JUDGMENT Umeshwar Pandcy, J.
1. The petitioner, Sant Prasad Pandey, has challenged the impugned judgment and order of U. P. Public Services Tribunal (Annexure-1 to the writ petition) dated 5.9.1981 and order of the appellate authority (D.I.G.) dated 22.1.1979 (Annexure-3 to the writ petition) and the order of punishing authority, S.S.P., dated 23.12.1977 (Annexure-2 to the writ petition) and has prayed for quashing the same by issuing a writ of certiorari. He has also prayed for a direction in the nature of writ of mandamus to reinstate him in the service as constable in U. P. Civil Police.
2. As the brief facts of the case, disclosed in the petition, the petitioner while posted as civil police constable in District Lucknow, U.P., was placed under suspension vide order dated 22/27.4.1977 by respondent No. 4, S.S.P., Lucknow. The following three fold of charges were framed against him :
(1) That he was keeping one Sita Devi D/o Smt. Kamla Devi as his wife having illicit connection with her in the life time of legally wedded wife.
(2) That he was continuing on unauthorised absence since 9.4.1977 without obtaining any leave or permission.
(3) That in order to Justify his absence he gave a false application.
3. An officer of the rank of Deputy Superintendent of Police was appointed as Enquiry Officer and served the charges on the petitioner and required him to show cause. The petitioner submitted his reply to the charges to the Enquiry Officer on 23.5.1977 (Annexure-5 to the writ petition). Thereafter the Enquiry Officer, Rajveer Singh, completed the enquiry in accordance with procedure and submitted his report dated 2.8.1977 (Annexure-9 to the writ petition) to the punishing authority (S.S.P., Lucknow). The second show cause notice dated 22.10.1977 (Annexure-10 to the writ petition) was served upon the petitioner by respondent No. 4, to which he submitted his reply (Annexure-11 to the writ petition). Respondent No. 4 thereafter having considered the entire material on record, the facts and circumstances found that the objections raised in the reply of the petitioner against the enquiry report in the case had no basis and, therefore, the petitioner was again called upon to show cause vide Annexure-12 dated 6.11.1977, as to why the proposed punishment in pursuance to the enquiry should not be awarded against him. To this show cause notice, the petitioner submitted his reply (Annexure-13 to the writ petition) dated 15.11.1977. After considering this reply and the entire material available before him, the punishing authority, (respondent No. 4), passed the order of punishment dated 23.12.1977 (Annexure-2 to the writ petition) holding that since the charges aforesaid 2 and 3 had been fully established against him and charge No. 1 was also partially proved against him, he was liable for dismissal from the service. Against this order of punishment, the petitioner preferred an appeal before the Deputy Inspector General of Police, Lucknow, respondent No. 5, which too was dismissed vide impugned order dated 22.1.1979 (Annexure-3 to the writ petition). Thereafter the petitioner preferred a claim petition against the aforesaid two orders before respondent No. 1, U. P. State Public Services Tribunal and on getting no relief from there also, he had to approach this Court under Article 226 of the Constitution of India.
4. We have heard Sri Ravi Kiran Jain, senior advocate, assisted by Sri Ashish Kumar Singh on behalf of the petitioner and learned standing counsel, Sri Abhinav Upadhyay for the respondents.
5. Learned counsel for the petitioner has contended that there has been complete departure on the part of Enquiry Officer in so far as it relates to the following of the principle of natural justice. The learned counsel has emphasised that in the present case a preliminary enquiry was conducted against the petitioner by a Deputy Superintendent of Police, Sri Amar Singh. A report of that preliminary enquiry was submitted and on that basis the charges were framed against the petitioner. No copy of the report of the aforesaid preliminary enquiry was made available to the petitioner so as to facilitate his making effective defence in the case. In spite of the petitioner's specific requests to the Enquiry Officer Rajveer Singh, vide Annexure-5 to the writ petition, the report of the preliminary enquiry was not delivered nor the copies of the statements of the witnesses recorded in that enquiry were given to him. Instead, the Enquiry Officer directed the petitioner, vide his communication in Annexure-6 to the writ petition, to inspect the record of preliminary enquiry and note the relevant points for his defence. Referring to the provisions of Rule 489 (3) of the Police Regulations, Sri Jain has tried to carry us to the procedure prescribed therein and has given emphasis that the rule itself contemplates of a police investigation or an enquiry under paragraph 486 (iii) before a police officer is tried departmentally under Section 7 of the Police Act. This departmental enquiry which is preliminary in nature is contemplated under paragraph 486 (iii) of the Police Regulations. A report of such preliminary enquiry, thus, acquires considerable significance for the purposes of a departmental enquiry faced by a police personnel under Section 7 of the Police Act. The delinquent in such cases necessarily requires copy of this report for the purposes of making out his defence in the departmental proceedings. The learned counsel, thus, has stressed with good deal of vehemence that since the petitioner was refused the supply of a copy of such report and the copies of the statements of witnesses recorded in the preliminary enquiry, he has been denied opportunity of defence and the entire enquiry should, thus, be taken to have vitiated.
