1. I agree that the appeal must be dismissed. And in view of the importance of the questions raised, I propose to set out my reasons.
2. The facts are already set out in the judgment of my brother Gulati, and I need not repeat them. here.
3. The appellant has raised three questions before us.
4. The first contention is that the judgment of this Court in Special Appeal No. 473 of 1960 operates as res judicata and this appeal should also be disposed of on the ground which found favour there. I cannot agree. That case was taken in appeal to the Supreme Court, and the appeal was allowed to be withdrawn with liberty to file a fresh petition. In the circumstances, it cannot be said that any finding in the appeal concludes the questions raised before us. The Supreme Court expressed no opinion on the merits of the points raised in the appeal and cannot be taken, therefore, to have approved of what was decided by this Court. Indeed while allowing the appeal to be withdrawn it expressly granted liberty to the respondent to file a fresh petition. The first contention is rejected.
5. The second contention is that the findings of the Administrative Tribunal and its consequent recommendation are not matters amenable to certiorari inasmuch as there is no error of law apparent on the face of the record. The submission, I think proceeds on a misconception of the true nature of the case set up by the respondent. The case of the respondent is that there was no jurisdiction in the Tribunal to take the proceedings which it did because the reference made to it by the Governor fell outside the scope of Rule 4 of the U.P. Disciplinary Proceedings (Administrative Tribunal Rules, 1947. Rule 4 empowers the Governor to refer to the Tribunal only cases in respect of matters involving (a) corruption, (b) failure to discharge duties properly, (c) irremediable general inefficiency in a public servant of more than ten years standing and (d) personal immorality. The respondent says that cases which do not fall within any of these four clauses cannot be referred at all to the Tribunal, and, he contends, the present is such a case.
When it is plain from the language of Rule 4 that the Governor has power to refer cases to the Tribunal of specified categories only, he has no power to refer cases which do not fall within those categories. The charges framed against the respondent were to the effect that he was guilty of personal immorality and had failed to discharge his duties properly. If the particulars framing the basis of the charges cannot reasonably be said to constitute personal immorality or failure to discharge duties properly, clearly the case could not have been referred to the Tribunal and the Tribunal could have had no 'jurisdiction in the matter. It is settled law that a writ in the nature of certiorari may be issued where the impugned order either suffers from jurisdictional error or is vitiated by a manifest error of law or there is a breach of the principles of natural justice. Any one of these considerations would open the door to the grant of a writ in the nature of certiorari, consequently the submission that relief should be refused because the findings of the Tribunal are not manifestly illegal must be rejected if otherwise it is found that the reference of the case to the Tribunal and the proceedings consequently taken by the Tribunal are without jurisdiction.
6. The last contention is that upon the findings of the Tribunal the respondent must be considered to be guilty of personal immorality and to have failed to discharge his duties properly. It is urged that the finding of the learned single Judge to the contrary is erroneous. Now, personal immorality has been defined by Rule 2(e) as follows:
' 'Personal immorality' means 'vicious habits relating to drink, sex and gambling which reduce the utility of a public servant so as to damage Government or the official generally in public esteem.'
Therefore, there must first be a vicious habit relating to drink, sex or gambling or more than one of them. The learned Single Judge has observed that all three must co-exist in order to constitute 'personal immorality'. With respect, I am Unable to agree. I cannot imagine that the rule making authority, when framing these rules, could have contemplated only those individuals who are sodden with drink, debauched by sex and who gamble to the point of depravity. The qualifying consideration set out in the definition refers to habits 'which reduce the utility of a servant so as to damage Government or the official generally in public esteem.' I should think that the single habit of drink or sex or gambling could by itself bring about that result if given to as a vicious habit. It is not necessary that drink, sex and gambling should all be associated together. In my opinion, if a Government servant suffers from vicious habits relating to sex alone and it reduces his utility as a public servant so that he or the Government suffers generally in public esteem he can be said to be guilty of 'personal immorality'.
