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2023 Supreme(MP) 349
IN THE HIGH COURT OF MADHYA PRADESH
Ravi Malimath, CJ, and Vishal Mishra, J.
The State of Madhya Pradesh & Others v. Ram Bhagwan Pathak
Writ Appeal No. 429 of 2022 (Jabalpur): against the order
dated 2.3.2022 passed by in Writ Petition No. 1890 of 2022; Decided on 6.7.2023
B. D. Singh, Deputy Advocate General for appellants/State;
K.C. Ghildiyal with Aditya Veer Singh for respondent.
Headnote:
(1) Law and Morality -- question of morality is universal -- society bound to decay if it fails to maintain standards of decency and morality -- it cannot be moral for one person and immoral for another -- unacceptable that questions of morality are matters of personal belief. [Para 9
(2) Interpretation of Statute -- misconduct and rules -- misconduct is misconduct at any point of time -- placing reliance on rules to contrary cannot be accepted -- rules are intended to aid dispensation of justice -- rules, procedures and statutes created in order to ensure that truth in every case is found out at earliest point of time -- there can be no justice without truth -- intention of framing rules is to ensure that everybody does that which is right and refrains from doing that which is wrong -- they cannot be used to advantage of wrongdoer -- should be interpreted in favour of what is right and what is wrong. [Para 10 (b)
(3) Law and Morality -- law cannot be devoid of morality -- question of morality is inbuilt in every human being, including government servant. [Para 11
(4) Law and Morality -- underlying object of law is to be righteous, good, just and fair -- when any act is questioned, it is to be ascertained as to whether it is done in righteous manner or not -- source of all law is righteous path -- wrong happens when righteous path is deviated -- it can never ever be said that even though act is immoral, wrongdoer goes scot-free since it is not defined in any law -- benefit of lacunae in law can never be extended to either party -- essence of every law is righteousness -- when law is silent on particular issue, righteousness aids in dispensation of justice. (1994) 2 SCC 481, (2012) 5 SCC 370 and (1996) 9 SCC 548 followed. Jus. Malimath Committee on Reforms of the Criminal Justice System relied on. [Paras 12 & 16
(5) Constitution of India -- Art. 226 -- scope of power -- High Court possesses inherent power to render justice, to do what is right and undo what is wrong -- it needs to do that which is necessary to secure ends of justice and prevent abuse of law -- such power requires to be exercised based on facts and circumstances involved in each case -- whenever there is absence of any provision in law, inherent power of Court can be invoked to achieve ends of justice, provided such acts are not expressly prohibited by statute or otherwise -- exercise of such power necessarily depends on discretion and wisdom of Court. [Para 17
(6) Police Regulations (M.P.) -- Reg. 64 (3) -- misconduct -- petitioner police officer -- a minimum degree of morality is called for -- purpose of law is not only to regulate society or run government but also to ensure that persons possessing moral values occupy offices in all three wings of government -- petitioner lived with complainant lady for almost 8 years as husband and wife -- thereafter not taking care of her -- committed various immoral acts -- order of disciplinary authority holding that all charges have been proved, upheld -- order of appellate authority modifying punishment of removal from service to compulsory retirement, set aside -- appellate authority directed to reconsider punishment. [Paras 18, 19 & 21
