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2003 DIGILAW 183 (KER)

Vijayan v. High Court of Kerala

2003-03-07

KURIAN JOSEPH

body2003
Judgment :- 1. "Reputation is what men and women think of us: Character is what God and Angels know of us" is the observation of Thomas Paine. A Government servant is bound to maintain absolute integrity at all times. Does it extend to his private life? If so, to what extent and how does it affect the reputation of his Master - the Government? What should be the charge in such circumstances? Should the charge be only in respect of the prescribed misconduct? Does it make any difference in the matter of punishment if the proceedings are initiated at a time when an employee is a probationer? These are some of the interesting questions arising for consideration in this Original Petition. 2. The issue relates to disciplinary proceedings taken against the petitioner culminating in termination. The petitioner while undergoing probation in the post of L.D. Clerk and working at Sub Court, Thodupuzha was issued Ext. P1 memo of charges. The sole charge reads as follows: "That you, Sri. A.K. Vijayan, while holding the post of L.D. Clerk, Munsiffs Court, Thodupuzha on 11.5.1992, had abducted Smt. Mary, wife of Sri. Unni while Sri. Unni was not in the house and that in August 1992 attempted to abduct Kumari Money the eldest daughter of Sri. Unni with the assistance of M/s. Gopalan @ Sunni and Binu S/o. Johnson friends of yourself and thereby committed moral turpitude of such nature as to bear a conduct unbecoming of a responsible Government servant." 3. Proceedings leading to Ext. P1 was instituted based on the complaint of one Sri. Unni, who is the husband of Smt. Mary who was alleged to have been abducted by the petitioner. The complaint is dated 1.9.1992 addressed to the Chief Justice of the High Court of Kerala. The statement of allegations based on which the charge was framed refers to a few facts. Since the textual version is relevant and required for reference in latter part of this judgment, the same is extracted as such: " 1. While the complainant Sri. Unni and his children were not in their house, on 11.5.1992. Sri. A.K. Vijayan abducted the wife of the complainant. The complainant has 5 children. Out of them four are girls and the youngest one is a boy. Kumari Monsy the eldest daughter of the complainant is aged 20. During the month of August. 1992, Sri. While the complainant Sri. Unni and his children were not in their house, on 11.5.1992. Sri. A.K. Vijayan abducted the wife of the complainant. The complainant has 5 children. Out of them four are girls and the youngest one is a boy. Kumari Monsy the eldest daughter of the complainant is aged 20. During the month of August. 1992, Sri. A.K. Vijayan and his friends made attempts to abduct the said elder daughter of the complainant. The complainant is not in a position to live freely for fear of the actions of Sri. A.K. Vijayan and his friends. 2. The statements of witnesses PWs.1 to 3 disclose that the delinquent Officer Sri. A.K. Vijayan had certain illicit connection with the wife of the complainant. 3. The findings of the enquiry officer that the statement of witness certainly would disclose that the conduct of the delinquent is not befitting to a responsible Government Servant." 4. It is to be to noted that the second respondent had conducted a preliminary enquiry through Sri. Cherian K. Kuriakose. Munsiff, Thodupuzha and that is what is referred to in the statement of allegations. In that preliminary enquiry leading to report dated 16.12.1992, the Munsiff had recorded the statement of Unni and his two daughters. On receipt of Ext. P1, the petitioner filed a detailed explanation denying the charge. Thereafter, formal enquiry was conducted by Sri. Thomas P. Joseph, the then Additional District Judge, Thodupuzha. Ext. P2 is the enquiry reported dated 14.5.1993. 5. At Para.9 of the enquiry report, the Enquiry Officer clearly recorded his finding that the charge against the petitioner is not proved. To quote "On going through the evidence of the witnesses already discussed above, there is not sufficient evidence to conclude that the wife of the complainant was "abducted" by the delinquent or that he attempted to "abduct" the complainant's daughter, in the strict legal sense of that word. There is no evidence in this case to show that the complainant's wife is presently staying with the delinquent. The evidence given by witness No. 2 is also insufficient to hold that the delinquent had attempted to abduct her, as alleged." The Enquiry Officer did not stop there. According to him, there was evidence regarding illicit relationship of the petitioner with Smt. Mary. The evidence given by witness No. 2 is also insufficient to hold that the delinquent had attempted to abduct her, as alleged." The Enquiry Officer did not stop there. According to him, there was evidence regarding illicit relationship of the petitioner with Smt. Mary. Therefore, it was reported that "But, there is strong, acceptable and uncontroverted evidence given by the complainant and his witnesses which conclusively show that the delinquent had strong intimacy with the wife of the complainant which in the circumstances proved can only be described as illicit." It was further reported that "the illicit intimacy which the delinquent had with the wife of the complainant and which ultimately resulted in her leaving the company of her husband shows the lack of integrity on the part of the delinquent. The conduct of the delinquent is contrary to modesty and good morals and which is unbecoming of a Government servant. The delinquent, in his dealings with the lady, had not kept up the integrity and standard expected for a Government servant. The complainant has been able to establish that the conduct of the delinquent towards Mary, the wife of the complainant, was not befitting a Government servant and that by his conduct he committed moral turpitude of such nature as to bear a conduct unbecoming of a Government servant. The charge, to that extent, stands proved." 