7. The question is: On the charge found and proved against the respondent can it be said that he was guilty of vicious habits relating to sex
8. What is a vicious habit relating to sex? It must be a habit and the habit must be vicious. It must represent the total of repeated acts amounting to a vice. To be vicious it must attain the dimensions of a vice, it must have the nature and quality of a vice, it must violate moral rectitude, it must be evil and opposed to accepted canons of murality. It is permissible to say that within the bonds of matrimony a man may indulge in the habit of sex. But that does not mean that the habit is vicious. It would be vicious if the sexual relationship was not confined to the marriage partner but was extended indiscriminately to other women. Sex becomes a vice when it results in the destruction of moral social standards. The learned single Judge seems to have been impressed by the definition of the term 'vicious' as connoting savagery, fierceness, ferociousness or mischievousness, and from that he has concluded that to be vicious a man must repeat an act in a way that its impact on others would be to make him seem depraved or dangerous. I do not think that for a man to be possessed of vicious habits it is necessary to go so far. Contextual considerations would be satisfied by a less aggravated form.
9. Reverting to the case before us, it seems to me that while what the respondent did may be described as a vicious act it' cannot be said that he was given to a vicious habit. The respondent, it is said, had an illicit relationship with Smt. Joshi. If he did, it lasted for about two months. Even if it consisted of more than one act of intimacy between them, they were all acts comprised in a single continuous relationship. To be a habit, in my opinion, there must be a series of unconnected or independent pieces of conduct or behaviour. The conduct or behaviour must be repeated, and yet the repetition must not be so intimately associated as to constitute what one might describe as a single transaction. At the same time. I cannot endorse the view of the learned single Judge that if a man enters into sexual relationship with a single woman it cannot be described as a habit relating to sex. In my opinion, if the relationship consists of unconnected and unrelated periods of Intimacy, then even if the association is confined to the same woman it can be described as a habit relating to sex,
10. Having regard to the particulars of the charge and the findings of the Tribunal, there is no force in the contention that the conduct of the respondent falls within the definition of 'personal immorality' set out in Rule 2 (e). The reference of the case to the Tribunal on this charge is bad for want of jurisdiction.
11. On the question whether the respondent can be said to have failed to discharge his duties properly within the meaning of Rule 2 (d), my brother Gulati has dealt with it in his judgment. The charge as framed does not indicate that the enquiry as to the whereabouts of Smt. Joshi was made by the officers named therein in their official capacity and that the respondent failed to discharge any statutory duty attached to his office. In this regard also. I am of opinion that the reference is without jurisdiction.
12. The reference being entirely without jurisdiction the appeal must be dismissed.
13. Now, there remains the question of costs. And for this purpose I think it necessary to refer to the conduct of the respondent. His conduct throughout betrays a grievous fall from the high standards expected of a responsible Government Officer. The consequences of what he did were far-reaching. The public reputation and future of a respectable family were deeply involved. In the events which took place, that appears to have been forgotten altogether by him. Certainly, there is no convincing evidence that he exercised the moral responsibility expected of an officer of his status. And his attempt before the Tribunal to explain away his conduct does not improve that impression. It is difficult to believe that he did not actively and deliberately pursue the affection and Influence that conduct, of that unfortunate misguided woman who ultimately decided to throw in her lot with him. Yet we find that even after her tragic end, in the attempt to absolve himself he consistently attributed all motivation to her.
14. In the circumstances, I see no justification for awarding costs to the respondent.
15. The appeal is dismissed, but there is no order as to costs.
16. The respondent is a police officer. He was confirmed as Deputy Superintendent of Police inDecember, 1962. In the year 1955, he hadan affair with the wife of a Munsif, SriS. K. Joshi. She left her husband's housealong with her three children and cameto stay at the house of the respondent'sfather at Allahabad, where on October 11.1955 she got burnt while lightening astove and as a result of the injuries received, she died in the hospital.
