DEVENDRA SINGH BISHT S/O SRI TRILOK SINGH, R/O VILLAGE-UJWALA, POST OFFICE-BHATKOLA, DISTRICT ALMORA Vs. UTTARANCHAL HIGH COURT THROUGH ITS REGISTRAR, NAINITAL AND DISTRICT JUDGE, PITHORAGARH

JUDGEMENT

(1.) THE appellant was posted as a Process Server in the District Court, Pithoragarh. At that time, it was alleged that he is having an adulterous relationship with one Smt. Tulsi Devi. This allegation was inquired by initiating a disciplinary proceeding against the appellant. That disciplinary proceeding resulted in punishing the appellant initially by a dismissal order passed by the disciplinary authority and later by an order passed by the appellate authority directing withholding of three increments with cumulative effect permanently. This order reached finality. The net effect of the said situation would be a finding of fact in course of a disciplinary proceeding that the appellant was living in adultery with Smt. Tulsi Devi.

(2.) ON 28th June, 1997, the then Civil Judge (Junior Division), Didihat, District Pithoragarh, by a letter, brought to the notice of the District Judge, Pithoragarh that the appellant has misbehaved in a drunken condition with people living in the vicinity of the residence of the appellant, and that, he is living in adultery with Smt. Tulsi Devi and that the appellant had allegedly held out to the said Civil Judge (Junior Division) that the appellant has taken a vow before the God not to leave Smt. Tulsi Devi. It was also reported in the said letter that the appellant has tattooed on his right forearm the name of Smt. Tulsi Devi. This letter was the basis of the second disciplinary proceeding initiated against the appellant. The second disciplinary proceeding was initiated by issuing a charge sheet dated 5th August, 1997. In the charge sheet, there were two charges. One was pertaining to misbehavior of the appellant with his neighbours in drunken condition, and the second charge was he is living in adultery with Smt. Tulsi Devi. The appellant gave a reply thereto and denied both the charges. In relation to the second charge, i.e. that the appellant is living in adultery with Smt. Tulsi Devi, appellant held out that he is not in adulterous relationship with either Smt. Tulsi Devi or any other lady. He indicated the names of four witnesses including Smt. Tulsi Devi as his witness in the disciplinary proceeding. Unfortunately, the selfsame Civil Judge (Junior Division), who wrote the letter dated 28th June, 1997 to the District Judge, was appointed the Inquiry Officer. The Inquiry Officer held that the first charge, namely, that the appellant misbehaved with his neighbours has not been established. He, however, held that the second charge that the appellant is living in adulterous relationship with Smt. Tulsi Devi stands proved. While doing so, the Inquiry Officer placed reliance principally on the evidence given by one Gopal Ram Gwal, who is allegedly the brother of the husband of Smt. Tulsi Devi. It would be appropriate to notice that Gopal Ram Gwal did not depose that Smt. Tulsi Devi is having adulterous relationship with the appellant; instead he deposed that Smt. Tulsi Devi is the wife of his brother, and that, he has no grievance that the appellant is keeping Smt. Tulsi Devi as his wife. It is important to note that there was no assertion on the part of Gopal Ram Gwal that Smt. Tulsi Devi is living in adulterous relationship with the appellant. On the other hand, the other witnesses, who deposed before the Inquiry Officer, categorically stated that there is no adulterous relationship in between Smt. Tulsi Devi and the appellant. After concluding the inquiry, the Inquiry Officer submitted his report. The District Judge, while considering the report of the Inquiry Officer, also took notice of the contents of the said letter dated 28th June, 1997, which was, however, no part of the inquiry. It is significant to note that in course of inquiry it was not put to the appellant that he had stated before the Civil Judge (Junior Division), Didihat that he would not be in a position to leave Smt. Tulsi Devi, for he has taken a vow before the God to keep her. At the same time, the inquiry report does not state that in course of inquiry it was established that the appellant has tattooed the name of Smt. Tulsi Devi on his right forearm. The disciplinary authority accepted the report of the Inquiry Officer to the effect that it has been established that the second charge stands proved. As aforesaid, the same was deduced on the basis of evidence given by Gopal Ram Gwal and the contents of the said letter dated 28th June, 1997. The disciplinary authority, accordingly, held the appellant guilty of living adulterous life with Smt. Tulsi Devi and noting that the appellant, despite having been punished for living adulterous life with Smt. Tulsi Devi, did not discontinue the same, dismissed the appellant while concluding the disciplinary proceedings. Appellant then filed a departmental appeal. That having been rejected by the appellate authority, he filed the writ petition. The writ petition, too, has been dismissed. While dismissing the writ petition, the writ Court did not go into the question, whether the charge stands proved, instead it applied its mind whether in the circumstances, i.e. if it is proved that the appellant was having adulterous relationship with Smt. Tulsi Devi, whether he could be punished for he having been punished on an earlier occasion on the same ground.

(3.) IN the circumstances, we are constrained to interfere and, accordingly, we set aside the order passed by the disciplinary authority as well as the appellate authority. We direct reinstatement of the appellant forthwith. He shall, however, not be entitled to back wages. However, the period, between the date of his dismissal until he would be taken back in service, would be treated as on service for all other purposes including pension. We direct the District Judge, Pithoragarh to forthwith transfer the appellant to District Court Pauri Garhwal with a direction upon District Judge, Pauri Garhwal to adjust him in a Class IV post of Process Server.