6. Based on the report, Ext. P3 show cause notice was issued to the petitioner. It is interesting to note from Ext. P3 that the notice does not make any reference at all regarding the charge in Ext. P1 memo of charges. It will be profitable to extract the relevant portion of the show cause notice as such: Proved charges Proposed penalties to be imposed The charge was abduction of Smt. Mary, wife of Unni and attempted abduction of Monsy, daughter of Mary and Unni, the former on 11.5.1992 and the latter in August, 1992 depicting a conduct unbecoming of a Government servant. The said charge was not established and proved. Yet a show cause notice was issued on different charges. It is pertinent in this context to note that regarding the charge in Ext. P1 memo of charges, the second respondent disciplinary authority entered a finding as follows: "I concur with the findings entered by the enquiry authority. I find Sri. A.K. Vijayan not guilty of the charge". The petitioner submitted Ext. It is pertinent in this context to note that regarding the charge in Ext. P1 memo of charges, the second respondent disciplinary authority entered a finding as follows: "I concur with the findings entered by the enquiry authority. I find Sri. A.K. Vijayan not guilty of the charge". The petitioner submitted Ext. P4 reply. It was submitted in Ext. P4 that the complainant Sri. Unni was wreaking vengeance on him owing to difference of opinion in the political party, there were dispute in Unni's family leading to Smt. Mary filing a Divorce O.P. No. 92/1992 against Sri. Unni and the attempt was to create a defence incriminating the petitioner in the issue etc. It was also submitted that the enquiry conducted without permitting the petitioner to engage a lawyer was improper. Still further, it was also submitted that the charge having not been proved, it was unnecessary to go into other issues on which there was no charge. To quote from Ext. P4, "In the enquiry report the enquiry officer has held that the evidence is not sufficient to hold that the delinquent had abducted Mary. All the matters regarding illicit relation is a matter to be brought in evidence by the examination of the parties concerned and not the complainant. Therefore there is absolutely no evidence to prove the charges." 7. However, the disciplinary authority issued Ext. P5 proceedings dated 7.7.1993 wherein reference was also made to the preliminary enquiry conducted by the Munsiff. It was found in the order that "the acts proved against the delinquent disclose a conduct not befitting a responsible Government servant, the grave moral turpitude exhibited by the delinquent is a misconduct which is unbecoming of the service of the Judicial Department." Therefore, imposing a punishment of removal from the service referred to in R.11(vii) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, hereinafter referred to as 'the CCA Rules' the petitioner was removed from service with effect from 28.7.1993. 8. The petitioner filed Ext. P6 appeal before the first respondent appellate authority. Apart from the grounds already taken in Ext. P4 reply as referred to above, it was also contended that "the charge levelled against the appeal petitioner is purely personal conduct and is completely unrelated to his official duty and it cannot be termed strictly as misconduct". As per Ext. P6 appeal before the first respondent appellate authority. Apart from the grounds already taken in Ext. P4 reply as referred to above, it was also contended that "the charge levelled against the appeal petitioner is purely personal conduct and is completely unrelated to his official duty and it cannot be termed strictly as misconduct". As per Ext. P7 proceedings dated 29.7.1994, the appellate authority concurred with the views taken by the disciplinary authority and refused to go into the merits of the case. However, noticing that the petitioner was only a probationer it was observed that he is unfit to continue in service and therefore, the appellate authority modified the punishment by terminating his probation and discharging from service under R.19(ii) of the Kerala State and Subordinate Service Rules, hereinafter referred to as 'the General Rules', with effect from 28.7.1993. Petitioner challenges the impugned actions in Exts. P1, P2, P3, P5 and P7. 9. R.3 of the Government Servants' Conduct Rules, 1960, hereinafter referred to as 'the Conduct Rules' provides that "every Government servant shall at all times maintain absolute integrity and devotion to duty". In the instant case, the charge relates only to lack of integrity. It is significant to note that the Conduct Rules gives the caption 'general' to R.3. Rest of the rules deals with specific instances of misconduct including R.93 dealing with bigamous marriages, R.93B dealing with consumption of intoxicating drinks and drugs and 93C dealing with taking or giving of dowry etc. R.11 of the CCA Rules prescribes that various penalties including reduction of pension, compulsory retirement, removal, dismissal etc. can be imposed on a Government servant "for good and sufficient reasons." The good and sufficient reasons confine only to the misconducts prescribed under the Conduct Rules? In other words, can a Government servant be proceeded against for lack of integrity and lack of devotion to duty in respect of instances which are not specifically referred to in the Conduct Rules? In the process of such an action, can a Government servant be proceeded against in respect of lack of integrity in private life unconnected with his official duties? 