Parties Would Be Put In 'Embarrassing Position' Not Ground To Dispense Departmental Inquiry: Gujarat High Court

The Gujarat High Court has recently affirmed that in dispensing with departmental inquiry, the authority must arrive at a satisfaction that it is not reasonably practicable to follow the procedure and it must record reason to show that such satisfaction is arrived at on objective facts and not on whims and caprice.Further, Justice Sangeeta Vishen observed that parties concerned will be put in an embarrassing position cannot be a ground to dispense with the inquiry.The observation is significant as in the instant case, the authority concerned had recorded in writing that it is not reasonably practicable to hold the inquiry and the only reason which was assigned was that the conduct of the inquiry will put the parties in an embarrassing position.The Court observed,"in the present case, except recording that the conduct of inquiry is likely to create an embarrassing position, nothing has been recorded either in the order or have been placed on record of the Court to substantiate that the reasons were recorded by arriving at a satisfaction on objective facts. Therefore, such observation by the authority is nothing but an empty formality."The development ensued in a writ petition filed under Article 226 of the Constitution, seeking quashing of orders terminating the Petitioner's service as armed police constable on count of misconduct and directing him to vacate the police quarters. It was alleged that the Petitioner, being a married man, had developed relations with a widow, who was also residing within the police quarters, thereby bringing disrepute to the police department. Thereafter, the Petitioner was issued a show-cause notice which stated that considering the incident in question, it is likely that during the inquiry proceedings, embarrassing position may arise and therefore, it would not be proper to conduct the inquiry under the Rules.The petitioner argued that departmental inquiry must be in accordance with Gujarat Civil Services (Discipline and Appeal) Rules, 1971 and only then can any penalty be imposed on him. He confirmed that the had not taken advantage of the widow. He emphasized that the relationship was entirely mutual and consensual. Reliance was placed on Mahesh Chand Sharma vs State of Rajasthan where it was held that human dignity, personal autonomy of a government servant to have partners of his/her choice is integral and it could not be subjected to departmental proceedings. Per the Petitioner, his termination was unauthorized use of power since in Jaswant Singh Nerwal vs. State of Punjab & Ors, the Apex Court had agreed that merely referring to "subjecting the parties to embarrassing position", will not absolve the authorities from conducting the inquiry more particularly, when the major penalty has been inflicted upon the petitioner dismissing him from service.The Respondent, per contra, relied on Prabhatsinh Samatsinh vs. District Superintendent of Police & Anr 2009 (3) GLR 2499, wherein it was held that 'misconduct' could include multi-faceted actions of Government servants which were "unbecoming". In the instant case, the Petitioner was engaged in an illicit relationship with the widow. Therefore, there was no need of a full-fledged departmental inquiry per the Conduct Rules, and he was not entitled to any relief. Further per Art 311(2), discretion was vested in the authorities to take necessary action keeping in view various circumstances. Judgement The Court identified the prime indictment against the Petitioner as exploitation of a widow and moral turpitude. It was averred by the Bench that the mutual consent of the widow confirmed that the act was voluntary between two adults, but the question was if it fell within the ambit of 'misconduct' as per the Rules. To address this, Justice Vishen referred to Bodu Tarmamad vs. Dist. Suptd. Of Police, Jamnagar & Anr wherein it was held that the Petitioner had not committed any misconduct 'unbecoming of a government servant' where he had sexual intercourse with a major woman. His activities had not interfered with the discharge of his duties, per the Apex Court. Justice Vishen observed that a "common thread" was running through all past precedents that if the conduct interfered or tended to interfere directly or indirectly in discharge of duties, only then it would amount to misconduct that was unbecoming of a government servant. As regards the issue of departmental inquiry, the Bench referred to Sant Lal Gupta v. Modern Coop. Group Housing Society Ltd [(2010) 13 SCC 336] where the Apex Court had urged that authorities were expected to furnish detailed reasons to arrive at objective facts and conclusions, particularly, when the career of the Petitioner is involved. In the instant case, Justice Vishen opined that the authorities should have recorded the reasons even if the departmental inquiry was dispensed with, but they did not do so. Accordingly, the Bench set aside...

Parties Would Be Put In 'Embarrassing Position' Not Ground To Dispense Departmental Inquiry: Gujarat High Court

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