17. The Government after preliminary enquiry against the respondent handed over the case to the Uttar Pradesh Administrative Tribunal. The Tribunal issued a charge-sheet and eventually found the respondent guilty of two charges: (1) that he was guilty of personal immorality and (2) that he had failed to discharge his duties properly. The Tribunal recommended the respondent's dismissal and the respondent was ultimately dismissed from service on January 10, 1968. The petitioner filed a writ petition under Article 226 of the Constitution which has been allowed by a learned single Judge of this Court by his order and judgment dated May 2, 1969. The State of Uttar Pradesh has now preferred this special appeal.
18. Learned Standing Counsel has challenged the order of the learned single Judge on a preliminary ground as well as on the merits. The preliminary objection is that the writ petition giving rise to this appeal is barred by the principle of res judicata. It appears that the petitioner had earlier filed a writ petition being writ petition No. 692 of 1959 at the stage when the Administrative Tribunal had conveyed its findings and recommendations. This writ petition was allowed by a learned single Judge of this Court on 12-7-1960 (reported in AIR 1960 All 754) on the ground that the Tribunal did not make out either an offence of personal immorality as defined in the U.P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 or of failure to discharge his duties properly and as such the Government had no jurisdiction to refer the matter to the Administrative Tribunal. The learned single Judge held that the report and the recommendation of the Tribunal were without jurisdiction. The Government went up in special appeal (being special appeal No. 473 of 1960). A Division Bench allowed that appeal on 12-10-1962. It held that the recommendations and findings of the Tribunal were not vitiated by any error which could be held to be patent on the face of the record so as to justify interference under Article 226 of the Constitution. The respondent then filed an appeal to the Supreme Court being Civil Appeal No. 513 of 1964 and on 18-8-965 the Supreme Court allowed the appeal to be withdrawn with liberty to file a fresh petition after the proceedings were finally terminated.
19. After having heard learned counsel for the parties, I am satisfied that there is no force in the preliminary objection. In the first place the second petition cannot be said to arise out of the same set of facts. The first writ petition was filed at an intermediary stage of the proceedings. The second writ petition was filed after the termination order had been passed. Secondly, the Supreme Court had specifically permitted, the respondent to file a fresh writ petition after the termination of the proceedings. That order of the Supreme Court is binding on the parties as well as on this Court and it is not open now to contend that this Court should not have entertained the second writ petition.
20. Coming now to the merits, action was taken against the respondent under Rule 4 of the U.P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947. Rule 4 runs as follows:
'4(1). The Governor may refer to the Tribunal cases relating to an individual Government servant or class of Government servants or government servants in a particular area only in respect of matters involving.
(b) Failure to discharge duties properly;
(c) Irremediable general inefficiency in a public servant of more than ten years standing; and
(d) personal immorality.
(2) The Governor may, in respect of a gazetted government servant on his own request refer his case to the Tribunal in respect of matters referred to in Sub-rule (1).'
Rule 2(e) defines 'personal immorality' for the purpose of Rule 4 as follows:
'2(e). 'Personal immorality' means vicious habits relating to drink, sex and gambling which reduce the utility of a public servant so as to damage government or the official generally in public esteem.'
Clause (d) of Rule 2 defines 'failure to discharge duties properly' to include such acts and omissions on the part of a government servant as are likely to weaken the position and prestige of the government of the Indian Union or the Government of Uttar Pradesh or which indicate an absence of loyalty and devotion to the Union of India or any feeling of loyalty towards any State outside the Indian Union.'
21. At this stage it would be appropriate to set out briefly the facts giving rise to the disciplinary proceedings and to the ultimate dismissal of the respondent.
