SUDHABEN KANUBHAI PRAJAPATI Vs. DISTRICT PANCHAYAT

JUDGEMENT

(1.) As both the petitions are inter-connected and in both the petitions more or less common facts are involved, common questions arise for consideration and, therefore, they are being considered by this common judgement. The petitioner of Special Civil Application No.12020 of 2004 is a teacher who has been inflicted punishment in the departmental proceedings of withholding of one increment for the misconduct of having illicit relations with another lady, who is widow, and also the petitioner of Special Civil Application No.12022 of 2004 namely; Sudhaben K Prajapati. The allegation was not only of having illicit relation, but the charges proved are that the petitioner had lawfully married wife and without there being divorce with the previous wife, he has kept relation with another lady and two children are born out of the said relation. So far as the petitioner of SCA No.12022 of 2004 is concerned, she was working as Vidhya Sahayak and the charges in the disciplinary proceeding inquiry were the same. The additional charge was that the petitioner procured the benefit in service as widow, though she had kept the marital relation with one Manibhai Keshavbhai Lad, who is the petitioner of SCA No.12020 of 2004 and two children are born out of the said relation. There was also charge against both the petitioners that without obtaining permission of the Competent Authority the agreement for marriage is undertaken by both the petitioners. Heard Mr.Majmudar, learned Counsel for the petitioners in both the petitions and Mr.Barot for Mr.Munshaw, learned Counsel for the District Panchayat. It appears that on the following aspects, there is no dispute in both the petitions:

(2.) Before I consider the submissions of Supehia on the question of examination of witness it is necessary to consider the alternative submission because Mr.Supehia has made strong efforts on the point that such an action can not amount to misconduct. It is true various conducts or norms which the public servant is required to observe while on duty may not be prescribed, but in my view for treating the action as unbecoming of a public servant the test would be whether it lowers down the image of a public servant in the society If the charges are deemed as proved, the net effect is that the petitioner is having illicit relation with lady Nalini and a daughter child is born out of such relation. In my view, when it is admitted position that the petitioner is a Hindu, the law expects a Hindu male member to maintain marital relation with lawfully wedded wife. So far as the society at large is concerned having relation or keeping relation as kept or having sexual relation with another lady is treated as illicit relation in the society. Had it been the case of staying together without their being any allegation of illicit relation or without their being any allegation of birth to a child matter would have been different. In the present case, the allegation is of illicit relation with a lady during the life time of a lawfully wedded wife, further with the allegation that a child is borne out of that relation. In any view, the fact that the child is borne out of the relation of the petitioner with the lady-Nalini itself is sufficient to presume sexual relation and therefore the same is also sufficient to come to conclusion that the petitioner is having illicit relation with lady Nalini. In any event holding of a post as a public servant in a society would stand on a higher pedestal than that of a common man. When such action indulged by the common man is known as immorality in society, it would reduce the value or image with some disgrace so far as the public servant is concerned. Therefore, in my view, the contention of Mr.Supehia that even if the charges are deemed as proved, it can not be said to be a misconduct can not be accepted and hence rejected. It may also be recorded that the matter is also covered by another decision of this Court in case of Bhikhudan A. Gadhavi v. Distt. Panchayat, reported in 2002(4) GCD, 83 (NOJ)(GUJ), wherein this Court had an occasion to consider the question of proportionality of the punishment in a case where it was proved that the Panchayat servant had illicit relation during the life time of lawfully wedded wife and begotten a child through her and this Court observed as under:

(3.) The record would indicate that the petitioner has admitted he was living with Ms.Haribalaben, though his first marriage was subsisting and that she had given birth to his child. Though the inquiry established charge different from one originally framed, the petitioner having admitted the fact constituting such charge, the Inquiry Officer was justified in recording said finding on the basis of which the disciplinary authority has taken the action. Further, the petitioner was given an opportunity of defending himself against the charge which was different from the one originally framed and which stands established. The petitioner has not pleaded nor shown that any prejudice was caused to him by the finding recorded by the Inquiry Officer to the effect that his conduct was unbecoming of a Panchayat servant. This aspect has been dealt with in detail by the Gujarat Civil Services Tribunal, Gandhinagar in its judgement on internal pages 17 and 18, with which this Court fully agrees. In view of what is observed hereinabove, the Court is of the opinion that the finding recorded by the disciplinary authority to the effect that the conduct of the petitioner was unbecoming of a Panchayat servant, which is affirmed by the appellate authority, i.e. The District Development Officer and the Gujarat Civil Services Tribunal, Gandhinagar, is eminently just and hereby upheld. It was further observed on the question of proportionality of the punishment as under: