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2019 DIGILAW 210 (GUJ)

Kamlaben D. Patel v. State of Gujarat

2019-03-11

A.S.SUPEHIA

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JUDGMENT : A.S. SUPEHIA, J. 1. The captioned writ petition has been filed challenging the order dated 30.03.2007 passed by respondent No. 2 removing the petitioner from service as well as the Inquiry Officer's report dated 20.09.2004. 2. The brief facts of the case leading to filing of the present writ petition are as under: 2.1. The petitioner joined as Staff Nurse in the year 2000 under the respondent No. 1. Thereafter, she received a charge-sheet dated 17.03.2004 served by the respondent No. 2, inter alia, alleging that the petitioner had violated Rule 3(1)(3) and Rule 26(1)(2) of the Gujarat Civil Services (Conduct) Rules, 1971. It is alleged in the charge-sheet that the petitioner was living with one doctor namely Paresh Patel despite the fact that he had an existing wife namely Ilaben. After holding a departmental inquiry the Inquiry Officer vide his report dated 20.09.2004 held the charges proved against the petitioner. 3. Learned advocate Mr. H.J. Karathiya appearing for the petitioner has submitted that the inquiry report itself is vitiated since the relevant witnesses are not examined by the Inquiry Officer in the departmental inquiry. He has submitted that the first wife of the husband of the petitioner i.e. Ilaben is not examined in the proceedings as well as the husband of the petitioner is also not examined in the departmental inquiry conducted by the Inquiry Officer. Thus, he has submitted that the Inquiry Officer has not acted in a fair manner and no opportunity of examination of witnesses was granted to the petitioner and the same would amount to violation of principles of natural justice, which would vitiate the penalty as well as the departmental inquiry. He has further submitted that the petitioner had not entered into illegal marriage with Dr. Paresh Patel and he was not living with his wife since last more than six years as he had taken a customary divorce from Ilaben Patel on 21.12.1997. He has invited the attention of this Court to the customary divorce deed dated 21.12.1997 in this regard. He has also placed reliance on the judgment of the Apex Court in the case of Babubhai Asari vs. Union of India, 2017 (4) GLR 2850 . He has invited the attention of this Court to the customary divorce deed dated 21.12.1997 in this regard. He has also placed reliance on the judgment of the Apex Court in the case of Babubhai Asari vs. Union of India, 2017 (4) GLR 2850 . He has also submitted that the Inquiry Officer has in fact not examined the deed of customary divorce in the departmental proceedings and hence the proceedings are also required to be quashed and set aside on this ground. 4. Per contra, learned AGP Mr. Ronak Raval has submitted that the petitioner has committed misconduct under Rule 26(1)(2) of the Gujarat Civil Services (Conduct) Rules, 1971 as she has married with Dr. Paresh Patel and from the wedlock she gave birth to female child on 08.10.2001. He has further submitted that the Inquiry Officer has considered the statement of Dr. Paresh Patel on 25.06.2002 wherein he has stated that he has no relationship of husband and wife with the present petitioner and thus, it shows that there was extramarital relationship with Dr. Paresh Patel though he was married to Ilaben and she gave birth a female child. He has further submitted that the Inquiry Officer after considering the statements of the witnesses as well as the affidavit tendered by Ilaben on 30.07.2002 has rightly proved the charge and hence, the impugned order of penalty is required to be maintained. 5. As regards the submission of customary divorce is concerned, learned AGP Mr. Raval has submitted that the dissolution of marriage cannot take place on the stamp paper of Rs. 50 and since the petitioner as well as the husband of the petitioner belonged to Patel community, such customary divorce is not permissible. Hence, it can be said that the petitioner has violated the provisions of Rule 26(1)(2) of the Gujarat Civil Services (Conduct) Rules, 1971 by entering into extramarital relationship with Dr. Paresh Patel. He has further submitted that reliance placed on the judgment of the Division Bench of this Court by learned advocate Mr. Hence, it can be said that the petitioner has violated the provisions of Rule 26(1)(2) of the Gujarat Civil Services (Conduct) Rules, 1971 by entering into extramarital relationship with Dr. Paresh Patel. He has further submitted that reliance placed on the judgment of the Division Bench of this Court by learned advocate Mr. Karathiya in the case of Babubhai (supra) cannot be made applicable to the case of the present petitioner since admittedly in that case, the petitioner belongs to Scheduled Tribes and the provisions of the Hindu Marriage Act, 1953 will not be attracted whereas in the present case, the provisions of Hindu Marriage Act are not attracted and hence, the divorce which was entered into between Dr. Paresh Patel and Ilaben cannot be said to be customary divorce. Thus, it is urged by learned AGP that the present petition may not be entertained. 