10. The Supreme Court has considered some of these aspects and it will be profitable to refer to a few decisions for guidance. A.L. Kalra v. The Project and Equipment Corporation of India Ltd. (AIR 1984 SC 1361) is a celebrated decision in this regard. Sri. 10. The Supreme Court has considered some of these aspects and it will be profitable to refer to a few decisions for guidance. A.L. Kalra v. The Project and Equipment Corporation of India Ltd. (AIR 1984 SC 1361) is a celebrated decision in this regard. Sri. Kalra while functioning as Deputy Finance Manager in the Corporation was charged of not refunding the advance taken for house building, within the time stipulated under the rules. There was also a charge of not returning within the stipulated time the advance taken for purchasing Motor Cycle. This, according to the Corporation amounted to failure to maintain absolute integrity and consequently he was removed from service. It is also to be noted that in that case Sri. Kalra was exposed to'double jeopardy' for the same misconduct (1) withholding of salary and, (2) removal from service. The relevant Conduct Rules proved that an employee should at all times maintain absolute integrity. The Hon'ble Supreme Court held that "Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct". It may be seen that the rules granting advances in that case provided also for the consequences of breach of conditions and therefore, the Supreme Court held that there was no ground for initiating the disciplinary action, as it was not prescribed that the breach of the rules would constitute misconduct. The Apex Court observed that the general rule regarding maintenance of absolute integrity only "specifies a norm of behaviour but does not specify that its violation will constitute misconduct". Unlike the statutory situation in that case, the CCA Rules in this State provides for imposition of prescribed penalties for good and sufficient reasons. Therefore, if good and sufficient reasons are established showing lack of integrity on the part of a Government servant, he can be proceeded against inspite of the fact that such instances of lack of integrity are not prescribed specifically as misconduct under the Conduct Rules. Only if the disciplinary authority misdirects itself varying with the prescribed misconduct or entertains what is not contemplated under the Conduct Rules, it becomes arbitrary and unreasonable. Only if the disciplinary authority misdirects itself varying with the prescribed misconduct or entertains what is not contemplated under the Conduct Rules, it becomes arbitrary and unreasonable. That is the guidance of the Apex Court in Glaxo Laboratories (L) Ltd. Presiding Officer, Labour Court, Meerut (AIR 1984 SC 505) "everything which is required to be prescribed has to be prescribed with precision and no argument can be entertained that something not prescribed can yet to be taken into account as varying what is prescribed.". It is difficult to enumerate all instances of lack of integrity or lack of devotion to duty and therefore, a Government servant can be proceeded against on specific allegations of lack of integrity and lack of devotion to duty even if they are not prescribed as misconduct. 11. Integrity is uprightness, honesty or purity. "If a public officer is required to maintain integrity and to be devoted to duty, he is merely asked to keep within the bounds of that Administrative decency, which goes by the name of civilized administration. (Sripati Ranjan Biswas v. Collector of Customs and Ors., AIR 1964 Cal. 415). Does this uprightness, honesty and purity extend to One's private life? There is a beautiful discussion on this in an Allahabad decision. To quote, Bhavan, J. in Laxmi Narain Pande v. District Magistrate and Anr, (AIR 1960 All. 55) "It is not correct to contend that a Government servant is not answerable to Government for misconduct committed in his private life. Assuming the contention to be correct, the result will be that, however reprehensible or abominable a Government servant's conduct in his private life may be, the Government will be powerless to dispense with his services, unless and until he commits a criminal offence or commits an act which is specifically prohibited by the - Conduct Rules. This would clothe Government servants with an immunity which would place the Government in a position worse than that of an ordinary employer. The power of the State to dispense with the services of any Government servant, though hedged with safeguards contained in Art.311 and other provisions of the Constitution, is real. The limitation imposed by Art.311 on the powers of the State is procedural rather than substantive. The power of the State to dispense with the services of any Government servant, though hedged with safeguards contained in Art.311 and other provisions of the Constitution, is real. The limitation imposed by Art.311 on the powers of the State is procedural rather than substantive. It is clear that Art.311 does not restrict the power of the State to dispense with the services of any Government servant for conduct which it considers to be unworthy or unbecoming of an official of the State, nor does it fetter the discretion of the State as to what type of conduct it shall consider sufficiently blameworthy to merit dismissal or removal. The State has been invested with