22. It appears that the respondent had picked up friendship, during his college days, with a girl named Kumudini Pande. The respondent and Miss Pande wanted to get married but their parents did not agree. Miss Pande was married to one S. K. Joshi and likewise the respondent himself got married to some other woman. That was above 15 years back. On August 20, 1955 Kumudini Pande, who was now Mrs. Joshi and had three children came to Mirzapur where the respondent was posted and stayed with him. From there they went to Lucknow and Varanasi where they stayed for a few days. Finally, Mrs. Joshi along with her children came to Allahabad and stayed at the house of the respondent's father. There she filed a suit under Section 10 of the Hindu Marriage Act for the dissolution of her marriage with Mr. Joshi and on October 11, 1955 she met with an accident as a result of which she ultimately died.
23. The Government came to know of this episode and after instituting a confidential enquiry handed over the matter to the U.P. Administrative Tribunal. The Tribunal issued a charge-sheet to the respondent containing the following charges.
Charge No. 1:
You Sri B. N. Singh, Dy. Superintendent of Police are hereby charged with personal immorality under Rule 4(1)(d) of the U.P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 in respect of the period when you were posted as Dy. Superintendent of Police, Mirzapur and Pauri Garhwal during the year 1955 as evidenced by the following:
(a) You rented a house adjacent to the house of Srimati K. Joshi at Almora under the name of your brother for May and June, 1955 and lived there for immoral purposes after obtaining leave on misrepresentation of facts.
(b) You manoeuvred the elopement of Smt. K. Joshi for immoral purposes from her husband's residence at Faizabad on 20-8-1955 and kept her at Mirzapur, Varanasi, Allahabad and Lucknow etc.
(c) You admitted to Sri S. K. Joshi Munsif husband of Smt. K. Joshi of your love affair with her and also her stay with you at Mirzapur.
(d) You persuaded Smt. Joshi to file an application in the court of the City Munsif Allahabad for the dissolution of her marriage with Sri S. K. Joshi.
(e) You were carrying on a love affair with Smt. K. Joshi wife of Sri S. K. Joshi Munsif then posted at Faizabad and had sexual relations with her.
(f) You kept Smt. K. Joshi concealed for the same purpose at several places until she was admitted in the hospital at Allahabad along with you with severe burns on 11-10-1955 where she subsequently died.
Charge No. 2:
You are further charged with failure to discharge your duties properly under Rule 4 (1)(b) of the U.P. Disciplinary Proceedings (Administrative Tribunal) Rules. 1947 in respect of the period when you were posted as Dy. Superintendent of Police, Mirzapur and Pauri Garhwal in 1955 as is evidenced by the following:
(a) You obtained earned leave for 35 days from 21-5-1955 by misrepresenting fact, for immoral purposes.
(b) You deliberately avoided disclosure of the whereabouts of Smt. K. Joshi to the I. G. P. and D. I. G. C. I. D., U.P. although you knew where she was at that time.'
The Tribunal found that in relation to charge No. 1 the incidents mentioned in Clauses (b), (c), (e) and (f) were proved while those mentioned in other clauses, namely, (a) and (d) were not established. Similarly in relation to charge No. 2 the Tribunal found that allegations mentioned in Clause (b) had been proved but the allegation in Clause (a) had not been proved. The Tribunal, however, considered that on the allegations proved against the respondent, he was guilty of both the charges, namely, of personal immorality as well as of failure to discharge his duties properly.
24. Dealing with the first charge, the Tribunal, in short, has found that the respondent had a love affair with Mrs. Joshi. He manoeuvred her elopement from the house of her husband and had sexual relations with her. There can be no manner of doubt that what the respondent did was highly immoral. The fact that he had an attachment with Mrs. Joshi prior to her marriage affords no justification whatsoever for the respondent to have manoeuvred her elopement and to have indulged in sexual intercourse with her. What he did in 1955 cannot by any stretch of imagination be called the revival of old love between him and Mrs. Joshi. It is clear that what the respondent did was not a manifestation of his love but the gratification of sexual lust. Had there been a true love between the respondent and his one-time girl friend he would not have broken her home and ruined her domestic life. He should have realised that because of the changed circumstances, it was no longer possible for him to consummate his love with a lady who had now been married away to a different man and was the mother of three children and he himself was a married man and had children of his own. I have, therefore, no doubt in my mind that the conduct of the respondent was grossly immoral and even criminal.
