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
undefined
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
==========================================================
Approved for Reporting Yes No
==========================================================
HIGH COURT OF GUJARAT
Versus
KAMLESHKUMAR KEWALRAM ALWANI & ANR.
==========================================================
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
==========================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)
NEUTRAL CITATION
C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025
undefined
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
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
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
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
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.
NEUTRAL CITATION
C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025
undefined
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
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,
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
.
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.
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
NEUTRAL CITATION
C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025
undefined
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.
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.
NEUTRAL CITATION
C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025
undefined
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.
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
NEUTRAL CITATION
C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025
undefined
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
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
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
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
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
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.
NEUTRAL CITATION
C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025
undefined
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
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.
NEUTRAL CITATION
C/MCA/2172/2024 CAV JUDGMENT DATED: 31/01/2025
undefined
That is not these case before me.
Therefore, even if the correctness of
the aforesaid decision of this High
Court is doubted, the principle laid
down by the Supreme Court in
Rasiklal's case (supra) are required to
be followed and applied. Therefore,
even if both the counts of charge
against the petitioner are admitted or
are held proved, it can never be said
that the same constitutes misconduct
'unbecoming of a Government
servant.'
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
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
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.
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
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
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
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
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
