JUDGMENT
1. Is the phrase ‘unbecoming of a Government servant’ occurring in Rule 3(1)(iii) of the Gujarat Civil Services (Conduct) Rules, 1971 so much elastic that it can take within its sweep certain behaviour which may cause some displeasure to his superior and which may not be in accord with the personal beliefs and liking of the superior officer ? Assumed vagueness of the phrase has rendered an unfortunate Head Constable jobless. Hence the necessity to interpret and understand the precise meaning of the same.
2. The petitioner is an armed constable. He challenges the legality and validity of the order dated May 7, 1986 a copy of which has been produced along with the affidavit-in-reply filed on behalf of the respondents. By this order it is directed that the petitioner be removed from service.
3. There is no dispute with regard to the fact that the petitioner joined service as an armed police constable in the year 1974. He was at Khambhalia Police Station since March, 1978 and was occupying a quarter in the police line. It is also undisputed that the petitioner is a married man. At the relevant time one Bai Samu was staying with him in the police line quarter along with his wife and other family members. Sometime in the last week of June or first week of July, 1984, there was an accidental fire in the house of the petitioner and Bai Samu had suffered excessive burns. She was removed to hospital, but, unfortunately, she died.
4. On September 3, 1985, the respondent authorities served upon the petitioner a charge sheet dated August 26, 1985. It was alleged that the petitioner was a married man and yet, without performing any marriage ceremony either as per Hindu rites or according to Mohammedan religion, he allowed one Hindu girl Bai Samu to stay with him in the police line quarter. It was alleged that this was an act of immorality and against discipline, normal conduct and not befitting a police officer who is a member of the disciplined force. The second count of charge was that he allowed the said Hindu girl, who was a stranger, to stay with him in the Police line quarter without obtaining permission of any officer of the department. It was alleged that this was an act of serious breach of the Rules.
5. The petitioner replied to the charge sheet. Departmental proceedings were held against him. Several witnesses were examined. Ultimately the inquiry officer held that the charges levelled against the petitioner were proved. The inquiry officer submitted his report to the disciplinary authority. The disciplinary authority concurred with the findings arrived at by the inquiry officer and issued a show cause notice dated April 1, 1986 which was served upon the petitioner on April 8, 1986, By this notice the petitioner was informed that the charges levelled against him were proved and he was called upon to explain as to why the penalty of removal from service should not be imposed upon him. The petitioner submitted his reply to the same. Thereafter, before the order dated May 7, 1986 was served upon him he approached this Court and challenged the legality and validity of the order of removal from service passed by the respondent authorities.
6. It is contended on behalf of the respondent-authorities that the charge levelled against the petitioner is covered by the provisions of Clause 3(1)(iii) of the Gujarat Civil Services (Conduct) Rules, 1971. The relevant part of the Rule says that every Government servant shall at all times do nothing which is ‘unbecoming of a Government servant’. Therefore, the short question which requires to be determined in this case is as to whether the allegations made, and held proved, against the petitioner would amount to ‘misconduct’ which can be termed ‘unbecoming of a Government servant’ ? The controversy between the parties is required to be decided by keeping this central question in mind.
7. After all, what was the charge against the petitioner ? The charge has been reproduced hereinabove in para 4. In substance it was alleged that he was married man; and yet he allowed one Hindu girl to stay with him in Police line quarter without performing marriage ceremony. It was further alleged that he had not taken permission of any superior officer before allowing this girl to stay with him.
8. After consideration of the evidence of the witnesses examined in the departmental proceedings, the Enquiry Officer came to the conclusion that the petitioner was staying in the Police line quarters in Khambhalia since March, 1978; that he was staying there with his wife and a child; that during the period of his stay there, a Hindu girl named Samu had come to contact with Haziraben, the wife of the petitioner, in as much as the girl was often coming there to sell vegetables; that Haziraben had good relations with that girl; that for about twenty days prior to the accidental fire, the girl was staying with the petitioner in the Police line quarter occupied by the petitioner; that the accidental fire and the consequent burning of Bai Samu took place in the premises in question. The Enquiry Officer further held that the girl was kept in the quarter without performing marriage either as per Hindu rites or Mohammedan religion. On these findings it was held that this was an immoral act unbecoming of a Police officer. With regard to the second count of the charge it was held that no permission of the superior officer was taken before allowing the girl to stay in the quarter and therefore it was held proved.
