Gujarat High Court
High Court Of Gujarat vs Kamleshkumar Kewalram Alwani on 31 January, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025
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Reserved On : 17/01/2025
Pronounced On : 31/01/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 2172 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 18781 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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Approved for Reporting Yes No
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HIGH COURT OF GUJARAT
Versus
KAMLESHKUMAR KEWALRAM ALWANI & ANR.
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Appearance:
MR SHALIN MEHTA, SENIOR COUNSEL WITH MR HAMESH C
NAIDU(5335) for the Applicant(s) No. 1
SHIVAM DIXIT, ASST GOVERNMENT PLEADER/PP for the Opponent(s)
No. 2
MR VAIBHAV A VYAS(2896) for the Opponent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
CAV JUDGMENT
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1. This application has been filed by the High Court on its administrative side seeking a review/recall of the judgement and order of the Division Bench dated 07 th March 2024. By the aforesaid order, the Division Bench allowed the petition for the reasons stated therein and directed the disciplinary authority to take an appropriate decision on the imposition of punishment, other than major punishment of termination against the delinquent in accordance with the rules.
2. Mr. Shalin Mehta, learned Senior Advocate appearing with Mr Hamesh Naidu for the High Court on its administrative side, made the following submissions:
(a) Mr. Mehta would invite our attention to paragraph 46 of the judgement of the Division Bench and submit that the Division Bench has wrongly paraphrased the order of penalty as one of termination, whereas, it should have been treated as one of dismissal. He would therefore, submit that there was a typographical error in the judgement Page 2 of 27 Uploaded by DIVYA PILLAI(HC00199) on Mon Feb 03 2025 Downloaded on : Fri Feb 07 23:57:06 IST 2025 NEUTRAL CITATION C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025 undefined and order and the word 'termination' should read as 'dismissal'.
(b) Mr. Shalin Mehta would further submit by reading paragraph 44 of the judgement that though the court found that the order of termination imposed was highly disproportionate, which was otherwise a maximum punishment, the intention of the court was that the order of dismissal from service which had the effect of disqualifying the delinquent from future employment was the only intention and therefore it was open for the disciplinary authority to pass any other order of punishment which would not entail disqualification from future employment.
(c) Mr. Shalin Mehta, learned Senior Advocate would further submit that reading Rule 6 of the Discipline and Appeal Rules, 1971, the major penalties that were available for the disciplinary authority to impose could be any of the punishments Page 3 of 27 Uploaded by DIVYA PILLAI(HC00199) on Mon Feb 03 2025 Downloaded on : Fri Feb 07 23:57:06 IST 2025 NEUTRAL CITATION C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025 undefined set out in the rule which also included removal from service. He would submit that on reading the summary of charges in the tabulated form held to be proved, as set out in the paragraph no. 37 of the judgement, though the Division Bench of this court had set aside the order of dismissal, and it was only a typographical error of describing the order as one of termination, the High Court on his administrative side needed a clarification of the order, especially when concluding the judgement, the court had termed the order of dismissal as that of termination.
(d) Mr. Mehta would submit that though the review application raised other extensive grounds, he would be satisfied if, the Division Bench of this court, made the necessary correction in the concluding part of the order inasmuch as the word 'termination' should read as that of 'dismissal', and therefore, it was open for the disciplinary authority to impose any other punishment other than dismissal from service which Page 4 of 27 Uploaded by DIVYA PILLAI(HC00199) on Mon Feb 03 2025 Downloaded on : Fri Feb 07 23:57:06 IST 2025 NEUTRAL CITATION C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025 undefined was imposed upon the respondent, original petitioner.
3. Mr Vaibhav Vyas, learned counsel for the respondent - original petitioner submitted that the application for review intends to frustrate the very directions issued by the Division Bench by which, the High Court on its administrative side has been directed to reinstate the original petitioner and impose any other punishment. Once directions were issued to reinstate, the petitioner, it is not open for the High Court on its administrative side to contend that it is open for the disciplinary authority to impose a punishment of removal too. When reinstatement was ordered, obviously, what the judicial order expressed was, the charges against the original petitioner were not serious enough to warrant a penalty which was losing of the job of the judicial officer.
