- (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: (a) Both the petitioners are Hindus. (b) The petitioner of SCA No.12020 of 2004 had lawfully married wife alive at the time of birth of both the children and even prior that to. The said petitioner has preferred HMP No.148/1997 in the Court of Civil Judge (S.D.), Surat and no decision is given by any Competent Court for divorce. The name of lawfully wedded wife is Minaxiben V. Tailor. (c) The petitioner of SCA No.12022 of 2004 had lawfully married with Prakashkumar Natubhai Lad on 18.6.1993 and the husband of the petitioiner expired. The petitioner applied for appointment as Balaguru in her capacity as widow and she was appointed on 5.9.1997. Thereafter, the petitioner also applied as Vidhya Sahayak/Teacher and on 18.12.1998 and the petitioner was appointed as Vidhya Sahayak. (d) The first child was born on 6.4.1998 and the second child was born on 30.2.2000 out of the relations by both the petitioners. (e) The birth of the children and the relations were admitted even during the course of the departmental inquiry. (f) The only defence was that the HMP petition is pending in the Court and no marriage is solemnised between both the petitioners, nor any contract of marriage was executed between both the petitioners. However, the pertinent aspect is that neither the relations, nor the birth of the children on account of the relations by both the petitioners are denied and they are admitted. (g) On the same facts, so far as the petitioner of SCA No.12020 of 2004, the punishment imposed by the disciplinary authority is of withholding of only one increment though the finding was that the misconduct is proved. So far as the petitioner of SCA No.12022 of 2004 is concerned, the disciplinary authority namely District Primary Education Officer, as per the order dated 5.7.2004 having found that the misconduct is proved has imposed penalty of dismissal from service. It is under these circumstances both the petitioners have approached this Court by preferring this petition. As such, in my view, the issues are covered by the decision of this Court in case of K.V.Bhundia v. State of Gujarat, reported in 2003(3) GCD, 2118 (Guj.) wherein, while considering the question as to whether such a conduct on the part of a government servant, who is Hindu having illicit relation with another lady during the life time of lawfully wedded wife can be said as unbecoming of a public servant, this Court observed at para 7 as under:
(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:;