absolute discretion in this respect. It can demand a certain standard of conduct from Government servants not only when performing their official duties but in their private lives as well.". A Division Bench of this Court in Natarajan v. Divisional Superintendent, S. Railway (1976 (1) SLR 669) has endorsed and followed this view. 12. The Supreme Court in S. Govinda Menon v. Union of India and Ann (AIR 1967 SC 1274) considered this issue. It is held as follows: "It is not necessary that a member of the Service should have committed the alleged act or omission in the course of discharge of his duties as a servant of the Government in order that it may form the subject-matter of disciplinary proceedings. In other words, if the act or omission is such as to reflect on the reputation of the officer for his integrity or good faith or devotion to duty, there is no reason why disciplinary proceedings should not be taken against him for that act or omission even though the act or omission relates to an activity in regard to which there is no actual master and servant relationship. To put it differently, the test is not whether the act or omission was committed by the member of the service in the course of the discharge of his duties as servant of the Government. The test is whether the act or omission has some reasonable connection with the nature and condition of his service or whether the act or omission has cast any reflection upon the reputation of the member of the Service for integrity or devotion to duty as a public servant," 13. The test is whether the act or omission has some reasonable connection with the nature and condition of his service or whether the act or omission has cast any reflection upon the reputation of the member of the Service for integrity or devotion to duty as a public servant," 13. Yet another angle on the question of integrity is as to how the conduct emanating from lack of integrity would affect the reputation of the master. In such circumstances also, the master would be justified in intimating disciplinary action. The issue is beautifully summarised in Pearce v. Foster and Ors. (17 QBDN 536). That was a case where the plaintiff was employed as clerk by the defendants for a term of ten years. Before the expiration of that period, the defendants discovered that the plaintiff had for many years previously engaged in speculating in "differences" upon the stock exchange. Court of Appeal confirmed the dismissal. To quote Lord Lindley "I do not say that he yielded to temptation, to which, in that different position, he was naturally exposed; but I do say this, that he ought not to have put himself in that position. Further than that, it appears to me to be perfectly obvious, that if this kind of conduct had been known to the persons who were accustomed to deal with this firm, that very knowledge would damage the firm. It is not necessary for them to prove that they have in fact suffered by reason of his conduct. Such proof is not adduced; for his conduct was not known either to his employers or to their customers. But the defendants would suffer or might suffer very seriously indeed, if they kept the plaintiff in their employ knowing that he was a gambler." In the words of Lord Lopes "If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service or the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant." 14. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant." 14. Referring to the observation in A.L. Kalra's case (supra) that "Failure to keep to high standard of moral, ethical or decorous behaviour befitting an officer of the company by itself cannot constitute misconduct unless the specific conduct falls in any of the misconduct, specifically enumerated in the conducted and discipline rules, the Supreme Court in Secretary to Government & Ors, v. A.C. Britto UT 1996 (11) SC 525) observed that the same was confined only to the facts of that case particularly in the backdrop of the relevant Conduct Rules. It was held at Para.7 as follows: "This Court in that case has not laid down as a general principle that if an act is not specified by rules to be a misconduct then it cannot be regarded as such and an employee cannot be punished for committing such an act." Therefore, it was held that if there was good and sufficient reason, an act of delinquency inspite of being not specified in the rules, can be proceeded against as an act of misconduct. Two specific reasons referred to in the decisions were (1) disregard to an order to eat food by a member of the Armed Forces and (2) disobedience to a legitimate order of the superior to appear before the Medical Board in the case of a member of the police force. Both were termed as indirect expressions of remostrance and resentment leading to acts of indiscipline amounting to good and sufficient reasons, inspite of being not prescribed as misconduct. Therefore, it has not be held that a Government servant is liable to be proceeded against for acts or omissions showing lack of integrity even if they are not specified as such in the Conduct Rules. 15. R.93B of the Conduct Rules refers to misconduct in the matter of consumption of intoxicating drinks and requires the Government servant to refrain from consuming any intoxicating drink or drug in public place and requires him not to appear in a public place in a state of intoxication. 