25. But the question that arises here is as to whether the conduct of the respondent comes within the mischief of Rule 4 of the U.P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947. 'Personal immorality' has been defined in the rule so that it is not possible to interpret that phrase according to its popular meaning. 'Personal immorality' according to its definition as given in rule 2(e) means 'vicious habits relating to drink, sex and gambling which reduce the utility of a public servant so as to damage government or the official generally in public esteem'. Before a public servant can be charged of personal immorality under Rule 4, two things have to be established: (1) that he has a vicious habit relating to drink, sex and gambling and (2) that such habit has reduced the utility of the public servant so as to damage the government or the official generally in public esteem.
26. The word 'habit' is a word of every day use and its meaning is well understood. Stray and isolated acts do not constitute a habit which denotes the settled disposition or tendency to act in a certain way acquired by frequent repetition of the same act. Habits are of different kinds. Some may be good habits, others may be innocuous and harmless and still others that can be classed as vicious habits. The word 'vicious' is an adjective of the noun Vice' which according to the Shorter Oxford English Dictionary. Second edition, means '(i) depravity, or corruption of morals: evil immoral or wicked habits or conduct, indulegence in degrading pleasures or practices, (ii) a habit or practice of an immoral, degrading or wicked nature.'
27. Now, there can be no manner of doubt that drinking, gambling and indulgence in sex are vices in popular sense but according to the western civilization and culture such vices particularly drinking and gambling within moderate limits are considered to be a part of the normal entertainment and pastime. A section of higher strata of our society has adopted the western way of living and thinking and it is not uncommon to come across government servants who prefer to move in social circles of this class of society where drinking and gambling within reasonable limits is not looked down upon.
The framers of U.P Disciplinary Proceedings (Administrative Tribunal), Rules 1947 were conscious of this state of affairs and that is why the definition of 'personal immorality' was so worded so as to exclude from disciplinary proceedings government servants who move in such society and may be guilty of occasional lapses of the three vices mentioned therein. But when these vices take the shape of habit, they can be classed as vicious and come within the definition of 'personal immorality' for the purposes of Rule 4. The distinction between a simple and vicious habit of this nature drawn by the learned single Judge does not appear to be real so far as it relates to the habits relating to drink, sex and gambling because such habits are by their very nature vicious. I also find it difficult to agree with the learned single Judge that all the three kinds of habits, namely, drink, sex and gambling must co-exist before a person can be charged of personal immorality. In my opinion, each of such habits Is enough to constitute personal immorality.
28. Now, coming back to the facts of the present case, there is no charge against the respondent of having acquired the vicious habit of drinking and gambling. The charge only relates to sex. The question arises, as to whether the respondent had acquired a vicious habit of sex and as a result of that habit his utility as a public servant had been reduced so as to damage government or the respondent generally in public esteem. I, again find it difficult to agree with the learned single Judge that there must be more than one woman involved before a habit of sex can be established. It is possible that a man may have a habit of indulging in sex with one woman in the sense that he constantly visits her for immoral purposes.
29. On the facts of this particular case it is not possible to hold that respondent had the vicious habit of sex. He had indulged in sex with Mrs. Joshi not because of his habitual propensity in that regard but because of the background of an old and frustrated friendship between him and Mrs. Joshi. It is true that the episode lasted for quite a few months and the respondent must have indulged in sexual intercourse with Mrs. Joshi more than once but all these acts constitute a series in a single episode in the respondent's life. And then, Mrs. Joshi was not a woman of ill repute whom the respondent had been visiting over a period of several months.