3.1 Mr. Vaibhav Vyas, learned advocate would take us through the relevant paragraphs of the judgement to Page 5 of 27 Uploaded by DIVYA PILLAI(HC00199) on Mon Feb 03 2025 Downloaded on : Fri Feb 07 23:57:06 IST 2025 NEUTRAL CITATION C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025 undefined indicate that once the court had found that the charges framed did not substantiate that it was a misconduct of the nature warranting punishment of dismissal and at best it was negligence, it was not open for the authority to prefer a review, and under that guise seek review of the order and make it as an excuse to impose an order of removal from service, particularly when, the court had clearly come to a conclusion that the charges did not warrant a punishment of the petitioner losing his job.
3.2 Mr. Vyas, learned advocate would further submit that even if the order of dismissal was under challenge, the intention of the Division Bench was to set aside the termination of service, resulting from the order of dismissal, and therefore to substitute the punishment by imposing punishment of removal, frustrated the very cause when the directions issued by this court were of such a nature and intention that the original petitioner should be reinstated in service.
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4. Having considered the submissions made by the learned counsel for the respective parties and being conscious of the fact of the limitations on the scope of reviewing the order, we may consider the case on the limited extent as stated by the learned counsel for the High Court on its administrative side on the issue of the court terming the order of 'dismissal' as that of 'termination' in various paragraphs of the judgement and also in the concluding paragraph, where, instead of the order of dismissal being quashed and set aside, the Division Bench has, in the findings and conclusions suggested that what was quashed and set aside was the order of termination.
4.1 It cannot be disputed before us by the original petitioner that what was under challenge in the petition filed by the original petitioner - respondent herein was an order of dismissal dated 9th August 2016. Reading the rules, especially Rule 6 of the Discipline and Appeal Rules, it is clear that 'termination' is never a punishment Page 7 of 27 Uploaded by DIVYA PILLAI(HC00199) on Mon Feb 03 2025 Downloaded on : Fri Feb 07 23:57:06 IST 2025 NEUTRAL CITATION C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025 undefined which is set out in the rules. Obviously, therefore when the order of dismissal dated 9 th August 2016 was under
challenge, while holding that the order of 'termination' was set aside in the concluding portion of the judgement, especially in paragraph 46, the intention of the court was to hold that the order of 'dismissal' dated 09 th August 2016 is quashed and set aside. In other words, we clarify that wherever the Division Bench has used the term 'order of termination', what actually the intention of the court was to suggest and should be read as 'order of dismissal'.
4.2 Having perused the relevant portions of the Division Bench's judgement, especially paragraphs no. 37 and 38, which are reproduced as under, we find that in no uncertain terms, the Division Bench of this court held the charges as set out in the table as proved. The nature of the charges proved are well explained.
"37. For the reasons assigned by us, while analyzing of the charges proved against the petitioner in disciplinary proceedings, the summary of the charges, Page 8 of 27 Uploaded by DIVYA PILLAI(HC00199) on Mon Feb 03 2025 Downloaded on : Fri Feb 07 23:57:06 IST 2025 NEUTRAL CITATION C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025 undefined which are confirmed and are accepted as proved, are reproduced as under:
Sr. Charges Findings Remark
No s
.
1 Charge No.I- Findings and Proved
conclusions drawn by and
You maintained close the inquiry officer is Confirm
association with advocate based on relevant ed
Mr. Rakesh K. Patel material viz. though
practicing at Sinor Court, hearsay witnesses
who frequently appeared in who are mainly
your court. The detailed lawyers from the bar
facts showing your close and staff members.
associations with Mr. Their evidence to the
Rakesh Patel are mentioned extent of close
in the imputation of association with
charges. You and Mr. advocate Rakessh
Rakesh Patel exploited such Patel has been
close relation and brought on record.
association for the purpose challenge on ground
other than Judicial. of specific finding at
In Civil Suit No. 14/2008 para 25.9 " but it is
which was listed in your not proved that
court, Mr. Subhashchandra keeping the
Jivanlal .Solanki applied for relationship Mr.
adjournment and you from Rakesh Patel has
the dais of the court made obtained all orders in
following utterances in favour of him ", milds
Gujarati "Sala Bhangdao down the gravity of
Mari Jasho And Har the allegations as
Th44Sho". Thereby you regards
failed to maintain the proportionality of
dignity and decorum of the punishment to be
court. imposed.