6. I have given my thoughtful consideration to the submissions advanced by learned advocates appearing for the respective parties and the documents placed on record are also perused. 7. In the present case, charge-sheet has been issued to the present petitioner for the violation of the provisions of Rule 3(1)(3) and Rule 26(1)(2) of the Gujarat Civil Services (conduct) Rules, 1971, which read as under: “3. General:- (1) Every Government servant shall at all times:- (i) maintain absolute integrity. (ii) maintain devotion to duty. (iii) do nothing which is unbecoming of a Government servant. Explanation [Inserted vide Government Notification GAD No. GS-88-72/CDR/1087/U.O. 12/Inq. Cell, dated 21.12.1988] - A Government servant, who habitually fails to perform a task assigned to him within the time set for the purpose and with the quality of performance expected of him, shall be deemed to be lacking in devotion to duty within the meaning of clause (ii). (2) xxx xxx xxx (3) All departmental rules and orders in respect of the subject dealt with in these rules which have been approved or may hereafter be approved by Government shall in so far as they are not inconsistent with any provisions of these rules, apply to Government servants to whom they relate. Explanation - Nothing in sub-rule (2) shall be construed as empowering a Government servant to evade his responsibility by seeking instructions from or approval of a superior officer or authority when such instructions are not necessary under the scheme of distribution of powers and responsibilities. 26. Explanation - Nothing in sub-rule (2) shall be construed as empowering a Government servant to evade his responsibility by seeking instructions from or approval of a superior officer or authority when such instructions are not necessary under the scheme of distribution of powers and responsibilities. 26. Plural Marriages:- (1) No Government servant shall enter into, or contract, a marriage with a person having a spouse living. (2) No Government servant having a spouse living, shall enter into, or contract, a marriage with any person: Provided that the State Government may permit a Government servant to enter into, or contact, any such marriage as is referred to in clause (1) or (2), if it is satisfied that:- (a) such marriage is permissible under the personal law applicable to such Government servant and the other party to the marriage. (b) there are other grounds for so doing. Rule 3 (3) of the Gujarat Civil Services (conduct) Rules, 1971 stipulates that: “3. General:- (1) Every Government servant shall at all times:- (iii) do nothing which is unbecoming of a Government servant. Rule 26 of the Gujarat Civil Services (conduct) Rules, 1971 stipulates that: 26. Plural Marriages:- (1) No Government servant shall enter into, or contract, a marriage with a person having a spouse living. 8. The facts, which are not in dispute is that mutual dissolution of marriage between the husband of the petitioner Dr. Paresh Patel and Ilaben had taken place on 21.12.1997 vide dissolution deed. Clause 4 of the deed specifically mentions that their caste permits them to take customary divorce and thereafter, remarriage is permitted accordingly, they are entering into divorce. Accordingly, their marriage was annulled and they started living separately. 