6. Learned counsel has further contended in the aforesaid context itself that Enquiry Officer could not be absolved of his responsibility simply by addressing a letter (Annexure-6 to the writ petition) to the petitioner and asking him to inspect the record of preliminary enquiry lying in the office. A simple communication permitting the petitioner to inspect the record is not sufficient. The access of the petitioner to such record must be assured to him by the Enquiry Officer. Learned counsel in order to fortify his submission in this context has referred to the case of State of U. P. v. Shatrughan Lal and Ors., 1998 (3) AWC 2373 (SC) : 1998 (80) FLR 389 ; Kashinath Dikshita v. Union of India and Ors., AIR 1986 SC 2118 and S. K. Singh v. Central Bank of India and Ors., 1997 (75) FLR 402.
7. For convenience sake, paragraphs 486 (iii) and 489 of the Police Regulations are reproduced below :
"486 (iii). When a Superintendent of Police sees reasons to take action on information given to him, or on his own knowledge or suspicion, that a police officer subordinate to him has committed an offence under Section 7 of the Police Act or non-
cognizable offence (including an offence under Section 2 of the Police Act) of which he considers it unnecessary at that stage to forward a report in writing to the District Magistrate under Rule 11 above he will make or cause to be made by an officer senior in rank to the officer charged, a departmental inquiry sufficient to test the truth of the charge. On the conclusion of this inquiry he will decide whether further action is necessary, and if so, whether the officer charged should be departmentally tried, or whether the District Magistrate should be moved to take cognizance of the case under the Criminal Procedure Code ; provided that before the District Magistrate is moved by the Superintendent of Police to proceed criminally with a case under Section 29 of the Police Act or other non-cognizable section of the law against an Inspector or Sub-inspector, the concurrence of the Deputy Inspector General must be obtained. Prosecution under Section 29 should rarely be instituted and only when the offence cannot be adequately dealt with under Section 7."
"489. A police officer may be departmentally tried under Section 7 of the Police Act :
(1) whether he has or has not been tried judicially ;
8. It is no doubt that before initiating a departmental trial for a particular misconduct under Section 7 of the Police Act, sub-para (3) of para 489 of the Police Regulations does contemplate a departmental enquiry, which is, of course, preliminary in nature. In the report of such enquiry, if it is found, that there are definite reasons to take action against the police personnel by the Superintendent of Police on the basis of some misconduct, the proceedings under Section 7 of the Police Act can be directed. Obviously, such preliminary enquiry report has its own significance. Though it is nowhere specifically provided that a copy of the report of such enquiry has to be necessarily provided to the delinquent against whom the charges have been framed, yet such preliminary enquiry report does have its importance towards preparing a defence in the enquiry. In the present case, while framing charges and serving it upon the petitioner under paragraph 490 of the Police Regulations, admittedly, a copy of such preliminary enquiry report was not furnished to him. The delinquent, vide Annexure-5, made a request to the Enquiry Officer for providing a copy of such preliminary enquiry report to which a reply was sent by the Enquiry Officer, vide Annexure-6 to the writ petition, informing him that the copy of such enquiry report could not be given under Rules, but the petitioner might come to the office and inspect the record of the enquiry and note down the points for his defence. From the material on record, it is, however, evident that the petitioner did not make any effort for inspection of such record as permitted by the Enquiry Officer. He submitted his written statement to counter the charges served upon him, vide Annexure-8 to the writ petition. In that statement of his defence, he has nowhere mentioned that he was handicapped in making out an effective defence against the charges on account of non-supply of the copy of the preliminary enquiry report. As the materials on record reveal, the petitioner after submission of this written statement, fully participated in the entire proceeding of the enquiry conducted against him and the respondent No. 1, U. P. Public Services Tribunal, in its judgment, has clearly held that no procedural irregularity or illegality in the entire proceedings of the enquiry is found to have been committed. Whether non-supply of the copy of the preliminary enquiry report and simple permission given to the petitioner to inspect the record of the preliminary enquiry in the office of Superintendent of Police will amount to deniai of opportunity of defence to the petitioner or not, actually, remains a question to be considered. In the case of State of U. P. v. Shatrughan Lal (supra), the Apex Court had recorded certain circumstances, which might amount to denial of fair opportunity and violation of principle of natural justice if copies of documents are not provided to the delinquent. The relevant portion of the judgment rendered in the case are extracted below :
"In High Court of Punjab and Haryana v. Amrik Singh, it was indicated that the delinquent officer must be supplied copies of documents relied upon in support of the charges. It was further indicated that if the documents are voluminous and copies cannot be supplied, then such officer must be given an opportunity to inspect the same, or else, the principles of natural justice would he violated.
