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2019 DIGILAW 2236 (RAJ)

Neena Kumari v. State of Rajasthan

2019-08-20

PUSHPENDRA SINGH BHATI

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JUDGMENT Pushpendra Singh Bhati, J. - The petitioner has preferred this writ petition claiming following prayers:- (I) By a writ of mandamus the impugned order dated 18.8.2010 (Annex.1), may kindly be quashed and set aside. (ii) By writ of mandamus it may be directed that petitioner shall be deemed to be continued in service with effect from the same date and shall be entitled to all consequential reliefs. (iii) That any other writ, order or direction, which your lordship may deem fit and proper, be passed in the interest of justice and to grant adequate relief to the petitioner. (iv) The costs of the writ petition may also be granted in favour of the petitioner." 2. The petitioner was appointed as Nurse Grade-II on 12.09.1983 and she has rendered satisfactory unblemished services and has been superannuated on 30.11.2017. The petitioner was served upon a charge-sheet on 18.12.2004 under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short as "CCA Rules, 1958") for violation of Rule 25 of Rajasthan Civil Service (Conduct) Rules, 1971 (hereinafter referred to as "Rules of 1971"). The Enquiry Officer submitted a report on 3.5.2009 before the Disciplinary Authority in which he could not reach to a conclusion due to non-cooperation of the parties. The Disciplinary Authority issued a letter under Rule 16(10) of the CCA Rules, 1958 on 28.10.2009. The petitioner submitted a detailed reply through registered post. The Enquiry Officer again submitted a report on 12.4.2010 by not finding the petitioner guilty. The Disciplinary Authority again gave a notice of dis-agreement under Rule 16(10) of the Rules of 1958 and after considering the reply, the impugned order holding the petitioner guilty for violation of Rule 25(2) of the Rules of 1971 was passed on 18.8.2010. 3. Mr.Saxena, learned counsel for the petitioner has pointed out from Annexure-3 that one Shobha Lodha had preferred a case against her husband Dinesh Raj Lodha for offences under Section 498-A and 495 of the IPC stating therein that the marriage between both of them had solemnized on 07.12.1991. Learned counsel for the petitioner had shown the order dated 25.05.2004 in which he laid emphasis upon para No.12, which reads as under:- 4. Learned counsel for the petitioner thus submitted that the marriage itself was not proved by the Competent Court of Law and hence, the disciplinary proceedings were erroneous. 5. Learned counsel for the petitioner had shown the order dated 25.05.2004 in which he laid emphasis upon para No.12, which reads as under:- 4. Learned counsel for the petitioner thus submitted that the marriage itself was not proved by the Competent Court of Law and hence, the disciplinary proceedings were erroneous. 5. Learned counsel for the petitioner has also drawn attention of this court to the charge, which reads as under:- 6. Learned counsel for the petitioner submitted that the allegation includes having marital relationship with Dinesh Raj Lodha and consequential birth of child. Counsel for the petitioner has drawn attention of this court to the order of Maternity Leave given to the petitioner which is Annexure-2 in which Maternity Leave was from 19.02.1990 to 19.05.1990. Counsel further submits that the best case of the respondents is that a child was given birth by the petitioner on account of her marriage with Dinesh Raj Lodha between 19.02.1990 and 19.05.1990. Learned counsel for the petitioner has also drawn attention of this court towards Rule 25(2) of the Rules of 1971, which reads as under:- "Unamended: 25. Bigamous marriage.- (1) No Government servant who has a wife living shall contract another marriage without first obtaining the permission of the Government, not withstanding that such subsequent marriage is permissible under the personal law for the time being applicable to him. (2). No female Government Servant shall marry any person who has a wife living without first obtaining the permission of the Government." 7. Learned counsel for the petitioner has drawn attention of this court towards amended Rule 25(2) of the Rules of 1971 as amended in the year 2001, which reads as under:- "25. Restriction regarding marriage: (1) ..... (2) No Government servant having a spouse living, shall enter into, or contract, a marriage with any person: Provided that the Government may permit a Government servant to enter into or contract, any such marriage as is referred to in sub-rule (1) or sub-rule (2) if it is satisfied that: (a) such marriage is permissible under the personal laws applicable to such Government servant and the other party to the marriage; and (b) there are other grounds for so doing." 8. Learned counsel for the petitioner thus submits that since the petitioner was assumed/presumed to be married with one Dinesh Raj Lodha any time before 19.02.1990, therefore, the petitioner cannot suffer the allegation of having relationship with a married man, which is the mandate of Rule 25(2) of the Rules of 1971 at the time of allegation which is an un-amended rule. Admittedly, the marriage of Smt. Shobha took place with Dinesh Raj Lodha on 07.12.1991 and thus Dinesh Raj Lodha was not married when he was in relationship with the present petitioner as it was prior to 19.02.1990. Learned counsel has also relied upon the judgment of Mahesh Chand Sharma Vs. State of Rajasthan & Ors. rendered in SBCWP No.2067/1999 decided on 07.03.2019. Relevant paras of the said judgment read as under:- 43. Thus, this court feels that a human dignity attaches to itself also a right of concept of autonomy and also a right to take ones own decisions for himself or herself relating to his/her body and choices of his/per partner for whom he or she wishes to live or have sexual intercourse. These choices and selections cannot be a subject matter of departmental proceedings and no employer can be allowed to do moral policing on its employees which go beyond the domain of his public life. 44. In view of the above discussions and observations, this court is of the opinion that an act of relationship entered by an