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HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

D.B. Special Appeal Writ No. 1573/2019

Ms. Rajkumari D/o Shri Surajmal Malawat, Aged About 52 Years,

Resident Of Sub Centre Kannoj, Kekri, Ajmer.

----Appellant

Versus

1.

State Of Rajasthan, Through Principal Secretary to the

Government, Medical And Health Department,

Government Of Rajasthan, Secretariat, Jaipur.

2.

Director, Medical & Health Services, Government Of

Rajasthan, Swasthya Bhawan, C-Scheme, Jaipur.

3.

Joint Director (Administration), Medical & Health Services,

Government Of Rajasthan, Swasthya Bhawan, C-Scheme,

Jaipur.

----Respondents

For Appellant(s)

:

Mr. H.V. Nandwana

Mr. YV Nandwana

Mr. P.C. Sharma

For Respondent(s)

:

Mr. Harshal Tholia

Mr. Avinas Choudhary for

Mr. V.B. Sharma, AAG

HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA

HON'BLE MR. JUSTICE PRAVEER BHATNAGAR

Judgment / Order

04/10/2023

Heard.

This appeal is directed against the order dated 19.08.2019

passed by the learned Single Judge only to the extent the learned

Single Judge has not granted back wages from the date of

termination till the date of reinstatement.

Relying upon the Hon’ble Supreme Court decision in the case

of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak

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Mahavidyalya (D.ED.) and Ors. : (2013) 10 Supreme Court Cases

324, learned counsel for the appellant would submit that once the

order of termination/dismissal is illegal entitling reinstatement,

grant of back wages is a normal rule and the Court may be

required to consider this aspect upon taking into consideration

various relevant factors as stated in para 38 of the decision of the

Hon’ble Supreme Court in the case of Deepali Gundu Surwase Vs.

Kranti Junior Adhyapak Mahavidyalya (D.ED.) and Ors. He would

submit that the appellant is a low paid employee and belonging to

Scheduled Caste. Termination from service was founded on an

allegation of misconduct and the learned Single Judge recorded a

finding that the date on which appellant solemnized second

marriage, specific provision of misconduct was not incorporated in

the rule. The rule specifying second marriage as a misconduct was

incorporated after the date of solemnization of marriage.

Therefore, present is not a case where the reinstatement was

ordered considering the order of punishment as disproportionate

or on the ground of violation of principles of natural justice but on

the ground that no charge-sheet could be issued to the appellant.

Learned counsel for the appellant would further submit that the

appellant’s conduct in engaging second marriage was based on

prevalent form of dissolution of marriage with the first husband

and therefore, it cannot be said that the appellant’s conduct was

such which amounted to misconduct. Therefore, it is prayed that

back wages for the period, during which the appellant remained

out of service, be awarded.

On the other hand, learned counsel for the respondents

would submit that the learned Single Judge after taking into

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consideration the entire aspects of the matter was of the view that

in the circumstances of the case, though consequential benefits of

all other forms were entitled to be extended, the payment of

actual wages was not granted. He would submit that present is a

case where the appellant was alleged to have contracted second

marriage. Even if it may not amount to specific misconduct under

the service rules, the appellant being in government service was

expected to avoid acting in a manner which was unbecoming of a

government servant.

Relying upon decision of the Hon’ble Supreme Court in the

case of Chief Regional Manager, United India Insurance Company

Limited Vs. Siraj Uddin Khan, he would submit that in any case, an

inquiry would be necessary to find out whether the appellant was

gainfully employed du