30. Assuming that some sort of habit of sex could be attributed to the respondent on the facts of the case, the more important question is as to whether this habit of the respondent had reduced his utility as a public servant, so as to damage government or official generally in public esteem. Normally, the habit of sex, gambling or drinking, does adversely affect the man's health and capacity to work. Such a person as a result of his addiction loses interest in work and his efficiency goes down. There is no finding that the utility of the respondent had been reduced in that sense nor indeed is there any finding that the respondent's affair with Mrs. Joshi became a public scandal so as to damage the prestige of the government or of the respondent generally in public esteem.
There is no doubt that one of the allegations proved against the respondent is that he divulged his secret to Mr. Joshi but that only added, injury to the insult so far as Mr. Joshi was concerned. It could not be expected, nor indeed is there any suggestion in that regard, that Mr. Joshi gave any publicity to this affair. Having regard to the normal human conduct Mr. Joshi must have tried to keep this thing as secret as possible so as to save himself of the humiliation, which he had suffered at the hands of the respondent as well as his own wife. I am therefore, in respectful agreement with the opinion expressed by the learned single Judge that the incidents which have been proved against the respondent do not constitute personal immorality for purposes of Rule 4.
31. Coming now to the second charge, the finding is that his superior officers informally enquired from the respondent about the whereabouts of Mrs. Joshi but the respondent did not give the required information although such information was in his possession. Under Sections 22 and 23 of the Police Act it is the duty of a police officer to obey promptly and execute all orders and warrants lawfully issued to him by any competent authority, to collect and communicate intelligence affecting the public peace, to prevent the commission of offences and public nuisances; to detect and bring offenders to justice and to apprehend all persons whom he is legally authorised to apprehend etc. It is admitted in the instant case that no specific order or warrant within the meaning of Section 23 of the Police Act had been issued to the respondent which he may have disregarded.
It also cannot be said that he refused to answer a question put to him by an investigating officer as required by Section 161, Cr. P. C. None of the officers who made enquiries from the respondent about the whereabouts of Mrs. Joshi, was an Enquiry Officer. Moreover a person is not bound to answer questions which may incriminate him. There was thus legal justification for the respondent to have omitted to divulge the information although there was no moral justification for such a conduct on the part of the respondent. The charge of failure to do his duties properly against a public servant must refer to the duties which he is obliged to perform under the law. Moral considerations cannot be imported.
32. For the reasons stated above, I am satisfied that neither the charge of personal immorality nor that of the failure to discharge his duties properly has been made out against the respondent.
33. Now, returning to Rule 4 (1) it is apparent that the Governor can refer the cases under that rule only in respect of matters involving the four charges enumerated therein. If on the findings the respondent was not guilty of personal immorality or of failure to discharge his duties, the Governor had no jurisdiction to refer the matter to the Tribunal even though action could have been taken against the respondent under any other law or rules. The impugned order of dismissal based as it is on Rule 4 is accordingly without jurisdiction. That being the position the argument of the learned counsel that the writ petition should not have been entertained by the learned single Judge loses all force.
There is no doubt that the question involved in the present case is difficult one and is not covered by any reported decision cited at the Bar. But since the question, in my opinion, is one of jurisdiction, it falls squarely within the jurisdiction of this Court under Article 226 of the Constitution. I have not appraised the evidence afresh and in fact I have proceeded upon the findings of facts recorded by the Tribunal and upon those findings I have come to the conclusion that the impugned order of dismissal does not fall within the mischief of Rule 4 and, therefore, is without jurisdiction. It cannot, therefore, be said that merely because the answer to the question involved a long drawn debate, the same should not have been entertained by the learned single Judge under Article 226 of the Constitution.
34. I accordingly dismiss this appeal but in the circumstances of the case make no order as to costs.
By The Court
35. For the reasons contained in our respective judgments, we dismiss this Special Appeal but make no order as to costs.