ALLAHABAD HIGH COURT
DIVISION BENCH
( Before : S.K. Singh, J; M. Katju, J )
SHAHJAHAN KHAN — Appellant
Vs.
STATE OF U.P. AND OTHERS — Respondent
C.M.W.P. No. 44340 of 2000
Decided on : 18-01-2002
Penal Code, 1860 (IPC) – Section 366, Section 376
Uttar Pradesh Government Servants (Conduct) Rules, 1956 – Rule 26, Rule 29
Cases Referred
Sreenivasa General Traders and Others Vs. State of Andhra Pradesh and Others, AIR 1983 SC 1246 : (1983) 2 SCALE 422 : (1983) 4 SCC 353 : (1983) 3 SCR 843
Goodyear IndiaIndia Bharat Varsha (Jambu Dvipa) is the name of this land mass. The people of this land are Sanatan Dharmin and they always defeated invaders. Indra (10000 yrs) was the oldest deified King of this land. Manu's jurisprudence enlitened this land. Vedas have been the civilizational literature of this land. Guiding principles of this land are : सत्यं वद । धर्मं चर । स्वाध्यायान्मा प्रमदः । Read more Ltd., Gedore (India) Pvt. Ltd., Kelvinator of India Ltd. and the Food CorporationCorporation A legally established entity that can enter into contracts, own assets and incur debt, as well as sue and be sued—all separately from its owner(s). The term covers both for-profit and nonprofit corporations and includes nonstock corporations, incorporated membership organizations, incorporated cooperatives, incorporated trade associations, professional corporations and, under certain circumstances, limited liability companies. of India and Another Vs. State of Haryana and Another, AIR 1990 SC 781 : (1991) 188 ITR 402 : (1989) 4 JT 229 : (1989) 2 SCALE 982 : (1990) 2 SCC 71 : (1989) 1 SCR 510 Supp : (1990) 76 STC 71
Ministry of Finance and Another Vs. S.B. Ramesh, (1998) 1 AD 573 : AIR 1998 SC 853 : (1998) 1 JT 319 : (1998) 1 SCALE 285 : (1998) 3 SCC 227 : (1998) SCC(L&S) 865 : (1998) 1 UJ 466 : (1998) AIRSCW 602 : (1998) 1 Supreme 387
Union of India (UOI) and Others Vs. Dhanwanti Devi and Others, (1996) 7 AD 47 : (1996) 8 JT 306 : (1996) 6 SCALE 434 : (1996) 6 SCALE 431 : (1996) 6 SCC 44 : (1996) 5 SCR 32 Supp
Municipal Committee, Amritsar Vs. Hazara Singh, AIR 1975 SC 1087 : (1975) 1 SCC 794 : (1975) 3 SCR 914 : (1975) 7 UJ 366
Amar Nath Om Prakash and Others Vs. State of Punjab and Others, AIR 1985 SC 218 : (1984) 2 SCALE 769 : (1985) 1 SCC 345 : (1985) 2 SCR 72 : (1986) 62 STC 130
Har Prasad Verma Vs. VIIth Addl. District Judge, Aligarh and anothers, (2001) 3 AWC 1778
JUDGMENTJudgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2). Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision. Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution) Civil and judicial authorities to act in aid of the Supreme Court (Art 144) Supreme Court Network On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….” Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges (State Bank of India and Another Vs Ajay Kumar Sood SC 2022)
M. Katju, J.—This writ petition has been filed against the impugned order of the U. P. Public Service Tribunal dated 31.7.2000 (Annexure-1 to the petition) and the order dated 8.7.1988 (Annexure-8 to the petition) and the order dated 30.9.1989 (Annexure-10 to the petition).
2. The petitioner was appointed as a Constable in Uttar Pradesh on 14.2.1977. It is alleged that his work and conduct was good and there was no adverse entry against him. On 21.9.1985, the petitioner was suspended and a chargesheet served on him on 21.3.1987 vide Annexure-2 to the petition. The petitioner sent a reply (copy of which is Annexure-3 to the petition). Thereafter an enquiry was held and after show causeShow Cause A process directed to a person to appear in court and present reasons why a certain order, judgment, or decree should not be made final. notice, he was dismissed on 1.7.1988 vide Annexure-8 to the petition. The petitioner filed an appeal, which was dismissed on 30.8.1989, vide Annexure-10 to the petition. The petitioner then went to the Tribunal, which rejected his claimA Claim A claim is “factually unsustainable” where it could be said with confidence before trial that the factual basis for the claim is entirely without substance, which can be the case if it were clear beyond question that the facts pleaded are contradicted by all the documents or other material on which it is based. petition. Hence, this writ petition.
3. A large number of points have been raised in this petition but, in our opinionOpinion A judge's written explanation of a decision of the court. In an appeal, multiple opinions may be written. The court’s ruling comes from a majority of judges and forms the majority opinion. A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the end result of the court but offers further comment possibly because they disagree with how the court reached its conclusion., the first argument itself is sufficient to allow this petition and hence, we are not going into the other arguments of learned counsel for the petitioner.