9. The learned Counsel for the respondents submitted that if a married man allows an adult unmarried girl to stay in his quarter it would amount to having a keep with him. Therefore, this would amount to misconduct as contemplated in Clause 3(1)(iii) of the Gujarat Civil Services (Conduct) Rules, 1971. This contention cannot be accepted. Be it noted that there was no charge against the petitioner that he had allowed or had permitted a concubine to stay in the Police line quarter. The charge was simple enough that he was a married man and yet he allowed a Hindu girl to stay with him in the Police line quarter, without performing marriage ceremony either as per Hindu rites or Mohammedan religion. Even if the charge is held proved, can it be said to be a misconduct ? If this amounts to misconduct, I am afraid, many Government servants (probably including very highly placed officers) would be in danger of being removed from service.
10. It can never be said that a Government servant cannot allow an unmarried girl to stay in the Government quarters occupied by him. It must be emphasized that there was no charge against the petitioner that he was misusing the girl or that he had any illicit relations with her, and that the Police line quarters were being used for such immoral purposes. The charge was simple enough that he allowed the girl to stay with him without performing marriage ceremony. Another count of charge was that he committed this ‘misconduct’ without taking permission from any superior officer. To permit an adult girl to stay with one’s own family is not ‘misdeed or ‘misconduct’. There is nothing to show that while permitting someone, a male or female, to stay in one’s own house, permission of any superior officer is required to be taken. For occupying Government quarter, there is no such restriction, nor any such provision is shown to me.
11. The learned Counsel for the petitioner submitted that even if the disciplinary authority thought that what the petitioner did was improper, the same cannot be considered as ‘unbecoming of a Government servant’ unless that particular conduct is specified as misconduct in the relevant Rules. He relied upon the decision of the Supreme Court in the case of Rasiklal v. Ahmedabad Municipal Corporation, (AIR) 1985 SC 504. In that case the employee concerned was, in past, removed from Government service. But while applying for the post of Head Clerk with Ahmedabad Municipal Corporation, in the relevant column it was stated that he had served in Sales Tax Department and that he had resigned from service due to transfer. This was clearly both suppression of material fact and misrepresentation. Therefore, he was charge sheeted and ultimately removed from service. He lost before the Labour Court at well as before the High Court. While dismissing the case the High Court made observation to the effect that even if the allegation of misconduct does not constitute misconduct amongst those enumerated in the relevant service regulations, yet the employer can attribute to his employee what would otherwise per se be a misconduct though not enumerated, and punish him for the same. In this connection, the Supreme Court has observed as follows :
“This proposition appears to be startling because, even though either under the Certified Standing Orders or service regulations, it is necessary for the employer to prescribed what would be the misconduct so that the workman/employee knows the pitfall he should guard against, if after undergoing the elaborate exercise of enumerating misconduct, it is left to the unbridled discretion of the employer to dub any conduct as misconduct, the workman will be on tenter-hooks and he will be punished by ex post facto determination by the employer. It is a well-settled cannon of penal jurisprudence that removal or dismissal from service on account of the misconduct constitutes penalty in law – that the workman sought to be charged for misconduct must have adequate advance notice of what action or what conduct would constitute misconduct.”
12. The aforesaid decision of the Supreme Court has been followed by this Court (Coram : N. H. Bhatt, J.) in the case of Karsanbhai D. Parmar & Others v. State of Gujarat & Others, in Special Civil Application No. 221 of 1983 decided on September 24, 1985, (1986) GLT 87 (G.H.C.). In that case it is observed to the effect that to keep a mistress is not misconduct for a policeman, and whatever is immoral or improper in a given society cannot necessarily be branded as misconduct. The learned Counsel for the respondents submits that in the aforesaid case before this High Court no advocate of either side appeared. Moreover, the observations of the Supreme Court in the case of Rasiklal (supra) have been applied out of context. In his submission it would be improper for a Government servant to keep a mistress and such conduct would certainly be unbecoming of a Government servant. Be that as it may. That is not these case before me. Therefore, even if the correctness of the aforesaid decision of this High Court is doubted, the principle laid down by the Supreme Court in Rasiklal’s case (supra) are required to be followed and applied. Therefore, even if both the counts of charge against the petitioner are admitted or are held proved, in can never be said that the same constitutes misconduct ‘unbecoming of a Government servant.’