9. It appears that, thereafter the petitioner in the year 2000 married to Dr. Paresh Patel. It is also coming in evidence that the he as well as Ilaben were living separately since last seven years. A perusal of the Inquiry Officer's report reveals that the most relevant witness Ilaben Patel is not examined in the departmental proceedings. The husband of the petitioner doctor Paresh Patel is also not examined. The Inquiry Officer has merely relied upon his written statement dated 27.06.2003. The petitioner vide representation dated 13.09.2004 to the Inquiry Officer has specifically stated before the Inquiry Officer to examine Ilaben Patel as well as Dr. Paresh Patel as witnesses. The husband of the petitioner doctor Paresh Patel is also not examined. The Inquiry Officer has merely relied upon his written statement dated 27.06.2003. The petitioner vide representation dated 13.09.2004 to the Inquiry Officer has specifically stated before the Inquiry Officer to examine Ilaben Patel as well as Dr. Paresh Patel as witnesses. She has further stated that Inquiry Officer has not called for any documents related to both the aforesaid persons. She has specifically pointed out the lacuna in the departmental proceedings vide representation dated 13.09.2004 that the Inquiry Officer has not summoned the aforesaid witnesses. 10. At this stage, it would be apposite to incorporate the observations made by the Apex Court in the case of Union of India vs. Prakash Kumar Tandon, AIR 2009 SC 1375 in para-17, has observed that: 17. The principles of natural justice demand that an application for summoning a witness by the delinquent officer should be considered by the enquiry officer. It was obligatory on the part of the enquiry officer to pass an order in the said application. He could not refuse to consider the same. It is not for the Railway Administration to contend that it is for them to consider as to whether any witness should be examined by it or not. It was for the enquiry officer to take a decision thereupon. A disciplinary proceeding must be fairly conducted. An enquiry officer is a quasi judicial authority. He, therefore, must perform his functions fairly and reasonably which is even otherwise the requirement of the principles of natural justice. 11. The Apex Court in the case of Union of India and Others vs. Gyan Chand Chattar, (2009) 12 SCC 78 has observed thus: “35. In view of the above, law can be summarised that an enquiry is to conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be misconduct. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct.” 12. As regards the contentions raised by the learned AGP Mr. Ronak Raval about the illegal customary divorce, which was entered into between the husband of the petitioner Dr. Paresh Patel and Ilaben Patel on 21.12.1997 is concerned, the Inquiry Officer is blissfully silent on the said aspect and has not even cared to deal with the same whether the divorce of the husband of the petitioner with Ilaben Patel was valid or not. For expressing any opinion on the divorce between that, the examination of both Ilaben Patel and doctor Paresh Patel was obligatory, which is not done by the Inquiry Officer. Thus, it can safely be presumed that in wake of any contrary finding with respect to the customary divorce, the divorce deed dated 21.12.2017 between Dr. Paresh Patel and Ilaben Patel can be said to be valid as per the clause-4 of the deed. 13. In the considered opinion of this Court, the disciplinary proceedings is held in violation of principles of natural justice and dehors the provisions of Rule 9 of Gujarat Civil Services (conduct) Rules, 1971 which prescribes the procedure for imposing the major penalties. In the instant case, the provisions of Rule 9(13) and 9(16), which provide for examination, cross-examination and re-examination of the witnesses are violated, since the essential witnesses are not examined in the departmental proceedings. Furthermore, there is no findings given by the Inquiry officer on the customary divorce of the husband of the petitioner. 14. Under the circumstances, in view of the aforesaid analysis, the present writ petition is allowed. The impugned order of removal dated 30.03.2007 as well as the Inquiry Officer's report dated 20.09.2004 are hereby quashed and set aside. The petitioner shall be reinstated in service with all the consequential benefits with continuity of service. The continuity of service shall be considered for all purposes including grant of increments as well as seniority and retiral benefits. The impugned order of removal dated 30.03.2007 as well as the Inquiry Officer's report dated 20.09.2004 are hereby quashed and set aside. The petitioner shall be reinstated in service with all the consequential benefits with continuity of service. The continuity of service shall be considered for all purposes including grant of increments as well as seniority and retiral benefits. However, it is clarified that the petitioner shall be entitled to 50% backwages as the impugned proceedings are set aside on the faulty procedure. Appropriate orders in terms of the directions of this Court shall be passed within a period of three months from the date of receipt of this order. Rule is made absolute.