15. R.93B of the Conduct Rules refers to misconduct in the matter of consumption of intoxicating drinks and requires the Government servant to refrain from consuming any intoxicating drink or drug in public place and requires him not to appear in a public place in a state of intoxication. There is also a statutory description in R.93B(e) "not to use any intoxicating drink or drug to excess". Obviously these aspects relate to one's private life. It is not necessary that such acts and omissions be related to his official duties or should be in the discharge of the same. Such conduct in private life is also to be visited with disciplinary action, should they reflect upon the integrity of the employee and reputation of his master, namely, the Government. 16. Coming to the facts of the instant case, the question is whether the petitioner has been duly found to be lacking integrity. It has to be seen that he was issued Ext.P1 memo of charges containing only one charge, that is, abduction of Mary, wife of Unni and attempted abduction of Monsy, daughter of Unni "and thereby committed moral turpitude of such nature as to bear a conduct unbecoming of a responsible Government servant". The Enquiry Officer in unmistakable terms reports that the said charge has not been proved. The statement of allegations is the basis for framing the charge. Those allegations are not charges. It is certainly open to the disciplinary authority to frame additional charges even during the pendency of a formal enquiry into another set of charges. But in the instant case, the petitioner was called upon to answer only one charge. That charge framed against the petitioner having found to be not proved, there is no justification in proceeding further in the matter. If the disciplinary authority had a case of any other instance of misconduct, the petitioner should have been proceeded against separately. By framing one charge and having found that the said charge having not been established, there is no justification at all in proceeding against the delinquent on the basis that certain other misconducts have been established or proved. It is not in dispute that the petitioner was not called upon to answer a charge of the misconduct based on which action has now been taken. It is not in dispute that the petitioner was not called upon to answer a charge of the misconduct based on which action has now been taken. If only there was a charge and enquiry into such charge, the petitioner could have defended his conduct and taken steps to answer the charge. Thus, it is a case of the disciplinary authority acting on no evidence. The Court is not a Court of morals. It is a Court of law. Therefore having found that the action taken against the petitioner is on no evidence and thus illegal, the same is only to be quashed. 17. It will not also be altogether out of context to note that the complaint of Sri. Unni is dated 1.9.1992 alleging abduction of his wife by the petitioner on 11.5.1992 and attempted abduction by the petitioner of his daughter during August. 1992 even without mentioning any date. In fact Sri. Unni had made it clear in the petition that he was not interested in getting back his wife. It is also seen from the files that in the preliminary enquiry, the Munsiff had found that the allegations contained in the complaint of Sri. Unni had not been proved with certainly. According to him also, there is nothing in evidence to show that the delinquent has abducted the wife of the complainant. It was also reported therein that there was no evidence for establishing a charge of attempted abduction of the complainant's daughter. According to the said officer, "....no prima facie case has been made out against the delinquent officer in respect of the misconduct specifically alleged in the complaint". That officer also reported that"the statement of witnesses would certainly disclose that the conduct of the delinquent was not befitting to a responsible Government servant." Inspite of such report of preliminary enquiry dated 16.12.1992, Ext. P1 memo of charge dated 11.2.1993 framed against the petitioner contained only the charge of abduction of Mary, wife of Unni and attempted abduction of Monsy, daughter of Unni. According to both preliminary enquiry and formal enquiry reports, that charge has not been proved and therefore, there is no justification in proceeding against the petitioner on the basis of the charge which is not proved. The disciplinary authority ought to have noticed that the petitioner was only a probationer. According to both preliminary enquiry and formal enquiry reports, that charge has not been proved and therefore, there is no justification in proceeding against the petitioner on the basis of the charge which is not proved. The disciplinary authority ought to have noticed that the petitioner was only a probationer. As far as a probationer is concerned, appointing authority, the employer is obliged to consider whether he is fit to be a full member of the service and whether it is possible to mend his ways even by extending probation and if not only steps should have been taken to end his service. 18. Though the disciplinary authority imposed a punishment of removal from service, the appellate authority found that the petitioner was only a probationer at the relevant time and hence the punishment was modified as termination of probation and discharge from service under R.19(ii) of the General Rules. The whole basis of action against the petitioner having fallen to ground, I set aside the impugned proceedings and direct the second respondent to reinstate the petitioner in service forthwith. His suitability for full membership in service shall be considered in accordance with the provisions of the General Rules. Since the petitioner has not worked after 28.7.1993, 'he will not be entitled for salary and allowances till he joins duty. The period shall be treated as leave without allowance. The Original Petition is allowed as above.