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2019 DIGILAW 1246 (ALL)

Neeraj Dhama v. State of U. P.

2019-05-08

ASHWANI KUMAR MISHRA

body2019
ORDER : Ashwani Kumar Mishra, J. 1. Petitioner was selected for appointment to the post of Sub-Inspector in U.P. Police and he underwent training between December, 2005 to December, 2006. He was ultimately appointed as such on 11th September, 2007. After his selection and before his appointment, petitioner's marriage got solemnized with one Smt. Arti on 24th January, 2007. The matrimonial life faced troubles from the very beginning of the marriage itself, which led to petitioner initiating proceedings under Section 13 of the Hindu Marriage Act for dissolution of marriage on 14th October, 2008. Proceedings remained pending before the appropriate court and notices etc. were issued. It is thereafter that a complaint was made by the wife of the petitioner on 18th February, 2009, as per which, the petitioner was having an illicit relation with another lady sub-inspector. The complaint was entertained and a preliminary enquiry was ordered. Such report of preliminary enquiry was submitted by Deputy Superintendent of Police, which is on record of the writ petition. 2. It appears that in the preliminary enquiry certain allegations with regard to demand of dowry etc. also surfaced. The authority conducting the preliminary enquiry found substance in the allegation of demand of dowry to the extent of Rs. 10 Lacs along with expensive car, as also frequent conversations between petitioner on his mobile number with the other lady sub-inspector with whom he was allegedly having an affair. Based upon this preliminary enquiry report a charge sheet was served upon the petitioner on 7th October, 2009. The charge sheet is Annexure 3 to the writ petition. 10 Lacs along with expensive car, as also frequent conversations between petitioner on his mobile number with the other lady sub-inspector with whom he was allegedly having an affair. Based upon this preliminary enquiry report a charge sheet was served upon the petitioner on 7th October, 2009. The charge sheet is Annexure 3 to the writ petition. The charges levelled against the petitioner reads as under:- ^^o"kZ 2007 esa vkidh 'kknh Jherh vkjrh iq=h Jh rkjk flag rksej fuoklh pUnzyksd dkyksuh fdjriqj jksM] fctukSj ds lkFk fgUnq jhfr fjokt ds lkFk gqbZ Fkh] ftlesa Jherh vkjrh ds firk }kjk ekax ds vuqlkj ngst fn;k x;k FkkA 'kknh r;@,Uxstes.V gksus ds mijkar vkius ih0Vh0lh0 esa Vsªfuax dh o blh nkSjku vkids m0fu0lU/;k oekZ ls voS/k lEcU/k gks x;sA vki vius llqj }kjk ngst dh ekax iwjh u gksus o m0fu0lU/;k oekZ ls voS/k lEcU/k gksus ds dkj.k viuh iRuh dks vius lkFk ugha j[kuk pkgrs gSA vkidk ;g d`R; m0Á0jktdh; deZpkjh vkpj.k fu;ekoyh&1956 esa fufgr fu;eksa ds fo:) gSA mDr ekeys esa iqfyl mi egkfujh{kd] cjsyh ds i=akd %,lVh@,l,lih&lh&33¼Mhth½@2009 fnukafdr 21 Qjojh 2009 ds vuqikyu esa Jh Ácy Árki flag] rRdkyhu iqfyl v/kh{kd uxj cjsyh }kjk tkap dh x;hA tkap esa vkidks mDr vkjksiksa dk nks"kh ik;k x;kA^^ 3. The charge sheet also specified the witnesses, whose statements were likely to be relied upon for proving the charges levelled against the petitioner. The documentary evidence which was to be relied upon, included mobile call details, evidencing frequent talks between petitioner and the other lady sub-inspector as well as a letter of the then Superintendent of Police, dated 23rd June, 2009. Charges levelled in the charge sheet were denied by the petitioner. The proceedings of enquiry were also challenged before this Court by filing Writ Petition No. 58819 of 2009 by contending that the allegations levelled in the charge sheet do not make out a case of misconduct. The challenge to the charge sheet was entertained and proceedings pursuant to charge sheet were stayed. The writ petition, however, was dismissed ultimately on 24th May, 2011. The enquiry, accordingly, progressed in the matter. It would be worth noticing that in the interregnum period a first information report was also lodged against the petitioner on 17th October, 2009 with regard to demand of dowry by the petitioner. The report was registered under Section 498-A/323-IPC read with Section 3/4 of Dowry Prohibition Act. The enquiry, accordingly, progressed in the matter. It would be worth noticing that in the interregnum period a first information report was also lodged against the petitioner on 17th October, 2009 with regard to demand of dowry by the petitioner. The report was registered under Section 498-A/323-IPC read with Section 3/4 of Dowry Prohibition Act. It is admitted that the proceedings of criminal case are pending after a charge sheet has been filed against the petitioner. Records further reveal that notwithstanding the disposal of the writ petition by this Court, the disciplinary proceedings were not immediately continued on account of opinion expressed by a Superintendent of Police, dated 19th March, 2012, which noticed that once on same set of charges criminal proceedings are pending, it would not be prudent for the department to proceed departmentally against the petitioner. 