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Judgment
R. H. Zaidi, J.—Petitioner, who was employed as Instructor in Discipline of Welding in Govt. Industrial Training Institute, Naini, filed the present petition under Article 226 of the Constitution of India, challenging the validity of the order dated 19121994, whereby he was removed from the service by the Asstt. Director (Administrator) and the order dated 131295 passed by the Director, Industrial Training & Employment U.P. Rozgar Bhawan, Lucknow, dismissing his appeal filed against the order of removal noted above.
This case was heard on 2496 ; but disagreeing with the submissions made by the learned Counsel, it was dismissed and reasons for the order were directed to follow. In the meanwhile, learned Counsel for the petitioner made an application for recalling the order dated 2496 and to afford him an opportunity to address the Court. After hearing the Counsel for the parties, the said application was allowed. Case was again heard and thereafter judgment was reserved on 6397.
The relevant facts of the case, in brief, are that on 20692, a complaint was made by Smt. Kesari Devi, wife of the petitioner that the petitioner had illicit connection with Smt. Urmila Devi and was keeping her as his mistress. On the said complaint, preliminary enquiry was made and the allegations were found to be correct. Thereafter, disciplinary proceedings were proposed to be initiated and the Joint Director of Education was appointed as Enquiry Officer. A charge sheet was served upon the petitioner levelling three charges against him, that he was keeping a mistress during the life time of his wife, he has shown Km. Rita as his daughter in G.P.F. Pass Book, took loan for her marriage, although Km. Rita was not his daughter and that he shown Smt. Urmila as his wife and nominated her, although he was never married with her. Petitioner in reply to the aforesaid charges filed his explanation on 141293. Thereafter, enquiry was conducted and petitioner was found guilty of the charges levelled against him. A notice was issued against him on 19694 to show cause as to why he be not dismissed from service. Petitioner submitted his explanation/reply of the said notice on 16794 denying the charges levelled against him and requested for dropping the proceedings. The Punishing Authority, Asstt. Director (Administrator) held that the petitioner was guilty of misconduct and violation of Rules 3 (2), 18 and 29 of the U.P. Govt. Servant Conduct Rules. Having recorded the said findings, he removed the petitioner from service vide order dated 191294. Thereafter, petitioner filed an appeal before respondent No. 2, who also affirmed the findings recorded by the punishing authority & dismissed the appeal by his order dated 131295 as stated above. The said orders of punishing and the appellate authority have been challenged by the petitioner in the present petition.
Learned Counsel for the petitioner vehemently urged that from the evidence on the record, second marriage of the petitioner with Smt. Urmila Devi was not proved. He asserted that unless the factum of marriage with it essential ingredient i.e. "Saptapadi", is proved, petitioner cannot be held guilty of misconduct under Rule 29 of the said Rules. He has further asserted that mere keeping a mistress in the life time of a wife does not constitute misconduct within the meaning of Rule 29 of the said Rules. He has vehemently urged that in any view of the matter the punishment of removal awarded against the petitioner on the charges levelled against him, was quite harsh and not commensurate to the charges proved against him, therefore, was liable to be quashed.
On the other hand, learned Standing Counsel submitted that the findings recorded by the punishing authority on the charges levelled against the petitioner are findings of fact, which are based on the relevant evidence, which formed part of the record and the same cannot be interfered with under Article 226 of the Constitution of India. It was also urged by him that the petitioner himself having admitted the factum of marriage with Smt. Urmila Devi, was estopped from contending that he was not guilty of misconduct, inasmuch as under Rule 29 of the said Rules second marriage during the life time of first wife was a misconduct. It was further urged that the petitioner himself admitted that Km. Rita was not his daughter and that he took loan for her marriage was guilty of violation of Rules 3 (2) and 18 of the said Rules.
I have considered rival submissions made by the learned Counsel for the parties and also perused the record carefully.
Subrule (2) of Rule 3 and Rule 29 of U.P. Govt. Servant Conduct Rules, are relevant for the purpose of the present case, which are reproduced below:
"3 (2). Every Govt. servant shall at all times conduct himself in accordance with specific or implied orders of the Govt. regarding behaviour and conduct, which may be in force."
"29 (1) No Government servant, who has a wife living shall contract another marriage without first obtaining the permission of the Govt. notwithstanding, that such subsequent marriage is permissible under the personal law for the time being applicable to him.
(2) No female Govt. servant marry any person, who has a wife living, without first obtaining permission of the Govt.
(3) a minor punishment to be imposed in contravention of the sub rule (1) or subrule (2), shall be withholding of the increments for three years."
Petitioner in his reply to the show cause notice submitted on 141293, stated as under:
From a perusal of the aforesaid paragraph, it is revealed that the petitioner categorically admitted that Smt. Urmila was living with him as his mistress and he had illicit relation with her and that she gave birth to children. He has also admitted that he got entered the name of Smt. Urmila as his nominee in the G.P.F. pass book. He further admitted that Km. Rita was not his daughter but she was also shown as his daughter in the G.P.F. account and he also took loan for her marriage from the said account.