(7) Departmental Enquiry -- punishment -- wrong that victim has suffered has to be considered while imposing punishment -- it is not for Courts to determine extent of penalty to be awarded -- if Court is of view that punishment is disproportionate, same requires to be reconsidered by disciplinary authority. (2022) SCC Online SC 478 and (1995) 6 SCC 749 followed. [Paras 20 & 21
¼1½ fof/k rFkk uSfrdrk & uSfrdrk dk ç'u loZtuhu gS & ;fn lekt 'kkyhurk vkSj uSfrdrk ds ekunaM dk;e j[kus esa vlQy jgrk gS rks mldk {k; gksuk ck/; gS & dksbZ Hkh dk;Z ,d O;fä ds fy, uSfrd vkSj nwljs ds fy, vuSfrd ugha gks ldrk & ;g vLohdk;Z gS fd uSfrdrk ds ç'u O;fäxr vkLFkk ds fo"k; gSaA ¼iSjk 9½
¼2½ fof/k dk fuoZpu & vopkj rFkk fu;e & vopkj fdlh Hkh le; fcanq ij vopkj gh gksrk gS & rRçfrdwy fu;e dk voyacu Lohdkj ugha fd;k tk ldrk & fu;e U;k;nku esa lgk;rk ds fy, vk'kf;r gksrs gSa & fu;e] çfØ;k,¡ rFkk dkuwu ;g lqfuf'pr djus ds fy, cuk, tkrs gSa fd çR;sd ekeys esa lR; dk irk 'kh?kzkfr'kh?kz yxs & lR; ds fcuk U;k; ugha gks ldrk & fu;e fojfpr djus dk vk'k; ;g lqfuf'pr djuk gksrk gS fd çR;sd O;fä og djs tks lgh gS rFkk og djus ls fojr jgs tks xyr gS & fu;eksa dk mi;ksx nks"kdrkZ ds Qk;ns ds fy, ugha fd;k tk ldrk & mudk fuoZpu bl i{k esa fd;k tkuk pkfg, fd D;k lgh gS vkSj D;k xyrA ¼iSjk 10&ch½
¼3½ fof/k rFkk uSfrdrk & fof/k uSfrdrkfoghu ugha gks ldrh & uSfrdrk dk ç'u ljdkjh lsod lfgr çR;sd ekuo esa lfUufgr gSA ¼iSjk 11½
¼4½ fof/k rFkk uSfrdrk & fof/k dk ewyHkwr mn~ns'; U;k; ijk;.k] dY;k.kdkjh] _tq vkSj fu"i{k gksuk gS & tc Hkh fdlh dk;Z ij ç'u mBk;k tkrk gS] ;g vfHkfuf'pr fd;k tkuk gksrk gS fd og U;k; ijk;.k jhfr esa fd;k x;k gS ;k ugha & leLr fof/k dk lzksr U;k; ijk;.k iFk gS & xyr rc gksrk gS tc U;k; ijk;.k iFk ls fopyu gksrk gS & ;g dHkh ugha dgk tk ldrk fd Hkys gh dk;Z vuSfrd gS- nks"kdrkZ vnafMr jgsxk D;ksafd og fdlh fof/k esa ifjHkkf"kr ugha & fof/k dh deh dk Qk;nk dHkh fdlh i{kdkj dks ugha fn;k tk ldrk & çR;sd fof/k dk lRo U;k; ijk;.krk gS & tc fof/k fdlh fof'k"V fcanq ij ekSu gks rks U;k; ijk;.krk U;k;nku esa lgk;d gksrh gSA ¼1994½ 2 ,l lh lh 481] ¼2012½ 5 ,l lh lh 370 rFkk ¼1996½ 9 ,l lh lh 548 vuqlfjrA U;kŒ eyheFk lfefr dk fjQ‚ElZ~ v‚Q n fØfeuy tfLVl flLVe voyafcrA ¼iSjk 12 ,oa 16½
¼5½ Hkkjr dk lafo/kku & vuqPNsn 226 & 'kfä dh O;kfIr & mPp U;k;ky; dks U;k; djus] tks lgh gS og djus rFkk tks xyr gS mls vufd;k djus dh varfuZfgr 'kfä gS & mls og djuk vko';d gS tks U;k; dk mn~ns'; lqfuf'pr djus rFkk fof/k dk nq:i;ksx jksdus ds fy, vko';d gS & bl 'kfä dk ç;ksx çR;sd ekeys esa varoZfyr rF;ksa vkSj ifjfLFkfr;ksa ds vk/kkj ij fd;k tkuk visf{kr & tc Hkh fof/k es a fdlh mica/k dk vHkko gks- U;k; ds mn~ns'; dks çkIr djus ds fy, U;k;ky; dh varfuZfgr 'kfä dk vkJ; fy;k tk ldrk gS] c'krsZ fd ,sls dk;Z dkuwu }kjk ;k vU;Fkk vfHkO;är% çfrf"k) ugha gksa & bl 'kfä dk ç;ksx vko';dr% U;k;ky; ds foosd vkSj çKk ij fuHkZj djrk gSA ¼iSjk 17½
¼6½ iqfyl fofu;e ¼eŒçŒ½ & fofuŒ 64 ¼3½ & vopkj & ;kph iqfyl vfèkdkjh & uSfrdrk dk de&ls&de U;wure Lrj okaNuh; gS & fof/k dk ç;kstu lekt dks fofu;fer djuk vkSj 'kklu pykuk gh ugha] vfirq ;g lqfuf'pr djuk Hkh gS fd ljdkj ds rhuksa Lda/kksa esa uSfrd ewY;ksa okys O;fä in /kkj.k djsa & ;kph ifjoknh efgyk ds lkFk yxHkx 8 o"kZ rd ifr&iRuh dh Hkk¡fr jgk & rnqijkar mldh ns[kHkky ugha dj jgk & vusd vuSfrd dk;Z fd, & vuq'kklfud çkfèkdkjh dk ;g vfHkfu/kkZfjr djus okyk vkns'k ekU; fd lHkh vkjksi lkfcr gq, & lsok ls gVkus ds naM dks vfuok;Z lsokfuo`fÙk esa mikarfjr djus dk vihy çkfèkdkjh dk vkns'k vikLr & vihy çkf/kdkjh dks naM ij iqufoZpkj djus dk funs'kA ¼iSjk 18] 19 ,oa 21½
¼7½ foHkkxh; t‚ap & naM & naM vf/kjksfir djrs le;] ihfM+r us tks xyr Hkksxk gS ml ij fopkj djuk gksrk gS & vf/kfu.khZr dh tkus okyh 'kkfLr vo/kkfjr djuk U;k;ky; dk dk;Z ugha & ;fn U;k;ky; dh jk; gS fd naM vuuqikfrd gS] rks ml ij vuq'kklfud çkf/kdkjh }kjk iqufoZpkj fd;k tkuk vko';dA ¼2022½ v‚uykbu ,l lh 478 rFkk ¼1995½ 6 ,l lh lh 749 vuqlfjrA ¼iSjk 20 ,oa 21½
ORDER
Malimath, J. -- 1. I.A. No.8256 of 2022 is an application for vacating the interim order dated 5.5.2022. In terms whereof, the impugned order passed by the learned Single Judge was stayed. However, on request of learned counsels, the matter is taken up for final disposal.