4. It seems that a complaint was made by the wife to the higher authorities and ultimately the Senior Superintendent of Police, Bareilly, intervened in the matter on 8th May, 2013 by directing the disciplinary action to be concluded. The enquiry proceedings were assigned to Superintendent of Police (Crimes) for its expeditious disposal. The enquiry progressed and witnesses in support of charges were adduced. Petitioner was also given opportunity to cross-examine the witnesses. Ultimately, the disciplinary enquiry proceedings were concluded with submission of enquiry report by the Enquiry Officer concerned on 18th June, 2014. This enquiry report is on record of the writ petition as Annexure-13. 5. Petitioner's defence that it was actually his wife who had indulged in act of adultery and that petitioner was not having any illicit relations, as was being alleged by the department, was not accepted. The Enquiry Officer relied upon the call details, allegedly collected during the course of preliminary enquiry to return a finding that allegation of illicit relation between petitioner and the other lady sub-inspector were clearly established. A show cause notice, accordingly, was issued to the petitioner annexing there with the findings returned by the enquiry officer. This notice was replied by the petitioner. However, the petitioner did not appear before the authorities, as per the finding returned by the disciplinary authority. Ultimately, the disciplinary authority has proceeded to hold the petitioner guilty of misconduct and he has been dismissed from service vide order dated 14th October, 2014. 6. This notice was replied by the petitioner. However, the petitioner did not appear before the authorities, as per the finding returned by the disciplinary authority. Ultimately, the disciplinary authority has proceeded to hold the petitioner guilty of misconduct and he has been dismissed from service vide order dated 14th October, 2014. 6. The order of disciplinary authority records a finding that petitioner's action amounted to misconduct as it violated Rule 3(e) and Rule 11(7) of the Uttar Pradesh Government Servants Conduct Rules, 1956. This order has been affirmed in appeal. Aggrieved by the order of the disciplinary authority, dated 14.10.2014 as well as order passed in appeal dated 25th April, 2015, the petitioner has approached this Court by filing the present writ petition. A prayer is made to quash the aforesaid two orders. A further prayer is made to quash the findings returned by the enquiry officer in his report on 18th June, 2014. 7. Challenge to the order of punishment is essentially founded on following grounds:-- (i) Necessary ingredients to make out a case of misconduct under Rule 3(e) as well as Rule 11(7) of the U.P. Government Servants Conduct Rules, 1956, are not made out in the facts of the present case. (ii) It is urged that allegations of demand of dowry as well as petitioner having illicit relations with another lady, are yet to be established in a competent court where issues in that regard are pending and, therefore, the disciplinary authority clearly erred and transgressed its limits in adjudicating issues in that regard. (iii) It is also urged that finding of illicit relations between petitioner and the other lady are wholly presumptive and are based on no evidence, inasmuch as, the only evidence led in that regard was the call details between two persons, which also was neither adduced in evidence during the course of enquiry nor the petitioner was given an opportunity to explain the circumstances in that regard. Submission is that merely because two persons from opposite sex have spoken to each other would otherwise not mean that they have violated the law or are having illicit relations. (iv) It is lastly alleged that the evidence on record were otherwise insufficient to establish the alleged guilt on the part of the petitioner and the defence of the petitioner placed before the authorities has otherwise been misread or misconstrued. 8. (iv) It is lastly alleged that the evidence on record were otherwise insufficient to establish the alleged guilt on the part of the petitioner and the defence of the petitioner placed before the authorities has otherwise been misread or misconstrued. 8. Per contra, learned Standing Counsel, Sri Amar Nath Singh, submits that the charges levelled against the petitioner were clearly made out, inasmuch as, the statement of the wife as well as family members, had been duly recorded during the course of enquiry, who have supported the allegation that dowry was demanded by the petitioner in his marriage. It is also stated that the allegation of illicit relations between petitioner and the other lady have also been proved. 9. I have heard Sri M.D. Singh 'Sekhar', learned Senior Counsel assisted by Sri Akhilesh Chandra Shukla for the petitioner and Sri Amar Nath Singh, learned Standing Counsel for the respondents. 