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1998 Supreme(Guj) 445
Gujarat High Court
Judgename :S.K.Keshote
GOVERNMENT OF GUJARAT - Appellant
Versus
SHIVABHAI S.MAKWANA - Respondent
C.A. 1075 of 1988
Decided On : 08/15/1998
Headnote:Service & Employment - Dismissal - Misconduct of keeping a Mistress - Such conduct falls under the category of un-becoming of a Govt. Servant and deserves to be severely dealt with - Held, such Officer liable to be removed from service - Gujarat Civil Services (Conduct) Rules, 1971 - Rules 3 & 26 - Do nothing which is un-becoming of a Govt. Servant.
Rule 3 of the Rules, 1971 requires that every Government servant shall all the time maintain absolute integrity, maintain devotion to duty and do nothing which is unbecoming of a Government servant. Rule 26 of the Rules, 1971 prohibits Government servant from entering into or contracting a marriage with a person having his spouse living and no Government servant having his spouse living shall enter into or contract a marriage with any person. Proviso to this Rule provides that the State Government may permit a Government servant to enter into, or contract, any such marriage as is referred to in Sub-rules (1) and (2) of this Rule if it is satisfied that such marriage is permissible under the personal law applicable to such Government servant and either party to the marriage and there are other grounds for doing so.
[Para 18]
To keep services clean and free from corruption and to avoid it of being polluted by unscrupulous employees, it is utmost necessary and foremost essential that the Government servant should not enhance their demands and expenses. It is true that heavy expenses of bare necessity of livelihood are to be borne out and the Government servant has to arrange his expenses within four corners of his receipts. In case he has undertaken extra expenses for fulfilment of his lust and luxury then certainly he has to indulge in some illegal activities, malpractice and corruption. In a case where the Government servant is found keeping a mistress or concubine, it should not have been taken lightly and on proof thereof, it is certainly a case which falls under the category of unbecoming of a Government servant and he should have been severely dealt with. Extra-marital relations by a Government servant is certainly not only objectionable for keeping the service clean and free from being polluted by corruption etc., but also in the larger interest of his own family and society. It is not the only reason why the Parliament has prohibited second marriage in society and by rule making authority a person who is having two wives to be ineligible for appointment in public employment, but also with an object to safeguard interest of women and in larger interest of society and nation.
[Para 22]
In the case in hand, the delinquent-employee (deceased) was a Government servant in the police department in the State of Gujarat. The employees in the police department are under obligation for enforcement of law and order in the country and in case they themselves have come up with such character and conduct it has to be taken more seriously. They are also taken to have basis knowledge of law. In this case, the Trial Court has accepted the findings of the inquiry officer as well as disciplinary authority that the deceased delinquent-employee was keeping a mistress and that finding has not been challenged by the appellant in this appeal.
[Para 24]
In the result, this appeal succeeds and the same is allowed and the judgment and decree of the City Civil Court No. 9, Ahmedabad, passed on 29th April, 1988, so far it relates to second charge No. H/742/700 dated 28.4.1983, is quashed and set aside and the suit of the plaintiff is dismissed. No order as to costs.
[Para 25]
( 1 ) THIS appeal by the State of Gujarat and Dy. Commissioner of Police, Shahibaug, Ahmedabad is filed against the judgment and decree dated 29-4-1988 passed by City Civil Judge, Court No. 9, City Civil Court at Ahmedabad in Civil Suit No. 5886 of 1986 under which the suit of the plaintiff-respondent since deceased, now represented by his legal heir, has been decreed and his dismissal from the services was declared to be illegal and void and he was ordered to be reinstated back in service with full benefits subject to withholding of two grade increments by way of punishment in respect of first charge.
( 2 ) THE facts of the case are that the plaintiff since deceased, now represented by his legal heir (hereinafter referred to as the respondent) was serving as a unarmed police constable in the office of the Police Commissioner, Ahmedabad from 28-2-1980. From 2-6-1980 he was posted in Traffic Branch. Vide memo dated february, 1982 of Deputy Commissioner of Police, Shahibaug, Ahmedabad a charge-sheet was served to the respondent for his misconduct of abusing language and for having been found under the influence of liquor, and for the charge of taking of liquor. A criminal case has also been registered against him in which he was acquitted on 17-1-1992 by the Chief Metropolitan Magistrate, Ahmedabad. On the same charge, the respondent stated in the suit that the Deputy Commissioner of Police punished him after holding a departmental inquiry vide order dated 24-7-1985 by penalty of withholding two grade increments and treating the period of suspension without pay. Against this charge-sheet and penalty imposed, the respondent made the grievances namely, (i) once he has been acquitted in the criminal case he could not have been suspended for same charge in departmental inquiry, (ii) the entire period of suspension after his acquittal in criminal case could have been treated as period on duty, (iii) the charge framed against him is not proved. In the suit, the prayer has been made for declaration of the order of penalty and charge-sheet as are being bad in law and against the principles of natural justice. The respondent then comes up with the further case that after he has been punished for alleged misconduct in first charge-sheet he was served with another charge-sheet in which the misconduct alleged against him was that unbecoming of the Government servant. In second charge-sheet, the alleged misconduct against the respondent was that he was keeping, a mistress. That charge was found proved against him in the departmental inquiry and the penalty of dismissal from services has been given. That order of dismissal and charge-sheet were also subject-matter of challenge by the respondent in the civil suit.
( 3 ) THE suit has been contested by the appellants and on the basis of the pleadings of the parties, learned trial Court framed as many as ten issues in this case, which reads as under : 1. Has the Court no jurisdiction to try the suit ? 2. Whether the plaintiff proves that order of the defendant No. 2 of relating the entire period of suspension without pay is illegal ? 3. Whether the plaintiff proves that order of the suspension by Deputy commissioner of Police is illegal ? 4. Whether the plaintiff proves that the order of finding him guilty of abusive language is against the principles of natural justice and hence bad in law ? 5. Does the plaintiff prove that in enquiry for the second charge of "unbecoming of a Government servant", he was wrongfully deprived of the right of cross- examination by the friend, therefore, denied his right to make proper defence in the charge against him ? 6. Whether the plaintiff proves that in case of second charge defendant No. 2 has not followed the proper procedure ? 7. Whether the plaintiff proves that the second charge is wrongfully held proved against him ? 8. Is the plaintiff entitled to declaration sought in plaint para 18 (1) ? 9. Is the plaintiff entitled to declaration sou