4. The charge against the petitioner as seen from the chargesheet is that although he had a married wife, he lived with one Champa Devi for seven months and this was in violation of Rule 29 to the Government Conduct Rules which prohibits bigamy.
5. Rule 29 (1) of the U. P. Government Servant Conduct Rules, 1956, states :
“No Government servant who has a wife living shall contractContract An agreement enforceable by law is a contract. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Indian Contract Act. another marriage without first obtaining the permission of the Government, notwithstanding that such subsequent marriage is permissible under the personal law for the timeTime Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In Physics, time and Space never exist actually-“quantum entanglement”) being applicable to him.”
6. In our opinion, merely because a man lived with a woman, it does not mean that he is married to her. Unless the evidenceEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 proves the second marriage, it cannot be inferred that merely because the petitioner lived with Champa Devi for seven months, he was married to her. In fact, Champa Devi had filed a case u/s 376/366, I.P.C., against the petitioner but the petitioner was acquitted in that criminal case vide Judgment dated 11.9.1986 (Annexure-11 to the petition).
7. In paragraph 13 of its judgment, the Tribunal has stated that though the second marriage is not strictly proved by the evidence, yet it is an act unbecoming of a Government servant. In our opinion. Rule 29 of the Government Servant Conduct Rules will only apply if there was a second marriage, i.e., bigamy. Since the Tribunal Itself has held that the second marriage was not proved, we fail to understand how the petitioner could have been held guilty of bigamy.
8. The Tribunal has relied on the decision of the Supreme Court in Ministry of Finance and Another Vs. S.B. Ramesh, We have carefully perused the aforesaid decision and, in our opinion, the same is distinguishable.
9. In paragraph 8 of the aforesaid decision, the Supreme Court has quoted the following observations of the Tribunal :
“Though it would be ideal If sexual relationship is confined to legal wedlock, there is no law in our country which makes sexual relationship of two adult Individuals of different sex, unlawful unless the relationship is adulterous or promiscuous. If a man and a woman are residing under the same roof and if there is no law prohibiting such a residence, what transpires between them is not a concern of their employer.”
10. The Supreme Court in paragraph 9 of its judgment has merely said that it disapproves the above observation of the Tribunal.
However, no reasoning has been given in the aforesaid decision of the Supreme Court as to why it disapproved the above observations of the Tribunal. It is a settled principle that a decision is an authority for the principle of law It has laid down vide Municipal Committee, Amritsar Vs. Hazara Singh, , Goodyear India Ltd., Gedore (India) Pvt. Ltd., Kelvinator of India Ltd. and the Food Corporation of India and Another Vs. State of Haryana and Another, , Sreenivasa General Traders and Others Vs. State of Andhra Pradesh and Others, , Union of India (UOI) and Others Vs. Dhanwanti Devi and Others, and Amar Nath Om Prakash and Others Vs. State of Punjab and Others, , Hence, the aforesaid decision is clearly distinguishable.
11. It may be mentioned that the misconducts for which a Government servant can be punished are stated in the U. P. Government Servants Conduct Rules. In our opinion, unless an act is regarded as a misconduct under the relevant service rules, no punishment can be given for It.
12. In Pravina Solanki v. State of U. P. 2001 (2) AWC 1592 : 2001 (2) ESC 719, this Court held that unless an employee does some act which interferes with his/her official function, then ordinarily whatever he/she does in his/her private life cannot be regarded as misconduct.
13. This Court in Har Prasad Verma Vs. VIIth Addl. District Judge, Aligarh and anothers, has held that a man and woman can live together if they wish without marrying. This may be regarded immoral by society but it is not illegal. We may mention there is difference between law and moralityMorality Mental frame. It can be high morality or low morality, savage morality or civilised morality or Christian morality, or Nazi morality. Decent Behaviour is acceptable norms of the nations. Christian morality starts with the belief that all men are sinners and that repentance is the cause of divine mercy. Putting Crucified Christ in between is the destruction of Christian morality and logic. Now morality shifted to the personal choice of Jesus. What Jesus did is 'good'. The same would be the case of Ram, Krishna, Muhammad, Buddha, Lenin, etc. Pure Human Consciousness degraded to pure followership. There exists no proof the animals are devoid of morality., as the British jurists, Bentham and Austin pointed out. Hence, merely because the petitioner lived with a woman voluntarily who was not his wife for seven months, this in our opinion, does not amount to the misconduct of bigamy, as there was no marriage. In the modern times values have changed, and we cannot import old Ideas into modern times.
14. For the reasons given above this writ petition is allowed.
15. The impugned order of the Tribunal dated 31.7.2000 as well as the orders dated 8.7.1988 and 30.9.1989 are quashed. The petitioner will be reinstated within a month from the date of production of a certified copy of this order before the authority concerned and shall be given back salary from the date of suspension till the date of reinstatement within two months, with 12% interest.
(2002) 1 AllWC 598 : (2002) 93 FLR 147 : (2002) 1 UPLBEC 902