stage. When the arguments were concluded in the matter, we required Shri Bhardwaj to make available to us the complaint made by the wife of the applicant on the basis of which charge memo dated 30.8.1993 came into being. He has handed over to us copy of the complaint dated 30.7.1992. The same has been addressed to the Home Secretary, Government of India, with the caption Financial help to Smt. Kiran Mala Mahanta for maintenance of herself and her children and for paying the family debt on a/c of her husband Dr. J. Mahanta, Reader in Psychology, Institute of Criminology and Forensic Science, Sector III, Rohini, New Delhi-85. The ultimate prayer in the complaint aforesaid reads as follows:
Respected sir I request your kind honour for paying a sum of Rs.15000/- to me immediately from the G.P.F. of my husband for the maintenance of my children necessities and myself as well as Rs.800/- P.M. house rent and Elect. and Water charges etc. charges for the last 1= years which I have to pay to the house owner. I hope that you will do the needful and to instruct the Director NICF for avoid me from this harassment as well as look after us. You are the appropriate authority to settle this matter at your end. In the complaint aforesaid, the wife of the applicant has stated that she was married to the applicant in the year 1973 and now she was mother of two children, and that since the date of their marriage, the applicant was dissatisfied with her for bringing in insufficient dowry, and accordingly demanding furniture, colour TV, cash etc., but she could not fulfill the wishes of her husband due to financial condition of her parents. She further stated that she and her two minor children were economically dependent upon the applicant, and that he had mercilessly beaten her many times during these years, to which she did not protest in the hope that wisdom would ultimately prevail upon him and he would realize his mistakes and behave. She then stated that the applicant had left her and their minor children in July, 1990 in their rented house, and that he neither returned nor paid any money to her. She also stated that one day the applicant picked up their minor son named Biswa Prakash aged 9 years in her absence. She further stated that she had gone to his office on 6.5.1992 to see the Director, NICFS but his Sr.PA refused her to do so and told that the Director did not desire to see her because it was a personal matter. She again visited NICFS on 2.7.1992 to see her child and for financial assistance from the applicant. She first went to the house of Shri H. M. Gupta as well as Dr. Rajvanshi of the same office. The applicant started abusing them and her also, and physically kicked her out. However, the allegations which have been made in the complaint aforesaid are with the ultimate prayer for financial assistance, as reproduced above. On the factual aspects of the case, it remained undisputed during the course of arguments that insofar as, articles of charge III, IV, V, VI, VII and VIII are concerned, the same are exclusively in the domain of private dispute between husband, wife and children. In fact, insofar as articles I and II are concerned, the same too could not be disputed to be family affairs, even though Shri Bhardwaj would contend that for such personal family disputes as subject matter of charge of articles I and II, departmental proceedings can well be initiated. In his endeavour to make good the contention as mentioned above, the counsel would rely upon rule 13-A of the CCS (Conduct) Rules (inserted vide G.I. notification dated 13.2.1976, published in Gazette of India dated 20.2.1976), which reads as follows:
13-A. Dowry No Government servant shall give or take or abet the giving or taking of dowry; or demand directly or indirectly, from the parent or guardian of a bride or bridegroom, as the case may be, any dowry.
Explanation. For the purposes of this rule, dowry has the same meaning as in the Dowry Prohibition Act, 1961 (28 of 1961). Reliance is also placed upon Government of India decision 12 below rule 3-C of the CCS (Conduct) Rules, relevant part whereof reads as follows:
The question has been examined and it has been decided that it will not be possible to make such a provision in the Conduct Rules as it would entail administrative difficulties in implementing and enforcing it. However, a Government servant is expected to maintain a responsible and decent standard of conduct in his private life and not bring discredit to his service by his misdemeanours. In case where a government servant is reported to have acted in a manner unbecoming of a Government servant, as for instance, by neglecting his wife and family, departmental action can be taken against him on that score without invoking any of the Conduct Rules. In this connection, a reference is invited to Rule 13 of the CCS (CCA) Rules, 1957 (now Rule 11), which specifies the nature of penalties that may, for good and sufficient reasons, be imposed on a Government servant. It has been held that neglect by a Government servant of his wife and family in a manner unbecoming of a Government servant may be regarded as a good and sufficient reason to justify action being taken against him under this rule.