13. The word ‘unbecoming’ is not defined in the Rules in question. Therefore, we have to go by the dictionary meaning of the word. Dictionary meaning of the word ‘unbecoming’ is ‘indecorous, not proper or befitting, not suited to the wearer’. In the context of the Rules it would mean either ‘indecorous’ or ‘not proper or befitting’. However, while considering the conduct of a Government servant it is to be kept in mind that the conduct should be indecorous or improper as a Government servant. The disciplinary authority cannot determine the nature of conduct as indecorous or improper as per his own norms of behaviors and beliefs. Some guidelines are inherent in the Rules, and it is necessary that the same may be kept in mind. They are as follows :
(1) The aforesaid rule occurs in the Gujarat Civil Service (Conduct) Rules, 1971. Therefore the behaviour which is to be branded as misconduct should have nexus with the duties to be performed by the Government servant.
(2) Having regard to the office held by a Government servant he should be required to perform certain duties. If his conduct is such that it interferes or leads or interfere directly or indirectly with the honest discharges of his duty such conduct may be considered as unbecoming of a Government employee.
(3) The behaviour which is being viewed as misconduct may be a matter of personal belief or non-belief of the employee concerned. It may be such to the displeasure of the disciplinary authority concerned, but if the behaviour has no nexus with the duty to be performed by the Government employee, the same cannot be branded as misconduct under the rules.
(4) While considering a particular conduct as unbecoming of a Government servant one must bear in mind the status of Government employee as distinct from other employee and from other citizens. A Government servant must have taken oath under the Constitution or the might have been administered oath of secrecy, fidelity and sincerity while discharging his duty. A Government servant is bound by his oath; if his conduct is contrary to his oath, it may be considered indecorous or unbefitting to a Government servant.
(5) Is the behavior or conduct of the Government servant concerned, runs counter of the aims and objects of the Constitution or is it against the spirit and object of any provision of law which he, as Government servant, is supposed to uphold and implement as a part of his duty ?
(6) In a given case even though a particular behaviour may be a matter of personal life of the employee concerned it may have direct or indirect repercussions on the duty to be performed by the employee as a Government servant. To illustrate, normally it would never to objected to if a Government servant, in leisure hours, visits the business premises of his relatives. But if a District Civil Supplies Officer every day visits and sits for couple of hours at the business premises of his relatives where the essential commodities are being stored and traded, this may be considered objectionable. Other traders may think that he might be passing on some important information in advance, or that he might act with partiality and with bias in the case of this particular trader who happens to be his relative. Something which is quite normal and innocuous for others may not be permissible in his case. In such case, the employee may have to justify his conduct which in absence of good and sufficient explanation may be considered as ‘misconduct’. Such instance cannot be enumerated. Each case has to be judged on the basis of its facts and circumstances.
Therefore, while branding a particular behaviour as misconduct, the first question which is required to be posed is, has this conduct any nexus with the duty to be performed by the Government servant ? If so, is it merely a matter of personal belief regarding morals or immoral of the officer concerned ? Even so, has it and direct or indirect bearing on the duties to be performed by the employee concerned ? Answers to all these questions would determine whether particular behaviour is misconduct or not.
14. If these factors are not taken into consideration and any conduct which the disciplinary authority or the superior officer considers to be improper or indecorous for a Government employee is treated as misconduct, then the behaviour pattern, even in the personal life of Government employees, would be determined-rather dictated-as per the wishes and whims of the superior Government officers. This would create a society of sycophants. In such society top brass in service would behave as feudal lords and the employees in lower ranks, will have to mould their behaviour pattern so as to please their superior ‘lords’ (officers). In that case lower ranks in service will not be that of individual citizens having their own separate identity but they will become serfs or slaves. This can never be the intention of the Rules. If this interpretation is placed on the term ‘unbecoming of a Government servant’ it would simply mean ‘behavior which causes displeasure to the superior’s. Such absurd meaning cannot be ascribed to this phrase. If it is interpreted in that fashion, the provisions of the Rules would become arbitrary and ultra vires the Constitution. Therefore, the only interpretation which can be placed on the phrase ‘unbecoming of a Government servant’ would be as indicated hereinabove.