10. After having heard learned counsel for parties on the previous occasion, this Court had called upon the learned Standing Counsel to produce original records relating to conduct of enquiry against the petitioner. Order of this Court dated 22nd April, 2019 in that regard is being extracted hereinafter:-- "Petitioner has been dismissed from service on the charge, which is allegedly referable to Rules 3(A)(e) and 11-A of the U.P. Government Servant Conduct Rules. It is stated that Rules 3 and 11 have wrongly been referred to in the order impugned instead of Rules 3-A and 11-A, which shows non-application of mind. It is also submitted that much prior to making of complaint by petitioner's wife, the petitioner husband had already instituted proceedings for divorce, which are pending. Submission is that issues, which otherwise fell exclusively within the domain of the Family Court, could not have been taken up for determination by the employer. It is also stated that the provisions of Rule 3(A) of the Conduct Rules would be attracted only in defence of a lady, who alleges exploitation during the course of employment. It is also submitted that the lady with whom petitioner is stated to have had illicit relations had clearly denied factum of allegations and even otherwise she did not make any complaint which alone could justify invocation of Rule 3(A). Submission is that finding with regard to illicit relations is also perverse, inasmuch as it is not backed by any material on record. Submission is that finding with regard to illicit relations is also perverse, inasmuch as it is not backed by any material on record. According to petitioner the only material in that regard is allegedly certain call details, which were not brought on record. Reliance is placed upon specific averments made in para 16 of the writ petition, which has not been effectively met by the respondents while filing counter-affidavit. Before proceeding further in the matter, it would be appropriate to direct the learned Standing Counsel to obtain records relating to conduct of disciplinary enquiry, against the petitioner, so as to ascertain correctness of averments made in the petition in that regard. List at the top of the list on 30.4.2019." 11. When the matter was taken up yesterday, the Court was apprised that original records contain three CDs' also. The Court, therefore, permitted the learned Standing Counsel to examine those CDs', particularly as it was alleged by the petitioner that none of these CDs' contain any call details and would not constitute any material to return a finding of illicit relations between the petitioner and the lady concerned. Learned Standing Counsel has, therefore, examined aforesaid three CDs' and it is stated that first CD relates to the marriage of the petitioner and the complainant and has been relied upon to show that various articles were given towards dowry in the marriage. The other two CDs' contain recording of telephonic conversations, between the petitioner and the complainant, which have certain references to the other lady, with whom petitioner is said to be having illicit relations. It is in this factual backdrop that the Court has examined the records and the petition is accordingly being disposed of by this order. 12. At the outset it would be appropriate to refer to the provisions of the U.P. Government Servants Conduct Rules, 1956, which are alleged to have been violated by the petitioner. Rule 3(e), although is relied upon, but there exists no such rule in the Rules of 1956. The reference to Rule 3(e), actually refers to Rule 3-A(e). Rule 3-A of the 1956 Rules, reads as under:-- "[3A. Prohibition of sexual harassment of working women. - (1) No Government servant shall indulge in any act of sexual harassment of any woman at her workplace. The reference to Rule 3(e), actually refers to Rule 3-A(e). Rule 3-A of the 1956 Rules, reads as under:-- "[3A. Prohibition of sexual harassment of working women. - (1) No Government servant shall indulge in any act of sexual harassment of any woman at her workplace. (2) Every Government servant who is incharge of a workplace shall take appropriate steps to prevent sexual harassment to any woman at such workplace. Explanation. - For the purposes of this rule; "sexual harassment" includes such unwelcome sexually determined behavior whether directly or otherwise, as- (a) physical contact and advances; (b) demand or request for sexual favours; (c) sexually-coloured remarks; (d) showing any pornography; or (e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.]" 13. There is no provision, such as Rule 11(7). The only rule which may have some relevance would be Rule 11-A, which is reproduced hereinafter:-- "[11A. Dowry. - No Government servant shall- (i) give or take or abet the giving or taking of dowry; or (ii) demand, directly or indirectly from the parents or guardians of a bride or bridegroom, as the case may be, any dowry. Explanation. - For the purposes of this rule the word 'dowry' has the same meaning as in the Dowry Prohibition Act, 1961 (28 of 1961)]." 