2 Charge No.II- Though witness no. Proved
After uttering the words as 15 Subhashcndra and
mentioned in Article 1, you Solanki has turned Confirm
recommended to the hostile and in is cross ed
litigant of Civil Suit No. examination, the
14/2008 to engage an defense has
advocate by pointing out a successfully brought
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finger towards three his denial about
advocates sitting in your delinquent having
Court. You pointed out your asked him to pay Rs.
finger in particular to Mr. 500 to advocate
Rakesh K. Patel, who was Rakesh Patel,
sitting in the court and however, the close
recommended Mr. reading of the
Subhashchandra J. Solanki evidence of said
to engage him and to pay a witness suggest that
sum of Rs.500/- to him and there is no challenge
Mr. S. J. Solanki obliged to the fact Advocate
under your compulsion. Rakesh Patel had
prepared an
adjournment
application for said
witness. Such
evidence is sufficient
to raise the
preponderance of
probability about
allegations leveled
against the
delinquent.
3 Charge No.III- The close reading of Proved
Pw no. 5 Mr. and
In the matter of dispute Pravinbhai Confirm
regarding parking of Chaganbhai Patel at ed
vehicle by Mr. Rakesh Patel EXH. 54 suggests
in Sinor Police Station on or that the delinquent around 22nd of July, 2008, had played a role you favoured Mr.Rakesh from inception to Patel and compelled PSI conclusion of strike Mr. M.M. Vasava to offer of the Bar. The apology to Mr.Rakesh Patel stirring incident on behalf of Mr. Bhikhabhai pertains to parking G. Parmar as mentioned in row of vehicle by detail in imputation of advocate rakesh charges and the Patel in police station documentary evidence with PI Mr. M.M. supplied to you. Thereby Vasava. One more you misused your authority incident showing as a Judicial Officer to association of the sustain your relations and delinquent with close association with advocate concern. advocate Mr. Rakesh Patel.
Page 10 of 27 Uploaded by DIVYA PILLAI(HC00199) on Mon Feb 03 2025 Downloaded on : Fri Feb 07 23:57:06 IST 2025 NEUTRAL CITATION C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025 undefined 4 Charge No.X- The Inquiry Officer has relied upon the Confirm Delinquent compelled Mr. evidence of witness ed Vi jaykumar Panchal, an PW no. 33 at EXH. advocate from Dabhoi to 354 Vijayakumar provide refreshments to you {anchal whose and to your staff and you evidence has ordered such refreshments remained unshaken. on behalf of Shri Viyaykumar Panchal and compelled him to pay bills. You also consumed tobacco, pan masala at the cost of Mr. Vijaykumar Panchal. 5 Charge No.XV- Specific statements Miscond about chewing uct You failed to maintain tobacco, pan and Proved dignity and decorum of the gutka by delinquent Court as you were found to have been made by be consuming tobacco, pan most of the witnesses masala and Gutka on the vz. PW no. 2, 3, 4, 6, dais of the Court and then 7, 10, 11, 13, 33, 36, for the purpose of spitting 17, 18, 19, 20, 22, the same out, you used to 24, 25, 27 and 30. retire from the dais and The same has
loitered in the lobby outside remained unshaken.
and used to occupy the Thus, the finding and
chair of Nazir or other staff conclusion of
members. aforesaid charge
being proved is based
on the evidence as
emerged on record.
However, the
petitioner has
referred and relied
upon surprise visits
done by the learned
Principal District
Judges where no
such incident has
been reported. Also,
reliance is placed on
various instances
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whereby the
subordinate staff
have been served
with memos about
their non
performance of court
work duty. The
related documentary
evidence at EXH. 99
to 101, 275, 280 to
285, 292, 448 to 451,
470, 518, 534 are
relied upon. The
evidence of defense
witnesses DW no.
1,2,9,10,11 and 14
are relied upon. The
inquiry officer has
ignored the aforesaid
material [laced for
consideration while
accepting the charge
against the
delinquent.
Ultimately, it cannot
be said that finding is
based on no
evidence, however,
fair consideration has
not been met while
concluding the said
charge being proved.
This gives the
impression of biased
or predetermined
inquiry in violation of
principles of natural
justice.
