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2001 DIGILAW 421 (ALL)

PRAVINA SOLANKI v. STATE OF UTTAR PRADESH

2001-05-02

M.KATJU, R.B.MISRA

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M. KATJU, J. ( 1 ) THIS writ petition has been filed against the impugned order dated 2. 8. 1989, Annexure-8 to the petition dismissing the petitioner from service and the appellate order dated" 30. 11. 1989 passed by the D. I. G. , Agra and the revisional order dated 24. 3. 1991 passed by the D. G. P. , U. P. as well as the judgment dated 1. 6. 1995, Annexure-10 to the writ petition passed by the U. P. Public service Tribunal. ( 2 ) WE have heard learned counsel for the parties. The petitioner was a lady constable in the U. P. Police. After due selection in 1982, she was appointed and in 1986 she was posted at Firozabad, district Agra. In para 2 of the petition, it is alleged that her work and conduct was good and she was awarded good entries. In para 3. It is alleged that in 1983 in the Ml India Police Meet, the petitioner was awarded first prize in the dance competition and she won other prizes. ( 3 ) IN para 4, it is alleged that when the petitioner was posted at Firozabad, her younger sister anjali developed some serious medical trouble, hence her mother took a room on rent in Agra and brought Km. Anjali for treatment at Agra and both started living there together. The petitioner often visited them. Various facts have been alleged in the petition but it would not be necessary to go into the same. All that is necessary to mention is that the petitioner has alleged that due to some enmity, the Dy. S. P. the respondent No. 5 raided her residence on 30. 12. 1987 at about 11. 30 p. m. and arrested the petitioner and one Jagdish Saran Joshi, a guest of the petitioners mother in order to defame the petitioner and get her removed from service. They were medically examined and the petitioner was suspended on 2. 1. 1988 by order of the S. S. P. . Agra. The petitioner was charge-sheeted on 31. 10. 1988 vide Annexure-6 to the petition. In this charge-sheet, it is alleged that on the night of 30/31. 12. 1987, the petitioner was found at her residence under influence of liquor and sleeping with Jagdish Saran Joshi in the same bed. Bottles of liquor and some rifle, guns and cartridges were also recovered. The petitioner was charge-sheeted on 31. 10. 1988 vide Annexure-6 to the petition. In this charge-sheet, it is alleged that on the night of 30/31. 12. 1987, the petitioner was found at her residence under influence of liquor and sleeping with Jagdish Saran Joshi in the same bed. Bottles of liquor and some rifle, guns and cartridges were also recovered. On the basis of the said charge-sheet, an inquiry was held against the petitioner. True copy of the Inquiry report dated 28. 2. 1989 is Annexure-7 to the petition. Thereafter vide order dated 2. 8. 1989 the petitioner was dismissed from service. Her appeal before the D. I. G. was also dismissed and the revision before d. G. P. vide Annexure-9 also failed. The petitioner then approached the U. P. Public Services tribunal but her petition was dismissed vide Annexure-10 to the writ petition. Hence this writ petition. ( 4 ) THERE are no allegations against the petitioner that her conduct in any way affected her official functions. There is also no allegation that she was on duty at the relevant time. In our opinion, unless an employee does some act which interferes with his/her official function then ordinarily whatever he/she does in his/her private life cannot be regarded as misconduct. In the case of In re rabindra Nath Ghosh, 1985 (1) SLR 598, this was the view taken by the Calcutta High Court and this was also the view taken by a Division Bench of this Court in State of U. P. v. B. N. Singh, AIR 1989 All 359. The position may have been different if the petitioner was doing the aforesaid acts while on duty, but in the present case, she was at her residence late in the night, and there is no allegation that she was on duty at that time. As held by this Court in the case of state of U. P. v. B. N. Singh (supra), in order to bring a case of a Government servant within the definition of personal immorality on the ground of habit of sex. As held by this Court in the case of state of U. P. v. B. N. Singh (supra), in order to bring a case of a Government servant within the definition of personal immorality on the ground of habit of sex. it must be shown that this habit of the Government servant has reduced his utility as a public servant so as to damage the government or official generally in public esteem, in Sukhdeu Singh v. State of Punjab, 1983 (2)SLR 645, the Punjab High Court held that a constable under influence of alcohol while not on duty cannot be held to be guilty of misconduct. In the present case, the petitioner was not having sex in a public place but at her residence. Hence it cannot be said that she has committed any misconduct for which she can be depart men tally proceeded against. ( 5 ) WE cannot help observing that if the petitioner had been a male employee, perhaps the authorities would have done nothing about it, but since she was a female she has been proceeded against. Thus, this is a case which smacks of sexual discrimination. ( 6 ) IN view of the above, the writ petition is allowed. The impugned orders are quashed. The petitioner shall be reinstated in service within a month of production of certified copy of this order before the S. S. P. . Agra. She will also get all back wages and other benefits treating her service not to have been terminated, with 12% interest from the date of termination to the date of reinstatement, and these will be paid to her within 2 months. She will also get continuity of service, increment, etc. .