15. In the light of the aforesaid interpretation of the phrase ‘unbecoming of a Government servant’ what is stated in the report of the Inquiry Officer may be examined. It is evident from the record that the girl was staying in the premises and it was known to the wife of the petitioner. The girl wanted to marry with the petitioner and, therefore, she had left her parental house after informing her mother and brother. The girl was major. Everyone concerned knew that the girl had come to the house of the petitioner voluntarily and the petitioner had not exercised any undue influence over her. It is not the finding in the inquiry report nor was there any such charge that the petitioner exercised undue influence over the girl. From the record of the case it becomes clear that the girl had stayed at the house of the petitioner and was doing household work. The petitioner’s wife was pregnant and she had gone to her parents’ house. During this period the girl was doing the household work. This is clear from the deposition of Haziraben, wife of the petitioner, who has been examined as a witness in the departmental inquiry held by the department. It was under these circumstances that the girl had stayed with the petitioner in Police line quarter.
16. Even if the aforesaid finding is accepted in its entirety, it can never be said that the petitioner has committed any misconduct ‘unbecoming of a Government servant’. There is no finding that aforesaid conduct of the petitioner had any nexus with the duty to be performed by him or that his conduct interfered or even tended to interfere with the honest discharge of his duties. Thus, the disciplinary authority has completely misdirected himself while coming to the conclusion that the petitioner was guilty of misconduct ‘unbecoming of a Government servant’.
17. The learned Counsel for the petitioner submitted that the disciplinary authority suffered from the obsession, some how or other, with the fact that the unfortunate girl who died was a ‘Hindu’ girl and the petitioner happens to be ‘Mohammedan’. This was probably not acceptable to the authority concerned. If a Hindu girl stays with a Mohammedan boy for few days during the absence of the wife of the Mohammedan boy, can it ever be said to be a misconduct ? It is submitted that this inference could never have been drawn unless the mind of the authority was influenced by the communal frenzy which had engulfed the State of Gujarat before some time. The learned Counsel for the petitioner further contended that unfortunately the communal virus has deeply affected the action of even the highly placed Government officers. The learned Counsel for the petitioner tried to substantiate his argument by pointing out from the charge sheet and other relevant documents that the words ‘Hindu girl’ occurred in almost each and every paragraph of these documents.
18. The aforesaid allegation made by the learned Counsel for the petitioner does not seem to be correct. But it does appear that in view of the language used in the charge sheet and other documents, one may harbour such feeling and apprehend that he has been treated differently as the girl belonged to Hindu community. Hence this fact was brought to the notice of the learned Counsel appearing for the respondents. It is submitted by the learned Counsel for the respondents that the disciplinary authority was not at all influenced by this circumstance. He has also pointed out that in affidavit-in-reply certain averments which had crept in inadvertently have been withdrawn. To this effec, further affidavit is also filed. In the facts and circumstances of the case and particularly in view of further affidavit filed on behalf of respondents, I am inclined to accept the explanation rendered by the learned Counsel appearing for the respondents. Hence, in the facts and circumstances of the case, without there being anything more, the allegations made by the learned Counsel for the petitioner against the disciplinary authority cannot be accepted.
19. However, at the same time it is necessary to sound a note of caution. It should always be borne in mind by the officers exercising public duty that we, as a nation, are wedded to secularism. It is the fundamental duty of every citizen to abide by the Constitution and respect its ideals and institutions. It is also the fundamental duty (See : Article 51A(e)) of all the citizens to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities. The values enshrined and the objects set forth in the Constitution cannot be achieved unless all the public officers scrupulously keep in mind that even remotely no one should go with the feeling that because he belongs to a particular caste or community he has been ill-treated.
20. In above view of the matter, even if the charges levelled against the petitioner are proved, the same do not amount to misconduct. Therefore, the impugned order of penalty directing the petitioner to be removed from service cannot be sustained and the same is required to be quashed and set aside.
21. In the result, the petition is allowed. The impugned order dated May 7, 1986, a copy of which is produced at Annexure-I to the affidavit-in-reply removing the petitioner from service, is quashed and set aside. Rule made absolute with no order as to costs.