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2004 DIGILAW 767 (JHR)

MUMTAZ AHMAD v. STATE OF BIHAR

2004-08-02

TAPEN SEN

body2004
Judgment : TAPEN SEN, J. ( 1 ) HEARD Mr. M. S. Anwar, learned Senior Counsel for petitioner and Mr. Pradip Modi, learned G. P. I, for the State-respondents. ( 2 ) THE petitioner in this case has challenged the order of dismissal from service passed on 28. 10. 1992 as contained in Annexure-10 by reason whereof he was dismissed with effect from 1. 12. 1992. The petitioner also challenges the order of the Appellate Authority passed on 27. 6. 1993 as contained in Annexure-11 by reason whereof the appeal filed by the petitioner against the aforementioned order dated 28. 10. 1992 was rejected. ( 3 ) THE facts, which are necessary to be taken note of in the instant case are that while he was in service having been employed as Constable in Ranchi, a departmental proceeding was initiated upon service of a charge-sheet (Annexure-1), whereby and whereunder the following charges were levelled against him : (i) On 13. 9. 1990 the petitioner was supposed to have escorted a V. I. P. from the ranchi Railway Station, but he absented himself as a result of which some body else had to be deputed in his place; (ii) On 14. 9. 1990 the petitioner came to the office in the morning and when he was asked as to why he had not attended to his duties, he gave a very rude reply; (iii) Upon an inquiry it was found out that the main reason as to why the petitioner did not attend his duties was on account of his having an affair with one Arti Anita Toppo who was also a lady constable and that his own wife Smt. Naseema Praveen had also complained about his behaviour towards her and had referred to the illicit relationship of the petitioner along with the said Anita Toppo. A true copy of the aforementioned charge-sheet is Annexure-1 to the writ petition. ( 4 ) IT is not necessary for this Court to deal with the other factual aspects in relation to the progress of the departmental proceeding save and except to observe that it appears from the pleadings made in Paragraph 6 of the writ petition that Anita Toppo had embraced Islam voluntarily and the petitioner had married her on 15. 6. 1990 i. e. , two years prior to the initiation of the departmental proceeding. 6. 1990 i. e. , two years prior to the initiation of the departmental proceeding. The petitioner relies upon Annexure-3 series in relation to his claim that he was married to Anita Toppo. ( 5 ) THE petitioner was placed under suspension on 30. 4. 1991 for the aforementioned charges but was released from suspension on 18. 5. 1992 vide Annexure-4. Thereafter it appears that a detailed inquiry was conducted and the petitioner was found guilty of the charges. ( 6 ) THE petitioner has filed a Supplementary Affidavit on 1. 7. 2004 in which he has stated that his first wife had no objection to the marriage and that he has no child out of the first marriage, but he has two daughters and one son from his second marriage. ( 7 ) IN support of the aforementioned contention that from his first wife, the petitioner did not have any objection, the petitioner has brought on record an affidavit sworn by the first wife Annexure-14, which is dated 18. 11. 1991. The petitioner has also stated that his first wife also remarried after the petitioner and she were separated by divorce on 14. 1. 1996 and in support of the aforementioned contention, the petitioner relies on Annexure-13. ( 8 ) THESE are all subsequent developments which have taken place after initiation of the departmental proceeding. It is also clear from these documents that at the time when the departmental proceeding was initiated, the petitioner was already married and the divorce, according to the petitioner himself and as is evident from his own document brought on record vide Annexure-13 took place on 14. 1. 1996. To that extent, therefore, it cannot be said that the petitioner was totally innocent. ( 9 ) TAKING into consideration the aforementioned facts, this Court is of the opinion that the initiation of the proceeding as against the petitioner on the basis of misconducts committed by him cannot be said to be either irregular or illegal. However, what does not appear to be justified to this Court, is the quantum of punishment. The petitioners affair with another lady constable is a very personal matter and sometimes such conducts are guided more by the heart than by the head. However, what does not appear to be justified to this Court, is the quantum of punishment. The petitioners affair with another lady constable is a very personal matter and sometimes such conducts are guided more by the heart than by the head. If two such individuals, one of whom is a married person, falls in love with another and gets married, it is undoubtedly a misconduct as per service rules. It is for the prevention of such offences that the State has framed rules to regulate its employees so that such acts do not become a problem for the Society or do not become a social evil. However, in the facts of the instant case the misconduct is not so gross that it calls for the extreme punishment and/or penalty of either dismissal or removal from service. From the facts pleaded, it is found that ultimately the lady constable with whom the petitioner was said to have an illicit relationship got married to the petitioner, whereafter children were born out of this wedlock. Taking these facts into consideration, this Court feels that the punishment of dismissal is extremely harsh and disproportionate. ( 10 ) FOR the aforementioned reasons, this Court allows the writ application and sets aside the impugned order of punishment dated 28. 10. 1992 as contained in Annexure-10 as also the appellate order dated 27. 6. 1993 refusing to interfere. However, setting aside the orders does not mean that the petitioner is being given a completely clean chit. He definitely committed a mistake and/or misconduct and for which he has to be punished, but the punishment should not, in the facts of the case, be in the nature of removing him or dismissing him from service. Consequently, this Court remands the matter to the concerned disciplinary Authority only for purposes of reconsidering the matter in relation to the quantum of punishment. This Court, however, makes it clear that this order shall not prevent the authorities from entering the misconduct in the service records of the petitioner. The writ petition is, therefore, allowed in the manner indicated above. There shall, however, be no order as to costs. Petition allowed. --- *** --- .