Preliminary inquiry which is conducted invariably on the back of the delinquent employee may, often, constitute the whole basis of the charge-sheet. Before a person is, therefore, called upon to submit his reply to the charge-sheet, he must, on a request made by him in that behalf, be supplied the copies of the statements of witnesses recorded during the preliminary enquiry particularly if those witnesses are proposed to be examined at the departmental trial. This principle was reiterated in Kashinath Dikshita v. Union of India and Ors. (supra), wherein it was also laid down that this lapse would vitiate the departmental proceedings unless it was shown and established as a fact that non-supply of copies of those documents had not caused any prejudice to the delinquent in his defence.
Applying the above principles to the instant case, it will be seen that the copies of the documents which ere indicated in the charge-sheet to be relied upon as proof in support of articles of charges were not supplied to the respondent nor was any offer made to him to inspect those documents.
Learned counsel appearing for the appellant has contended that the opportunity to inspect the documents, as a matter of fact, provided to him as set out in paragraph 10 of the written statement filed before the Tribunal, in which, it was, inter alia, indicated as under :
"The petitioner was required to reply to the charge within a period of 15 days from the date of receipt of charge-sheet and not from the date of order as alleged in the petition. It is no doubt correct that the copies of the documents mentioned in the charge sheet purporting to substantiate a particular charge, were not supplied to the petitioner because it was not necessary and the petitioner had every right to inspect them at any time. It is, therefore, wrong to say that the petitioner was greatly handicapped for want of the copies of the documents mentioned above."
This paragraph of the written statement contains an admission of the appellant that copies of the documents specified in the charge-sheet were not supplied to the respondent as the respondent had every right to inspect them at any time. This assertion clearly indicates that although it is admitted that the copies of the documents were not supplied to the respondent and although he had the right to inspect those documents, neither were the copies given to him nor were the records made available to him for inspection. If the appellant did net intend to give copies of the documents to the respondent, it should have been indicated to the respondent in writing that he may inspect those documents. Merely saying that the respondent could have inspected the documents at any time is not enough. He has to be informed that the documents, of which the copies were asked for by him may be inspected. The access to record must be assured to him."
9. In the aforesaid case, the respondent delinquent was not supplied copies of documents which were indicated in the charge-sheet to be relied upon as proof in support of those charges nor there was any offer from the Enquiry officer to the delinquent to make inspection of those documents. The Apex Court in view of such circumstances only found that prejudice was caused to the delinquent on account of non-supply of the copies of documents. Had the delinquent been indicated in writing that he might inspect those documents, the findings of the Apex Court, in that case, would have been otherwise. Therefore, the aforesaid case law on the facts does not appear to be applicable to the facts of the case at hand. Here, the petitioner made a written request to the Enquiry Officer, vide Annexure-5 for supply of a copy of the preliminary enquiry report and copies of statements of witnesses recorded in the enquiry to him. To this request, intimation was sent to him by the Enquiry Officer that he may inspect the record of the preliminary enquiry. Obviously in the aforesaid case of Shatrughan Lal (supra), the delinquent was not offered inspection of the record and on that ground only, the Apex Court found that the access to such record was not assured to the: delinquent. In the present case, specific intimation has been given to the petitioner for inspection of the record of preliminary enquiry and it eannot be, thus, reasonably held that access to the record of preliminary enquiry was not assured to him.
10. In the case of Kashinalh Di/cshi( (supra), paras 8, 9, 10 and 11 of the judgment are relevant and are extracted as below :
"8. An examination of the record clearly shows that even though the appellant had in terms demanded copies of the documents and statements in question the disciplinary authority had turned down the request. On December 3, 1963, the appellant had moved the Board for copies of documents and statements in question. In the application made by the appellant, he has made the request in this behalf in the following terms :
"(1) That he has not so far been supplied with copies of the documents cited in evidence and of the statements made by persons named as witnesses on the eight charges framed against me by the first party vide Annexures-1 and 11 to G.O. No. CR-70/11-A-1962, dated 3.4.1962 from Mukhya Sachiva, Uttar Pradesh.