There may not be strict proof of performance of Saptapadi between petitioner and Smt. Urmila, but from their long living as husband and wife and procreation of children by them, their marriage may be presumed, otherwise it will give rise to immorality in the services of the State. As people shall start keeping mistresses to save their skin from the clutches of Rule 29 of the aforesaid Rules.
The findings recorded by the authorities below on the charges levelled against the petitioner regarding their marriage are quite valid, they are based on the aforesaid admission and besides other relevant evidence on the record, the same, therefore, cannot be said to be illegal or erroneous. It is well settled law, that admission is the best evidence, which can be used against the party making it. The petitioner was thus rightly held to be guilty of misconduct by the authorities below.
So far as the question of showing Km. Rita as his daughter in the G.P.F. pass book is concerned, Rule 18 of the U.P. Govt. Servant Conduct Rules provided as under:
"18. Guardianship of minor.A Govt. Servant may not without previous sanction of the appropriate authority act as a legal guardian of a person or property of a minor other than dependent.
Explanation.(1)A dependent for the purpose of this Rule means a Govt. Servant''s wife, children and step children and children''s children and shall also include his parents ''sisters and brothers'', brothers'' children and sisters'' children, if residing with him and wholly dependent upon him".
Explanation (1) referred to above, clearly shows that brother''s and sister''s children of Govt. servant, if residing with him and are wholly dependent upon him come within the definition of his dependent. In the present case, Km. Rita was the daughter of the petitioner''s brother (niece), who was living with him since very begining and she was wholly dependent upon him as it is evident from the explanation submitted on 141293. The petitioner, therefore, did not commit any act of misconduct or breach of aforesaid Rule in showing Km. Rita as his daughter in the G.P.F. pass book and in taking loan therefrom for solemnizing her marriage.
So far as the question of punishment is concerned, learned Counsel for the petitioner has vehemently urged that the punishment of removal from service awarded to the petitioner was quite harsh and disproportionate to the charge proved against him. He submitted that the charge of misconduct, if not serious cannot entail major punishment of dismissal, removal from service or reduction in rank. It was further stressed that in the present case, the petitioner has stated, in detail, his domestic problems and the circumstances under which he was compelled to keep Smt. Urmila Devi as his mistress. It has been stated that petitioner was married when he was aged about 10 years only with Smt. Kesari Devi, who was about 7 years elder to him, his father developed illicit relationship with Smt. Kesari Devi and that both have been leading immoral life. He has also stated that circumstances under which Smt. Kesari Devi has left him and he was compelled to keep Smt. Urmila Devi as his mistress.
Learned Counsel for petitioner further submits that presence of Smt. Urmila Devi in the house of the petitioner did not in any manner interfere with nor obstructed his official duties which he has performed with dedication and sincerity. In support of his submission, learned Counsel for petitioner placed reliance upon the decision in Rannt Thakur v. Union of India, AIR 1987 S.C. 2386, wherein it was ruled as under by the Apex Court of the country:
"Re: contention (d): Judicial Review generally speaking, is not directed against a decision but is directed against the "decision making process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court Martial. But the sentence has to suit the offence and the offender. It should not be so disproportionate to the offence as to shock the conscience and amount it itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is otherwise within the exclusive province of the Court Martial, if the decision of the Court even as to sentence is not outrageous defiance of logic then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. In Council of Civil Service Union v. Minister for the Civil Service (1984) 3 WLR 1174 (HL) Lords Deplock said:
"........Judicial review has, I think, developed a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subjected to control by judicial review. The first .ground I would call ''illegality'' the second ''irrationality'' and the third ''procedural impropriety. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in future of the principle of ''proportionality'' which is recognised in the administrative law of several of our fellow members of the European Economic Community."
In Bhagat Ram v. State of Himachal Pradesh, A.I.R. 1983 S.C. 454 (at page 460) this Court held:
"It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Art. 14 of the Constitution."
The point to note and emphasise is that all powers have legal limits.
In the present case, the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review."
In view of the aforesaid decision, the punishment should be proportionate to the charge proved against the employee. In the present case, misconduct, which has been imputed to the petitioner has not in any manner affected the discharge of his official duties, as the authorities below did not record any finding to that effect. In my opinion, therefore, the punishment of removal from service awarded to the "petitioner is harsh and not commensurate to the gravity of the charge proved against him and same is liable to be quashed.
The writ petition succeeds and is allowed. The order of removal from service dated 19121994 and the order dated 13121995, passed by the Director, Industrial
Training and Employment, dismissing the appeal filed by the petitioner, are quashed. Respondents are directed to reinstate the petitioner in service within one month form the date a certified copy of this order is produced before respondent No. 1. It is, however, observed that it will be open to the respondent No. 1 to award only minor punishment as the petitioner cannot be allowed to go scot free for the admitted misconduct within the meaning of Rule 29 of the said Rules. Subrule (3) of Rule 29 of the said Rules itself provides for minor punishment of withholding of increment for 3 years only, for violation of subrules (1) and (2).
Petitioner will be entitled to his back wages only for year as he has not admittedly after 191294 rendered any service to the department. There shall be no order as to costs.