It should, however, be noted that in such cases the party affected has a legal right to claim maintenance. If any legal proceedings in this behalf should be pending in a Court of Law, it would not be correct for the Government to take action against the Government servant on this ground as such action may be construed by the Court to amount to contempt. The Government of India decision 12 below rule 3-C, it would appear, came into being vide notification dated 1.9.1959. Shri Bhardwaj also placed reliance upon note (4) of Notes on CCS (Conduct) Rules, 1964 under decision 23 below rule 3-C. The same reads as follows:
(4) if the act or conduct of the servant is so grossly immoral that all reasonable men will say that the employee cannot be trusted;
8. Allegations in article of charge reproduced above enumerated at Sl. No. III to VIII, as mentioned above, are wholly unrelated to duties and responsibilities of the applicant in discharge of his duties. By no stretch of imagination, the applicant could be departmentally tried on such article of charge. Allegations levelled by the wife of the applicant concerning domestic affairs would not come within the purview of CCS (Conduct) Rules, 1964. Pure and simple domestic, matrimonial or private disputes, in our considered view, would not be covered by the Rules of 1964. The part of article of charge VI pertaining to the applicant abusing Shri H.M.Gupta, Caretaker and Dr. A.C.Rajvanshi, AD on 2.9.1992, once again, if not an matrimonial dispute, the same would be a private dispute having no connection whatsoever with his conduct in discharge of official duties. There is practically no dispute on this aspect of the case. The controversy, however, veers thick on articles of charge I and II in the charge memo dated 30.8.1993 reproduced above. Before we may, however, comment and adjudicate upon the issue pertaining to articles I and II, it would be appropriate to make a mention of relevant provisions contained in the Rules of 1964.
9. By virtue of provisions contained in rule 3 of the Rules of 1964, which is general, every government servant shall at all times maintain absolute integrity, devotion to duty and do nothing which is unbecoming of a government servant. Whereas, maintaining absolute integrity and devotion to duty is directly related to the duties and responsibilities of a government employee in discharge of his duties, we are of the considered view that prohibition to do something which is unbecoming of a government servant too would be related to duties and responsibilities of a government employee, as otherwise even the considered social evils like consuming liquor at home would become a misconduct or something unbecoming of a government servant, capable of departmental enquiry. In that event, as no one in this world is so perfect so as not to do anything which may be a considered social evil, or small infractions which may not be expected from a human being following strictly ideal path in life, could be raked up in departmental proceedings, then if not all, majority of the employees, instead of doing their official duties, may be facing departmental enquiries only. Heated altercation between husband and wife, remonstrating or beating children, are normal wears and tears of life, but strictly speaking, the same may be unbecoming of any human being. The same cannot, however, become subject matter of enquiry on the plea that it is unbecoming of a human being to do so. Further, the words unbecoming of a Government servant (emphasis supplied) would necessarily mean that the element of unbecoming has to relate to official duties of an employee. Rule 3-A enjoins upon an employee to be prompt and courteous. No government servant shall in the performance of his official duties, act in a discourteous manner, or otherwise adopt dilatory tactics or wilfully cause delays in disposal of the work assigned to him. It is significant to mention that the behaviour of a government servant is to be courteous only when he is performing his official duties or dealing with public. A person can be discourteous to his wife, children, friends and others, but should that result into departmental proceedings? In our considered view, the answer has to be an emphatic NO. Rule 3-B deals with observance of governments policies, whereby every government servant is required to at all times act in accordance with the governments policies regarding age of marriage, preservation of environment, protection of wildlife and cultural heritage, and observe governments policies regarding prevention of crime against women. Once again, emphasis is to act upon policies laid down by the government. Rule 3-C deals with prohibition of sexual harassment of working women, whereby no government servant shall indulge in any act of sexual harassment of any woman at her work place. This again, would be connected with the discharge of duties of an employee. Rule 3-C reads as follows:
3-C. Prohibition of sexual harassment of working women (1) No Government servant shall indulge in any act of sexual harassment of any women at her work place.
(2) Every Government servant who is incharge of a work place shall take appropriate steps to prevent sexual harassment to any woman at such work place.