individual with another female or male as the case may be while is/her spouse is alive would be an act of amounting to adultery and would be considered as an immoral act so far as the Indian society is concerned. It is not to be appreciated. The same would, however, not be a ground for initiating departmental proceedings by the employer and it be left best for the person who may be affected individually to take remedy and proceed against him/her in civil law or for initiating divorce proceedings as the case may be. 45. It is not to be appreciated. The same would, however, not be a ground for initiating departmental proceedings by the employer and it be left best for the person who may be affected individually to take remedy and proceed against him/her in civil law or for initiating divorce proceedings as the case may be. 45. Thus, this court concludes that the respondents had no authority to issue letter dated 30/01/1999 directing the petitioners to undergo DNA Test along with child of Dharma Ram and the action of suspending the petitioners and issuing subsequently memorandum dated 16/12/2000 under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 is found to be illegal and unjustified and the same is quashed and set aside and further, it is held that the State Government shall not initiate departmental proceedings on the basis of a complaint of any person against a Government servant alleging therein of the said Government servant having extra-marital relationship with another man or woman whether married or unmarried. 46. Consequently, both the writ petitions are allowed with all consequential benefits and it is held that the petitioner Mahesh Chand Sharma, who has attained superannuation during pendency of the writ petition shall be entitled to all retiral and post retiral benefits and similarly, the petitioner Dharma Rani shall also be entitled for all the consequential benefits." 9. Learned counsel for the respondents has vehemently opposed the submissions made by learned counsel for the petitioner on the count that violation of Rule 25(2) of the Rules of 1971 was a requirement which the petitioner being a Government Servant was required to follow. Counsel for the respondents submit that the absolute language of Rule 25(2) of the Rules of 1971 was flawed and thus the language was amended in 2001 and violation of the amended Rule of 2001 is reflected on the face of the petitioner. 10. Mr.Vivek Tyagi and Mr.Prakhar Gupta, learned Counsel for the respondents, submit that the precedent law in the case of Mahesh Chand Sharma's case (supra) does not apply in this case because that was a case of relationship; whereas in the present case, the allegation is with regard to bigamy. 10. Mr.Vivek Tyagi and Mr.Prakhar Gupta, learned Counsel for the respondents, submit that the precedent law in the case of Mahesh Chand Sharma's case (supra) does not apply in this case because that was a case of relationship; whereas in the present case, the allegation is with regard to bigamy. The counsel for the respondents further submitted that the petitioner had herself denoted in her documents the name of Dinesh Raj Lodha as her husband and thus in violation of Rule 25(2) of the Rules of 1971 punishment is justified. 11. After hearing learned counsel for the parties and perusing the record of the case as well as the reasonings quoted above, this court is of the opinion that once the marriage of the petitioner with Dinesh Raj Lodha is presumed to be that of pre 19.02.1990 as reflected in Annexure-2 when the maternity leave of the petitioner began and when she is supposed to have delivered a child out of the relationship with Dinesh Raj Lodha, then the Rule 25(2) of the Act of 1971, as then applicable unamended before 2001, would not apply upon the present petitioner as she had married only with unmarried man which would not bring her within the purview of the unamended Rule of 25(2) of the Rules of 1971. This court is of the opinion that the petitioner was regularly selected Nurse Grade-II since 12.09.1983 and she had superannuated on 30.11.2017 as the impugned order of termination was not given effect to due to the interim order passed by this court on 03.09.2010 which reads as under:- "Petitioner appeared in person and submits that allegation as alleged against her was that she has entered into second marriage with one Mr. Dinesh Raj Lodha who happens to be a government servant and the charge has been found proved against her and punished with the penalty of dismissal from service vide order dt.18.08.2010 (Annex.1). Dinesh Raj Lodha who happens to be a government servant and the charge has been found proved against her and punished with the penalty of dismissal from service vide order dt.18.08.2010 (Annex.1). She submits that in ordinary course appeal is required to be preferred against the order impugned u/r. 23 of the Rules but in the facts of the instant case when she is the only bread earner and two children are completely dependent upon her and there is no source of livelihood except the present employment and besides this the alleged immortality which is to ble examined by this court she has not committed any fault so far in discharge of her official duties on the post held by her and in such circumstances if she is called upon to avail alternative remedy that may cause predjudice to her. Admit. Issue notice of writ & stay petition. In the meanwhile and until further orders, operation of order dt. 18.8.2010 (Annex.1) so far it relates to inflicting penalty upon the petitioner is concerned shall remain stayed and respondents are directed to allow her to continue to work on the post held by her prior to passing of the order impugned." 12. Thus in the light of the aforesaid observations and nonapplicability of Rule 25(2) of the Rules of 1971, as the petitioner was not married with married man i.e. Dinesh Raj Lodha on any date prior to 19.02.1990. 13. Accordingly, the writ petition is allowed. The impugned order dated 18.08.2010 is quashed and set aside. The petitioner shall be given all consequential benefits of continuous service. The benefit shall be released to the petitioner within a period of three months from today. 14. The stay application is also disposed of.