MUSTUFAKHAN GULABKHAN PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The judgement and the decree passed by the learned Judge of Court No. 11 of the City Civil Court at Ahmedabad on 31st July 1987 in Civil Suit No. 319 of 1983 are under challenge in this First Appeal at the instance of the original plaintiff. It is needless to say that thereby the suit came to be dismissed.

(2.) The appellant herein was subjected to some departmental enquiry with respect to his having spent two nights on two different dates in September 1971 with one Hansa @ Harshadbala @ Hasina though they were not united by a matrimonial tie. It was also the case against him that he was on sick leave during the relevant period, and yet he showed in the register of the Pathikashram as on duty. The charge against him was also to the effect that at the time of the fust night-halt at the Pathikashram in Gandhinagar he did not pay the requisite charges but he paid up the said charges at the time of his second visit thereto. His defence was not accepted in the departmental enquiry. He was punished with the order of removal. That order was set aside in Civil Suit No. 2527 of 1978 by the City Civil Court at Ahmedabad and that decision was affirmed in appeal before this Court in First Appeal No. 1162 of 1980. The order of his removal from service was upset on the ground that the punishing authority was not his appointing authority and the Court permitted the department to proceed further from the stage of what is popularly known as the second show-cause notice. After considering his representation to the second show-cause notice, respondent no. 2 herein passed the order of removal of the appellant from service on 1st October 1981 (the impugned order' for convenience). The appellant's appeal and revision against the impugned order proved fruitless. He therefore instituted one Civil Suit in the City Civil Court at Ahmedabad questioning the correctness of the impugned order. It came to be registered as Civil Suit No. 319 of 1983. The suit appears to have been assigned to the learned Judge of Court No. 11 of the City Civil Court at Ahmedabad for trial and disposal. The respondents herein as the defendants filed their written statement at Exh. 22 on the record of the case and resisted the suit on various grounds. On the pleadings of the parties, the necessary issues were raised at Exh. 23 on the record of the case. After recording the evidence and hearing the parties, the learned Judge of Court No. 11 of the City Civil Court passed the judgement and the decree on 31st July 1987 in Civil Suit No. 319 of 1983 dismissing the suit. The aggrieved plaintiff has thereupon invoked the appellate jurisdiction of this Court by means of this First Appeal under Section 96 of the Code of Civil Procedure, 1908.

(3.) The gravamen of the charge against the present appellant was that he had illicit relations with the lady, named, Hansa @ Harshdbala @ Hasina. It is an admitted position that they were not a married couple. At the most the lady could be styled as a mistress. Whether or not to keep a mistress is a misconduct was the question. In this connection a reference deserves to be made to the unreported ruling of this Court in Special Civil Application No. 221 of 1983 decided on 24th September 1985. It has been held therein that the Conduct Rules of the Police Department from the Police Manual do not show that to have a mistress is a misconduct. This unreported ruling was in fact cited before the learned trial Judge. With respect, it was not proper for the learned trial Judge to have distinguished it on some flimsy and untenable grounds without properly appreciating the ratio laid down therein. The learned trial Judge ought to have carefully considered the aforesaid unreported ruling and to have considered its applicability to the facts of the case. The learned trial Judge was unnecessarily obsessed with the idea that illicit relations between a man and a woman, not united by matrimonial tie, would not mean that she was his mistress. The learned trial Judge ought to have consulted the dictionary for the purpose of ascertaining the correct meaning of the word 'mistress'. In the Concise Oxford Dictionary published by Oxford University Press (3rd Impression 1992) the word 'mistress' is defined inter alia to mean ' a woman (other than his wife) with whom a married man has a sexual relation'. Considering this dictionary meaning of the word 'mistress', there is no escape from, the conclusion that the lady accompanying the appellant at the relevant time would be his mistress. In that view of the matter, the aforesaid unreported ruling of this Court in Special Civil Application No. 221 of 1983 decided on 24th September 1985 will on all fours be applicable in the present case. The charge of misconduct on that ground cannot be said to have been proved against the present appellant.