Explanation - For the purpose of this rule, sexual harassment" includes such unwelcome sexually determined behaviour, whether directly or otherwise, as --
(a) physical contact and advances;
(b) demand or request for sexual favours;
(c) sexually coloured remarks;
(d) showing any pornography; or
(e) any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. Insofar as, decision 12 below rule 3-C is concerned, it appears to us that the same is wholly unrelated to prohibition of sexual harassment of women at work place. Validity of decision 12 aforesaid has not been challenged and, therefore, we need not comment anything thereon. However, we may hasten to add that perhaps such a decision could not be taken under rule 3-C, which is wholly unconnected with sexual harassment of working women. Decision 12, insofar as the same is relevant, has already been reproduced hereinabove. Perusal of the same would manifest that a government servant is expected to maintain a responsible and decent standard of conduct in his private life and not bring discredit to his service by his misdemeanours, and in cases where a government servant is reported to have acted in a manner unbecoming of a government servant, as for instance, by neglecting his wife and family, departmental action can be taken against him on that score. It is, however, clearly mentioned in the decision that the Conduct Rules need not be invoked in that situation. If the Conduct Rules are not to be invoked, what would be the procedure for taking action, has not been specified. We need not, however, go into that question, as surely, in the present case the Conduct Rules have been invoked, which would not have been permissible even if decision 12 aforesaid was to have applicability in the facts and circumstances of the present case. That apart, it is clearly mentioned in the decision aforesaid that in such cases the party affected has a legal right to claim maintenance, and if any legal proceedings in this behalf should be pending in a court of law, it would not be correct for the government to take action against the government servant on this ground, as such action may be construed by the court to amount to contempt.
10. After we reserved the order in this case on 25.11.2008, while preparing the judgment we found that even though, there was passing reference to a divorce petition pending, there was no elaboration of the facts and in particular, as to whether wife of the applicant had made an application for maintenance. The matter was thus listed for re-hearing. Shri Bhardwaj, learned counsel representing the respondents, has shown to us a letter dated 11.12.2008. Annexed with the letter aforesaid is the information gathered by the department from the applicant, as sought for by this Tribunal on re-hearing. We order the same to be placed on records. It has been mentioned on the basis of the letter aforesaid, that way back in 1994 wife of the applicant had instituted proceedings u/s 24 of the Hindu Marriage Act, 1955 in the court of learned ADJ, Shri S. M. Chopra, Tis Hazari Courts, Delhi, and that her petition u/s 125 Cr.PC is still pending adjudication in the court of learned MM, Ms. Kiran Gupta, Rohini, Delhi, and further that she had instituted several proceedings before Delhi Police. Even though, the information supplied to us is on the basis of the letter of the applicant, but during the course of arguments there is no dispute on that. Once, a divorce petition under the Hindu Marriage Act is pending since 1994, the contention of Shri Bhardwaj based upon decision 12 aforesaid would not have any merit. We are conscious that the memorandum proposing to proceed against the applicant under rule 14 of the CCS (CCA) Rules came into being on 30.8.1993, i.e., before the wife of the applicant filed an application u/s 24 of the Hindu Marriage Act, 1955 seeking maintenance, but it may be recalled that the department itself was not sure as to whether such proceedings would be legally permissible, and though opinion of the Law Ministry was sought, while disagreeing with the opinion of the Law Ministry, decision was taken to departmentally proceed against the applicant in 1994. From various notes reproduced above, it is apparent that petition for divorce was filed before a final decision was taken in the matter to departmentally proceed against the applicant. Once, a petition for divorce was pending, in which the wife of the applicant had also made application for maintenance, and further that she had also made an application u/s 125 Cr.PC for grant of maintenance, decision 12 of the government below rule 3-C of the Conduct Rules could not be invoked.
11. Insofar as, the contention of Shri Bhardwaj based upon clause (4) of Notes on CCS (Conduct) Rules, 1964 under decision 23 below Rule 3-C is concerned, the same, in our view, would be wholly inapplicable in the facts and circumstances of this case. Decision 23 enlists ten instances where acts and conducts of a government servant may amount to misconduct, and nine acts and omissions which may amount to misconduct. As per clause (4), the act or conduct of a government servant would be misconduct if the same is so grossly immoral that all reasonable men will say that the employee cannot be trusted. In none of the articles of charge detailed above, the conduct of the applicant is such as may be grossly immoral. Desertion of wife and minor children by the applicant, picking up minor son in the absence of his wife, having locked the minor son in the room, abusing Shri H.M.Gupta, Caretaker and Dr. A. C. Rajvanshi, AD when his wife approached them at their residence, physically kicking his wife, and not paying rent for the rented house where his wife and children were staying, may be such acts which a normal human being may not indulge into, but surely, no immorality is involved in the same. Further, it appears that immorality by which all reasonable men may say that the employee cannot be trusted, has to have some nexus with his official duties.