38. As noticed by us, the charge No. I (Part-I), charge Nos. II, III and VIII are having a common thread of allegations involving the delinquent and close association with advocate Mr. Rakesh Patel. It is discernible from the close Page 12 of 27 Uploaded by DIVYA PILLAI(HC00199) on Mon Feb 03 2025 Downloaded on : Fri Feb 07 23:57:06 IST 2025 NEUTRAL CITATION C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025 undefined scrutiny of the record that the evidence of the most of the witnesses examined as regards aforesaid charge is of 'hearsay' nature. In our opinion, there is a common say of these witnesses that delinquent kept close association with advocate Rakesh Patel. However, there is no clinch of evidence which can be given due weightage as proof of fact that such close association had traversed to the extent of exploiting the relationship for some extraneous considerations. With such nature of evidence on record, we are called upon to examine the validity of the imposition of maximum punishment of termination. So far as the Charge No.X of compelling witness No.33- Vijaykumar B. Panchal, advocate from Dabhoi to provide refreshments to delinquent and his staff and payment of bills as well as consuming of tobacco, pan masala and gutka at his cost are concerned, the Inquiry Officer based on the testimony of the said witness has found sufficient evidence to support the said charge and has thereby held him guilty."
4.3 Even while assessing the case law on the proportionality of punishment viz-a-viz conduct of Judicial officers and the standard that is expected of such judicial officers in paragraphs no. 42 and 43 of the judgement, the Division Bench opined as under:
"42. Even recently, the Supreme Court in the case of Sadhna Chaudhary vs The State Of Uttar Pradesh reported in AIR 2020 SC 2542, reiterated the aforesaid standards of conduct and Page 13 of 27 Uploaded by DIVYA PILLAI(HC00199) on Mon Feb 03 2025 Downloaded on : Fri Feb 07 23:57:06 IST 2025 NEUTRAL CITATION C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025 undefined essential criteria of the behavior of Judicial Officers. The relevant of the same reads as under:
"19. Even furthermore, there are no two ways with the proposition that Judges, like Caesar's wife, must be above suspicion. Judicial officers do discharge a very sensitive and important constitutional role. They not only keep in check excesses of the executive, safeguard citizens' rights and maintain law and order. Instead, they support the very framework of civilised society. It is courts, which uphold the law and ensure its enforcement. They instil trust of the constitutional order in people, and ensure the majesty of law and adherence to its principles. Courts hence prevent people from resorting to their animalistic instincts, and instead provide them with a gentler and more civilised alternative of resolving disputes. In getting people to obey their dicta, Courts do not make use of guns or other (dis)incentives, but instead rely on the strength of their reasoning and a certain trust and respect in the minds of the general populace. Hence, it is necessary that any corruption or deviation from judicial propriety by the guardians of law themselves, be dealt with sternly and swiftly."
20. It has amply been reiterated by this Court that judicial officers must aspire and adhere to a higher standard Page 14 of 27 Uploaded by DIVYA PILLAI(HC00199) on Mon Feb 03 2025 Downloaded on : Fri Feb 07 23:57:06 IST 2025 NEUTRAL CITATION C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025 undefined of honesty, integrity and probity. Very recently in Shrirang Yadavrao Waghmare v. State of Maharashtra, a Division Bench of this Court very succinctly collated these principles and reiterated that:
"5. The first and foremost quality required in a Judge is integrity. The need of integrity in the judiciary is much higher than in other institutions. The judiciary is an institution whose foundations are based on honesty and integrity. It is, therefore, necessary that judicial officers should possess the sterling quality of integrity. This Court in Tarak Singh Vs.Jyoti Basu, (2005) 1 SCC 201 held as follows:
(SCC p. 203) "Integrity is the hallmark of judicial discipline, apart from others. It is high time the judiciary took utmost care to see that the temple of justice does not crack from inside, which will lead to a catastrophe in the justice delivery system resulting in the failure of public confidence in the system. It must be remembered that woodpeckers inside pose a larger threat than the storm outside."
6. The behaviour of a Judge has to be of an exacting standard, both inside and outside the court. This Court in Daya Shankar v. High Court of Allahabad, (1987) 3 SCC 1:1987 SCC (L&S) 132] held thus: (SCC p.1) "Judicial officers cannot have two standards, one in the court and Page 15 of 27 Uploaded by DIVYA PILLAI(HC00199) on Mon Feb 03 2025 Downloaded on : Fri Feb 07 23:57:06 IST 2025 NEUTRAL CITATION C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025 undefined another outside the court. They must have only one standard of rectitude, honesty and integrity. They cannot act even remotely unworthy of the office they occupy."