14. A perusal of Rule 3-A, would go to show that it prohibits sexual harassment of working women. Sub-rule (1), mandates a Government servant not to indulge in any act of sexual harassment of any woman at her workplace. Sub-Rule (2), puts an obligation upon the government servant, who is in-charge of the workplace, to take appropriate steps to prevent sexual harassment to any woman at such workplace. The explanation appended to sub-rule (2), defines sexual harassment. Explanation (e) is invoked in the facts of the present case. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature is also included as an act of sexual harassment for the purposes of its prohibition at the workplace. This provision appears to have been introduced for safeguarding the woman against sexual harassment of kind specified in the rule at her workplace. 15. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature is also included as an act of sexual harassment for the purposes of its prohibition at the workplace. This provision appears to have been introduced for safeguarding the woman against sexual harassment of kind specified in the rule at her workplace. 15. In the facts of the present case there is no allegation by a woman of her sexual harassment at her workplace by the petitioner so as to invoke the provisions of Rule 3-A. The alleged lady Sub-Inspector, with whom petitioner is said to have had illicit relations, has not been called upon to appear in the disciplinary enquiry proceedings. No complaint has otherwise been made by the lady sub-inspector of her sexual harassment against the petitioner. Object of Rule 3-A is to protect a woman from being sexually exploited at the workplace. The allegation by the wife about petitioner's having illicit relations with a lady sub-inspector would not qualify to be an act covered within the ambit and scope of Rule 3-A of the Rules of 1956. This aspect of the matter although has been urged in defence by the petitioner but does not appear to have been taken note of by the disciplinary authority concerned. The authorities appear to have been impressed more by the allegations made in the complaint, rather than it getting proved in the disciplinary enquiry proceedings. This observation would be warranted in the facts of the present case as the only other material which could support the plea of illicit relations between petitioner and the other lady sub-inspector and which has been relied upon for such purposes is the alleged call details of petitioner and the other lady sub-inspector which has also not been adduced in evidence. 16. There is a specific assertion in the writ petition in paragraph 16 to the effect that no such call details were actually produced in the disciplinary enquiry itself. The charge sheet which is part of the record of this petition although refers to such documentary evidence being relied upon but infact such documents were never adduced as evidence in the enquiry. The specific assertion made in paragraph 16 of the writ petition have not been properly dealt with. The charge sheet which is part of the record of this petition although refers to such documentary evidence being relied upon but infact such documents were never adduced as evidence in the enquiry. The specific assertion made in paragraph 16 of the writ petition have not been properly dealt with. Although petitioner's assertion in paragraph 16 that no documents were produced before the enquiry officer have been noticed and denied in paragraph 16 but no documents have been annexed to substantiate such averment. Neither the affidavit contains reference to any such documentary evidence, nor the records which have been produced by learned Standing Counsel contains any call details as have been referred to in the preliminary enquiry report. Law is settled that any finding returned in the preliminary enquiry cannot be relied upon in the regular disciplinary enquiry unless documents in that regard are produced and verified by then witnesses concerned. In the facts of the present case, the alleged call details have neither been produced in the enquiry nor any occasion arose for such document to have been proved by the oral evidence of the witnesses in support of such call details. Placing of reliance upon such non-existent material to return a finding of illicit relations would then be wholly unsustainable. 17. No other material is placed on record which may demonstrate that petitioner and the alleged lady sub-inspector were having illicit relations. Apart from statement of wife of petitioner with whom his matrimonial dispute is pending in Court no other materials exists. Even if call details existed before the preliminary enquiry officer of frequent talks between petitioner and the lady sub-inspector it would not justify a conclusion of illicit relations between them. No independent witnesses in that regard has otherwise been produced. The disciplinary authority or the enquiry officer, therefore, would not be justified in returning a finding against the petitioner of having illicit relation or to dismiss him from service. 