2. Assailing the order dated 2.3.2022 passed by the learned Single Judge in allowing the W. P. No.1890 of 2022, the State and its functionaries are in appeal.
3. The case of the writ petitioner is that he was working as an Assistant Sub-Inspector and posted with the 26th Battalion SAF, Guna. A complaint was made by one Smt. Sunita Sharma to the Commandant to the effect that she was a divorcee and the petitioner after marrying her at a temple had established physical relationship with her. The same lasted for almost 8 years. The petitioner was not discharging his obligations towards her. Based on the complaint, a preliminary enquiry was conducted by the Deputy Commandant. The complaint was found to be false. A similar complaint was also made to the Superintendent of Police who conducted an enquiry through the City Superintendent of Police. The report submitted on 5.11.2019, held the petitioner guilty of sending obscene messages to the complainant, chatting with her on mobile, establishing illicit relationship with her etc. On the basis of the said report, a charge sheet was issued to the petitioner and a departmental enquiry was initiated. He was found guilty of the charges except establishing intimate relations. The disciplinary authority disagreed with the finding of the enquiring officer and held that the petitioner is guilty of all the charges. The penalty of removal from service was imposed on the petitioner. Aggrieved by the same, an appeal was filed wherein the penalty of removal from service was modified to that of compulsory retirement. Questioning the same, the instant writ petition was filed.
4. It was contended by the petitioner that the charge framed against him does not fall under the definition of 'misconduct'. Reliance was placed on rule 64(3) of the M.P. Police Regulations to the said extent. The learned Single Judge came to the view that the conduct of the petitioner outside his normal course of duty cannot be considered to be as misconduct. Therefore, the impugned orders of the disciplinary authority and the appellate authority were set aside. The respondents were directed to reinstate the petitioner without any backwages. Aggrieved by the same, the State have filed this appeal.
5. The learned Deputy Advocate General submits that the order passed by the learned Single Judge is erroneous. The learned Single Judge misguided himself in adopting a technical view while considering the case of the petitioner based on the definition of 'misconduct'. The act committed by the petitioner is grave and obscene. He had an illicit relationship with the lady for almost 8 years. Therefore, the same amounts to 'misconduct'. The disciplinary authority has held the charges to be proved. Therefore, the finding of the learned Single Judge being erroneous requires to be set aside by dismissing the writ petition.
6. The same is disputed by Shri K.C. Ghildiyal, learned senior counsel appearing for the counsel representing the respondent/writ petitioner in the appeal. He contends that there is no error committed by the learned Single Judge that calls for any interference. The learned Single Judge has rightly appreciated the material as well as law. That the observations made by the learned Single Judge are based on the facts and circumstances involved and hence, no interference is called for.
7. Heard learned counsels.
8. We have considered the order passed by the learned Single Judge. We are rather in awe of some of the observations made therein. One of the observations made by the disciplinary authority is with regard to the exploitation of woman. The learned Single Judge holds that such observation of exploitation of woman is erroneous and perverse. We fail
