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2022 Supreme(Guj) 1667
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SANGEETA K. VISHEN, J.
MAHESHBHAI BHURJIBHAI DAMOR – Petitioner
Versus
STATE OF GUJARAT – Respondent
Special Civil Application No. 6952 of 2015
Decided On : 08-02-2022
Advocate Appeared:
For the Petitioner: DIPAN DESAI.
For the Respondent: DHAWAN JAYSWAL.
Headnote:
Constitution of India, 1950 – Article 226, 311 – Gujarat Civil Services (Conduct) Rules, 1971 – Rule 3, 9 –RPF Rules, 1959 – Rule 47 – Conduct Rules, 1971 – Rule 3 – Quashing and setting aside impugned orders – Issue Rule, returnable forthwith, learned Assistant Government Pleader waives service of notice of rule on behalf of respondents – Observations made by this Court in case analogous facts are very much apt to decide present controversy – Held, Court, held that in dispensing with departmental inquiry, authority will have to arrive at a satisfaction that it is not reasonably practicable to follow procedure and it must record reason to show that such satisfaction is arrived at on objective facts and not on whims and caprice – Recording of reasons is inevitable. Considering said principle, in present case, except recording that conduct of inquiry is likely to create an embarrassing position, nothing has been recorded either in order or have been placed on record of Court to substantiate that reasons were recorded by arriving at a satisfaction on objective facts – Therefore, such observation by the authority is nothing but an empty formality – Hence, on this count as well, order deserves to be quashed and set aside – In appeal, though a specific contention was raised by petitioner as regards dispensing inquiry, appellate authority as discussed herein above, except reproducing paragraphs verbatim, has not assigned any reason as to why inquiry was required to be dispensed with – Petition allowed.
JUDGMENT :
SANGEETA K. VISHEN, J.
1. With the consent of the learned advocates appearing for the respective parties, the matter is taken up for final disposal.
2. Issue Rule, returnable forthwith. Mr. Dhawan Jayswal, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondents.
3. The observations made by this Court in the case of Bodu Tarmamad vs. District Superintendent of Police, Jamnagar, 1988 (1) GLH 406 bearing analogous facts are very much apt to decide the present controversy:
“Is the phrase ‘unbecoming of a Government servant’ occurring in Rule 3(1)(iii) of the Gujarat Civil Services (Conduct) Rules, 1971 so much elastic that it can take within its sweep certain behaviour which may cause some displeasure to his superior and which may not be in accord with the personal beliefs and liking of the superior officer? Assumed vagueness of the phrase has rendered an unfortunate Head Constable jobless. Hence the necessity to interpret and understand the precise meaning of the same.”
4. This Court has held that while branding a particular behaviour as misconduct, the first question which is required to be posed is, has this conduct any nexus with the duty to be performed by the Government servant? If so, is it merely a matter of personal belief regarding morals or immoral of the officer concerned? Even so, has it any direct or indirect bearing on the duties to be performed by the employee concerned? Answers to all these questions would determine whether the particular behaviour is misconduct or not. This Court, while allowing the writ petition, quashed and set aside the charges levelled against the petitioner therein holding that the same do not amount to misconduct. Keeping the afroesaid principle in the forefront, and principles laid down in other judgments with almost similar facts, the issue raised in the present writ petition is required to be determined.
5. By this petition, inter-alia, under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the impugned orders dated 27.11.2013 passed by the Joint Police Commissioner, i.e. the respondent no. 4; order dated 19.7.2014 passed by the Police Commissioner, i.e. respondent no. 3 and the order dated 2.12/1.2014/2015 passed by the Inspector General of Police, i.e. the respondent no. 2.
6. Tersely stated are the facts:
6.1 The petitioner was appointed as armed police constable and residing in quarter no. 12/206 in Police Headquarters, Shahibaug with his family. It is the case of the petitioner that the petitioner had developed relation with widow - Surekhaben Rajubhai Mahida, (hereinafter referred to as ‘the lady’) residing at quarter no. 12/208, who was residing with her two children and mother-in-law. According to the petitioner, it is alleged that when the mother-in-law of the lady went to her native in village Gothila, district Panchmahals on 2.11.2012 and 3.11.2012, the petitioner and the lady contacted each other and during the night hours, had spent some time together at the quarter of the lady.
6.2 Shailesh Kalubhai Mahida, brother-in-law of the lady, registered a complaint on 7.12.2012 to the Police Commissioner to take a disciplinary action against the petitioner for the said conduct on his part. Apropos complaint dated 7.12.2012, statements of the complainant, mother-in-law of the lady, petitioner and the lady were taken. In the statement of the lady, it was admitted that she has developed a relationship with the petitioner and the same was with her consent. Further, the petitioner has not exploited her in any manner and on the date of the incident, she herself has called the petitioner from her mobile.
6.3 Based on the said complaint of Shaileshbhai Mahida, the respondent no. 3 issued a show-cause notice dated 10.10.2013 requiring the petitioner to show cause as to why he should not be dismissed from the service on the ground of misconduct of exploiting the widow. The petitioner submitted his re