18. The other charge, which is found to have been proved against the petitioner in disciplinary enquiry is with reference to Rule 11(7) of the Rules of 1956. It has already been noted that no such provision exists in the Rules of 1956. 18. The other charge, which is found to have been proved against the petitioner in disciplinary enquiry is with reference to Rule 11(7) of the Rules of 1956. It has already been noted that no such provision exists in the Rules of 1956. The only rule which may have some relevance in that regard would be Rule 11-A. This rule prohibits a Government servant from giving or taking or abetting the giving of dowry or demand, directly or indirectly from the parents or guardians of a bride or bridegroom, as the case may be. The term used 'dowry' in the Rules of 1956 would have the same meaning as is given in Dowry Prohibition Act, 1961. 19. Sri M.D. Singh 'Sekhar', learned Senior Counsel for the petitioner has submitted with vehemence that Rule 11-A also would have no applicability in the facts of the present case, inasmuch as, the marriage of the petitioner was solemnized prior to his appointment made in the U.P. Police as Sub-Inspector on 11.9.2007. The date of marriage is admitted to the parties as being 24th January, 2007. There appears to be substance in the contention of Sri Sekhar that on the date of solemnization of marriage between petitioner and complainant, the petitioner was not a Government servant. The applicability of Rule 11-A would, therefore, also be in doubt. This Court, however, need not deliberate any further on this aspect, particularly as the provisions of Rule 11-A have otherwise not been invoked by the respondents for dismissing the petitioner. 20. Coming to the next submission advanced on behalf of the petitioner, it would be worth noticing that proceedings for dissolution of marriage admittedly had been initiated by the petitioner's wife in the month of October, 2008. Till that day there existed no allegation from the side of the wife of petitioner having illicit relations with the lady sub-inspector nor any allegation of dowry had been levelled by her. It was only after proceedings for dissolution of marriage was initiated that a complaint appears to have been made, by the wife, with regard to illicit relations on the part of the petitioner. It is during the preliminary enquiry that allegations of dowry appear to have surfaced. Allegations in that regard have been denied by the petitioner and the matter is pending adjudication in H.M.P. No. 225 of 2008 before the Court of Civil Judge (Senior Division), Firozabad. It is during the preliminary enquiry that allegations of dowry appear to have surfaced. Allegations in that regard have been denied by the petitioner and the matter is pending adjudication in H.M.P. No. 225 of 2008 before the Court of Civil Judge (Senior Division), Firozabad. 21. The allegations of dowry have also been investigated by the Investigating Officer pursuant to the first information report lodged in the year 2009 and the matter is pending at the stage of trial. Contentious issue of the parties in that regard once is pending before the appropriate court, it was not prudent for the disciplinary authority to have taken it upon itself to investigate allegation of dowry against the petitioner and to return a finding in that regard against him. 22. Various contradictions have otherwise been shown in the report of the enquiry officer but I am not inclined to enter into those issues or to return a finding in that regard as it might adversely affect the ongoing proceedings pending before the competent courts. It would, however, be worth observing that once the competent court was seized of the matrimonial and dowry issues, it was not necessary for the enquiry officer or the disciplinary. authority to have taken it upon itself to rule on such issues, which otherwise fall beyond the scope of its proceedings and would be without jurisdiction. The specific charges which have been levelled against the petitioner of violation of Rules 3-A(e) and 11-A(7), therefore, are not found to have been made out, for the reasons recorded in the orders impugned. 23. The inescapable conclusion from the discussions aforesaid would be that petitioner cannot be said to have committed any misconduct in terms of the provisions contained under the U.P. Government Servants Conduct Rules, 1956 and the order passed by the disciplinary authority cannot be sustained. The orders impugned dated 14.10.2014, 25.4.2015 and 18.6.2014, accordingly, stands quashed. 24. The petitioner would be reinstated in service. Petitioner would also be entitled to continuity of service along with other service benefits including back wages. It would be open for the respondents to initiate fresh proceedings against the petitioner on the basis of outcome of proceedings pending before the other forums, if the same is otherwise permissible in law.