7. Judges are also public servants. A Judge should always remember that he is there to serve the public. A Judge is judged not only by his quality of judgments but also by the quality and purity of his character. Impeccable integrity should be reflected both in public and personal life of a Judge. One who stands in judgments over others should be incorruptible. That is the high standard which is expected of Judges.
8. Judges must remember that they are not merely employees but hold high public office. In R.C. Chandel v. High Court of M.P. , (2012) 8 SCC 58 this Court held that the standard of conduct expected of a Judge is much higher than that of an ordinary person. The following observations of this Court are relevant: (SCC p. 70, para
29) "29. Judicial service is not an ordinary government service and the Judges are not employees as such. Judges hold the public office; their function is one of the essential functions of the State. In discharge of their functions and duties, the Judges represent the State. The office that a Judge holds is Page 16 of 27 Uploaded by DIVYA PILLAI(HC00199) on Mon Feb 03 2025 Downloaded on : Fri Feb 07 23:57:06 IST 2025 NEUTRAL CITATION C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025 undefined an office of public trust. A Judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the core with high moral values. When a litigant enters the courtroom, he must feel secured that the Judge before whom his matter has come, would deliver justice impartially and uninfluenced by any consideration. The standard of conduct expected of a Judge is much higher than an ordinary man. This is no excuse that since the standards in the society have fallen, the Judges who are drawn from the society cannot be expected to have high standards and ethical firmness required of a Judge. A Judge, like Caesar's wife, must be above suspicion. The credibility of the judicial system is dependent upon the Judges who man it. For a democracy to thrive and the rule of law to survive, justice system and the judicial process have to be strong and every Judge must discharge his judicial functions with integrity, impartiality and intellectual honesty."
9. There can be no manner of doubt that a Judge must decide the case only on the basis of the facts on record and the law applicable to the case. If a Judge decides a case for any extraneous reasons then he is not performing his duty in accordance with law.
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10. In our view the word "gratification" does not only mean monetary gratification. Gratification can be of various types. It can be gratification of money, gratification of power, gratification of lust etc., etc.
21. We are also not oblivious to the fact that mere suspicion cannot constitute 'misconduct'. Any 'probability' of misconduct needs to be supported with oral or documentary material, even though the standard of proof would obviously not be at par with that in a criminal trial. While applying these yardsticks, the High Court is expected to consider the existence of differing standards and approaches amongst different judges. There are innumerable instances of judicial officers who are liberal in granting bail, awarding compensation under MACT or for acquired land, backwages to workmen or mandatory compensation in other cases of tortious liabilities. Such relief oriented judicial approaches cannot by themselves be grounds to cast aspersions on the honesty and integrity of an officer."
43. In view of the aforesaid decisions laying down the standards of conduct expected from the Judicial Officers, we needs to verify as to whether the charge having accepted to be proved of having Page 18 of 27 Uploaded by DIVYA PILLAI(HC00199) on Mon Feb 03 2025 Downloaded on : Fri Feb 07 23:57:06 IST 2025 NEUTRAL CITATION C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025 undefined association with advocate Rakesh Patel, consuming tobacco, pan masala and gutka on dias of the courtroom whether amounts to misconduct in terms of Rule 3 of the Gujarat Civil Service (Conduct) Rules, 1971. At this stage, appropriate would be to revisit the relevant observations of this Court in the case of Bodu Tarmamad vs. Dist. Suptd. Of Police, Jamnagar & Anr. reported in 1988 (1) GLH 406, as regards interpretation of provisions of Rule 3(iii) of the Gujarat Civil Services (Conduct) Rules, 1971:
"12. The aforesaid decision of the Supreme Court has been followed by this Court (Coram : N. H. Bhatt, J.) in the case of Karsanbhai D. Parmar & Others v. State of Gujarat & Others, in Special Civil Application No. 221 of 1983 decided on September 24, 1985, (1986) GLT 87 (G.H.C.). In that case it is observed to the effect that to keep a mistress is not misconduct for a policeman, and whatever is immoral or improper in a given society cannot necessarily be branded as misconduct.