12. Insofar as, rule 13-A prohibiting demanding directly or indirectly any dowry, is concerned, the same is already subject matter of decision by the court of competent jurisdiction, exclusively dealing with such issues. If the neglect of wife and children is sub judice before a competent court and for that reason departmental proceedings cannot be ordered against an employee, the same principle has to apply when there may be allegation of demand of dowry by the wife. Decision 12 below rule 3-C for not invoking the Conduct Rules when allegation against an employee is that he has acted in a manner unbecoming of a government servant, as for instance by neglecting his family, even though departmental action can be taken, would apply in case of demand of dowry as well. Once again, the said decision that in case the matter is before a court, departmental action should not be taken, would also apply. The decision aforesaid appears to be based upon a sound logic. In either case, be it a case of demand of dowry or neglecting wife and family, specified courts having exclusive jurisdiction in the matter have been constituted and once, a direct issue is before such court, no other authority should embark upon the exercise, which is in the exclusive domain of such courts. Simultaneous proceedings in such courts and departmental proceedings before the concerned authorities will result in anomalous situation and would create chaos. To illustrate, findings recorded by courts or tribunals having exclusive jurisdiction in the matter would have precedence over the findings recorded by the enquiry officer in departmental proceedings, and in case a contradictory finding is recorded by the enquiry officer in departmental proceedings, the entire exercise gone into by the departmental authorities would be an exercise in futility. We are of the considered view that the misconduct alleged against an employee has to have some nexus with performance of his duties. The Honble Supreme Court in Rasiklal Vaghajibhai Patel v Ahmedabad Municipal Corporation & Another [AIR 1985 SC 504], while commenting upon a finding returned by the High Court that even if the allegation of misconduct does not constitute misconduct amongst those enumerated in the relevant service regulations, yet the employer can attribute what would otherwise per se be a misconduct, though not enumerated, and punish the employee for the same, held as follows:
.This proposition appears to us to be startling because even though either under the Certified Standing Orders or service regulations, it is necessary for the employer to prescribe what would be the misconduct so that the workman/employee knows the pitfall he should guard against. If after undergoing the elaborate exercise of enumerating misconduct, it is left to the unbridled discretion of the employer to dub any conduct as misconduct, the workman will be on tenterhooks and he will be punished by ex post facto determination by the employer. It is a well-settled canon of penal jurisprudence that removal or dismissal from service on account of the misconduct constitutes penalty in law - that the workmen sought to be charged for misconduct must have adequate advance notice of what action or what conduct would constitute misconduct. While holding as extracted above, the Apex Court placed reliance upon its earlier decision in Glaxo Laboratories v Presiding Officer, Labour Court, Meerut [AIR 1984 SC 505], wherein it was held as follows:
Relying on these observations, Mr. Shanti Bhushan urged that this Court has in terms held that there can be some other misconduct not enumerated in the standing order and for which the employer may take appropriate action. This observation cannot be viewed divorced from the facts of the case. What stared in the face of the court in that case was that the employer had raised a technical objection ignoring the past history of litigation between the parties that application under Sec. 33A was not maintainable. It is in this context that this Court observed that the previous action might have been the outcome of some misconduct not enumerated in the standing order. But the extracted observation cannot be elevated to a proposition of law that some misconduct neither defined nor enumerated and which may be believed by the employer to be misconduct ex post facto would expose the workman to a penalty. The law will have to move two centuries backward to accept such a construction. But it is not necessary to go so far because in Salem Erode Electricity Distribution Co. Ltd. v. Their Employees Union (1966) 2 SCR 498 (AIR 1966 SC 808), this Court in terms held that the object underlying the Act was to introduce uniformity of terms and conditions of employment in respect of workmen belonging to the same category and discharging the same or similar work under an industrial establishment, and that these terms and conditions of industrial employment should be well-established and should be known to employees before they accept the employment. If such is the object, no vague undefined notion about any act, may be innocuous, which from the employer's point of view may be misconduct but not provided for in the standing order for which a penalty can be imposed, cannot be incorporated in the standing orders. From certainty of conditions of employment, we would have to return to the days of hire and fire which reverse movement is hardly justified. In this connection, we may also refer to Western India Match Co. Ltd. v. Workmen (1974) 1 SCR 4,34 : ( AIR 1973 SC 2650) in which this Court held that any condition of service if inconsistent with certified standing orders, the same would not prevail and the certified standing orders would have precedence over all such agreements. There is really one interesting observation in this which deserves noticing. Says the Court (at P. 2653 of AIR) :