The learned Counsel for the respondents submits that in the aforesaid case before this High Court no advocate of either side appeared.
Moreover, the observations of the Supreme Court in the case of Rasiklal (supra) have been applied out of context. In his submission it would be improper for a Government servant to keep a mistress and such conduct would certainly be unbecoming of a Government servant. Be that as it may.
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13. The word 'unbecoming' is not defined in the Rules in question. Therefore, we have to go by the dictionary meaning of the word. Dictionary meaning of the word 'unbecoming' is 'indecorous, not proper or befitting, not suited to the wearer'. In the context of the Rules it would mean either 'indecorous' or 'not proper or befitting'. However, while considering the conduct of a Government servant it is to be kept in mind that the conduct should be indecorous or improper as a Government servant. The disciplinary authority cannot determine the nature of conduct as indecorous or improper as per his own norms of behaviors and beliefs. Some guidelines are inherent in the Rules, and it is necessary that the same may be kept in mind. They are as follows:
(1) The aforesaid rule occurs in the Page 20 of 27 Uploaded by DIVYA PILLAI(HC00199) on Mon Feb 03 2025 Downloaded on : Fri Feb 07 23:57:06 IST 2025 NEUTRAL CITATION C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025 undefined Gujarat Civil Service (Conduct) Rules, 1971. Therefore the behaviour which is to be branded as misconduct should have nexus with the duties to be performed by the Government servant.
(2) Having regard to the office held by a Government servant he should be required to perform certain duties. If his conduct is such that it interferes or leads or interfere directly or indirectly with the honest discharges of his duty such conduct may be considered as unbecoming of a Government employee.
(3) The behaviour which is being viewed as misconduct may be a matter of personal belief or non-belief of the employee concerned. It may be such to the displeasure of the disciplinary authority concerned, but if the behaviour has no nexus with the duty to be performed by the Government employee, the same cannot be branded as misconduct under the rules.
(4) While considering a particular conduct as unbecoming of a Government servant one must bear in mind the status of Government employee as distinct from other employee and from other citizens. A Government servant must have taken oath under the Constitution or the might have been administered oath of secrecy, fidelity and sincerity while Page 21 of 27 Uploaded by DIVYA PILLAI(HC00199) on Mon Feb 03 2025 Downloaded on : Fri Feb 07 23:57:06 IST 2025 NEUTRAL CITATION C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025 undefined discharging his duty. A Government servant is bound by his oath; if his conduct is contrary to his oath, it may be considered indecorous or unbefitting to a Government servant.
(5) Is the behavior or conduct of the Government servant concerned, runs counter to the aims and objects of the Constitution or is it against the spirit and object of any provision of law which he, as Government servant, is supposed to uphold and implement as a part of his duty ?
(6) In a given case even though a particular behaviour may be a matter of personal life of the employee concerned it may have direct or indirect repercussions on the duty to be performed by the employee as a Government servant. To illustrate, normally it would never to objected to if a Government servant, in leisure hours, visits the business premises of his relatives. But if a District Civil Supplies Officer every day visits and sits for couple of hours at the business premises of his relatives where the essential commodities are being stored and traded, this may be considered objectionable. Other traders may think that he might be passing on some important information in advance, or that he might act with partiality and with bias in the case of this particular trader who happens to be his relative.Page 22 of 27 Uploaded by DIVYA PILLAI(HC00199) on Mon Feb 03 2025 Downloaded on : Fri Feb 07 23:57:06 IST 2025
NEUTRAL CITATION C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025 undefined Something which is quite normal and innocuous for others may not be permissible in his case. In such case, the employee may have to justify his conduct which in absence of good and sufficient explanation may be considered as 'misconduct'. Such instance cannot be enumerated. Each case has to be judged on the basis of its facts and circumstances. Therefore, 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 particular behaviour is misconduct or not.
14. If these factors are not taken into consideration and any conduct which the disciplinary authority or the superior officer considers to be improper or indecorous for a Government employee is treated as misconduct, then the behaviour pattern, even in the personal life of Government employees, would be determined-rather dictated-as per the wishes and whims of the superior Government officers. This would create a society of sycophants. In such Page 23 of 27 Uploaded by DIVYA PILLAI(HC00199) on Mon Feb 03 2025 Downloaded on : Fri Feb 07 23:57:06 IST 2025 NEUTRAL CITATION C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025 undefined society top brass in service would behave as feudal lords and the employees in lower ranks, will have to mould their behaviour pattern so as to please their superior 'lords' (officers). In that case lower ranks in service will not be that of individual citizens having their own separate identity but they will become serfs or slaves. This can never be the intention of the Rules. If this interpretation is placed on the term 'unbecoming of a Government servant' it would simply mean 'behavior which causes displeasure to the superior's. Such absurd meaning cannot be ascribed to this phrase. If it is interpreted in that fashion, the provisions of the Rules would become arbitrary and ultra vires the Constitution. Therefore, the only interpretation which can be placed on the phrase 'unbecoming of a Government servant' would be as indicated hereinabove.
15. In the light of the aforesaid interpretation of the phrase 'unbecoming of a Government servant' what is stated in the report of the Inquiry Officer may be examined. It is evident from the record that the girl was staying in the premises and it was known to the wife of the petitioner. The girl wanted to marry with the petitioner and, therefore, she had left her parental house after informing her mother and brother. The girl was major. Everyone concerned knew that Page 24 of 27 Uploaded by DIVYA PILLAI(HC00199) on Mon Feb 03 2025 Downloaded on : Fri Feb 07 23:57:06 IST 2025 NEUTRAL CITATION C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025 undefined the girl had come to the house of the petitioner voluntarily and the petitioner had not exercised any undue influence over her. It is not the finding in the inquiry report nor was there any such charge that the petitioner exercised undue influence over the girl. From the record of the case it becomes clear that the girl had stayed at the house of the petitioner and was doing household work. The petitioner's wife was pregnant and she had gone to her parents' house. During this period the girl was doing the household work. This is clear from the deposition of Haziraben, wife of the petitioner, who has been examined as a witness in the departmental inquiry held by the department. It was under these circumstances that the girl had stayed with the petitioner in Police line quarter.
16. Even if the aforesaid finding is accepted in its entirety, it can never be said that the petitioner has committed any misconduct 'unbecoming of a Government servant'. There is no finding that aforesaid conduct of the petitioner had any nexus with the duty to be performed by him or that his conduct interfered or even tended to interfere with the honest discharge of his duties. Thus, the disciplinary authority has completely misdirected himself while coming to the conclusion that the petitioner was guilty of misconduct Page 25 of 27 Uploaded by DIVYA PILLAI(HC00199) on Mon Feb 03 2025 Downloaded on : Fri Feb 07 23:57:06 IST 2025 NEUTRAL CITATION C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025 undefined 'unbecoming of a Government servant'. "
4.4 We have therefore after holding the relevant charges as proved, in our discretion only set aside the order of dismissal from service on the ground of proportionality.
Keeping in view that the substitution of an alternative penalty other than that of dismissal is purely within the domain of the disciplinary authority, we have left the decision of imposing a punishment other than a major punishment of dismissal against the delinquent to the High Court on its administrative side as it was not open for us to impose a penalty in substitution of the one of dismissal from service. We, therefore, have left it on the authorities to take an appropriate decision on the imposition of punishment other than the major punishment of dismissal in accordance with rules.
5. We therefore clarify that what we have set aside is an order of penalty of dismissal from service and not of termination and we have left it to the High Court on its administrative side to take an appropriate decision on Page 26 of 27 Uploaded by DIVYA PILLAI(HC00199) on Mon Feb 03 2025 Downloaded on : Fri Feb 07 23:57:06 IST 2025 NEUTRAL CITATION C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025 undefined imposition of punishment, other than a major punishment of dismissal against the delinquent in accordance with rules.
6. With the aforesaid clarification, the review application is partly allowed. Rule is made absolute accordingly with no order as to cost.
FURTHER ORDER:
After the aforesaid judgement was pronounced, Mr. Vaibhav Vyas, learned advocate for the respondent requests for stay of the order. In light of what we have stated in paragraphs no. 5 & 6 of the judgement and order and since we have only clarified our earlier order, the request for stay is not entertained.
(BIREN VAISHNAV, J) (NISHA M. THAKORE,J) DIVYA Page 27 of 27 Uploaded by DIVYA PILLAI(HC00199) on Mon Feb 03 2025 Downloaded on : Fri Feb 07 23:57:06 IST 2025