In the sunny days of the market economy theory people sincerely believed that the economic law of demand and supply in the labour market would settle a mutually beneficial bargain between the employer and the workman. Such a bargain, they took it for granted, would secure fair terms and conditions of employment to the workman. This law they venerated as natural law. They had an abiding faith in the verity of this law. But the experience of the working of this law over a long period has belied their faith. Placing reliance upon some other judgments as well, it was held, thus:
In short it cannot be left to the vagaries of management to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant standing order is nonetheless a misconduct not strictly failing within the enumerated misconduct in the relevant standing order but yet. a misconduct for the purpose of imposing a penalty. Accordingly, the contention of Mr. Shanti Bhushan that some other act of misconduct which would per se be an act of misconduct though not enumerated in S. O. 22 can be punished under S.O. 23 must be rejected. The Punjab & Haryana High court in Bal Kishan v Municipal Corporation, Faridabad [2002 (4) SLR 237], held as follows:
It is the right of the employer to proceed departmentally against ifs Officer/Official if such officer/official commits such acts of commission or omission in the discharge of his official duties. Before a public servant is to be charge-sheeted the employer has to keep in his mind that charges must be in relation to the duties which are likely to be discharged by a public servant during the course of employment. Such public servant can also be charge-sheeted for his act of omission if those acts of omission flow from his duties. However, in the present case, the reading of the charges would show that none of the charge relates to the duties of the petitioner. While observing as above, the chargesheet against the petitioner was quashed. A single bench of the Gujarat High Court in Bodu Tarmamad v District Superintendent of Police, Jamnagar & Another [1988 (2) SLR 65], wherein the charge against the employee was that he was a married man and yet he allowed a Hindu girl to stay with him in the Police line quarter, without performing marriage ceremony either as per Hindu rites or Mohammedan religion, and while interpreting the unbecoming conduct of a government servant as defined in rule 3(1)(iii) of the Gujarat Civil Services (Conduct) Rules, 1971, held as follows:
13. The word unbecoming is not defined in the rules in question. Therefore, we have to go by the dictionary meaning of the word. Dictionary meaning of the word unbecoming is indecorous, not proper or befitting, not suited to the wearer. In the context of the rules it would mean either indecorous or not proper or befitting. However, while considering the conduct of a Government servant it is to be kept in mind that the conduct should be indecorous or improper as a Government servant. The disciplinary authority cannot determine the nature of conduct as indecorous or improper as per his own norms of behaviour and beliefs. Some guidelines are inherent in the Rules, and it is necessary that the same may be kept in mind
13. In view of the discussion made above, the charges as framed against the applicant in the articles of charge as reproduced above, in our view, cannot become the subject matter of departmental enquiry. That apart, there does not appear to be any justification for continuing the departmental enquiry against the applicant on the charges as mentioned above at this stage, when he has already retired. The applicant insofar as, his service record is concerned, had no blemish. He completed his tenure of service after a long spotless service career. In our view, whereas he may be still embroiled in matrimonial dispute with his wife, there would be no justification to carry on with the departmental proceedings against him.
14. For the reasons mentioned above, charge memo dated 30.8.1993 is quashed. We may mention that no proceedings had been taken after serving of the charge memo dated 30.8.1993, even though, there was no stay granted to the applicant by the court of first instance where he initially filed the suit, or by the appellate court. The applicant, of course obtained stay when he filed RSA before the High Court in 2004.
15. This Application is allowed in the manner indicated above, leaving, however the parties to bear their own costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/