(2) That to prepare himself for cross-examination of the witnesses for rebuttal of prosecution evidence and for adduction of evidence in my defence, the applicant has to make a careful and detailed study of the said documents and statements.
(3) That it is only after such a careful study of documents and statements that the applicant shall be able to decide on the names of the witnesses to be examined in my defence and on the nature of documentary evidence to be adduced in defence.
The extracts quoted hereinabove leave no room for doubt that the disciplinary authority refused to furnish to the appellant copies of documents and copies of statements. When a Government servant is facing a disciplinary proceedings, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the concerned employee prepare his defence, cross-examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question : "What is the harm in making available the material?" and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the Courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself. On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privilege in it. It is not even the case of the respondent that there was involved any consideration of security of State or privilege. No doubt the disciplinary authority gave an opportunity to the appellant to inspect the documents and take notes as mentioned earlier. But even in this connection the reasonable request of the appellant to have the relevant portions of the documents extracted with the help of his stenographer was refused. He was told to himself make such notes as he could. This is evident from the following passage extracted from communication dated 25.7.1962, from the disciplinary authority to the appellant :
"The Government has been pleased to allow you to inspect all the documents mentioned in Annexure-11 to the charge-sheet given to you. While inspecting the documents, you are also allowed to take notes or even prepare copies, if you so like, but you will not be permitted to take a stenographer or any other person to assist you, in case you want copies of any specific documents, from out of those inspected by you, the request will be considered on merits in each case by the Government. In case you want to inspect any document, other than those mentioned, in Annexure-II, you may make a request accordingly, briefly indicating its relevancy to the charge against you, so that orders of the Government could be obtained for the same. As pointed out above, if you wish to have copies of any specific documents, from those inspected by you, you should make a request in writing accordingly, mentioning their relevancy to the charge, so that orders of Government could be obtained.
Government, however, maintains that you are not entitled to ask for copies of documents as a condition precedent to your inspection of the same. I am further to add that in case you do not inspect the documents on the date fixed, you will do so at your own risk."
10. And such a stance was adopted in relation to an inquiry whereat as many as, 38 witnesses were examined, and 112 documents running into hundreds of pages were produced to substantiate the charges. In the facts and circumstances of the case we find it impossible to hold that the appellant was afforded reasonable opportunity to meet the charges levelled against him. Whether or not refusal to supply copies of documents or statements has resulted in prejudice to the employee facing the departmental inquiry depends on the facts of each case. We are not prepared to accede to the submission urged on behalf of the respondents that there was no prejudice caused to the appellant, in the facts and circumstances of this case. The appellant in his affidavit page 309 of the S.L.P. paper book has set out in a tabular form running into twelve pages as to how he has been prejudiced in regard to his defence on account of the non-supply of the copies of the documents. We do not consider it necessary to burden the record by reproducing the said statement. The respondents have not been able to satisfy us that no prejudice was occasioned to the appellant,
11. Be that as it may, even without going into minute details it is evident that the appellant was entitled to have an access to the documents and statements throughout the course of the inquiry. He would have needed these documents and statements in order to cross-examine the 38 witnesses who were produced at the inquiry to establish the charges against him. So also at the time of arguments, he would have needed the copies of the documents to enable him to effectively cross-examine the witnesses with reference to the contents of the documents. It is obvious that he could not have done so if copies had not been made available to him. Taking an overall view of the matter we have no doubt in our mind that the appellant has been denied a reasonable opportunity of exonerating himself. We do not consider it necessary to quote extensively from the authorities cited on behalf of the parties, beyond making passing reference to some of the citations, for, whether or not there has been a denial to afford a reasonable opportunity in the backdrop of this case must substantially depend upon the facts pertaining to this matter."
11. In the aforesaid case, the board of enquiry had refused to accede to the request of the delinquent since he had been earlier allowed access to the document and other relevant official record of the Government for preparing his written statement. The disciplinary authority in this case had also refused his reasonable request to have the relevant portion of the documents extracted with the help of his Stenographer. He was compelled, to himself make such notes as he could. In such circumstances and on these facts only, the Apex Court found that the refusal of supply of documents, statement and also the denial to have access to those documents with a helper (Stenographer) to take necessary notes, resulted in prejudice to the employee facing departmental enquiry.
12. In the case at hand, the petitioner was permitted inspection of the record of preliminary enquiry, but thereafter he did not make any effort for such inspection nor did he ever make any further request during the entire enquiry to have a look into such record for the purposes of preparing his defence. The petitioner was not denied inspection of the record for the purposes of preparing his defence and instead, he himself did not take any steps in furtherance to the permission of inspection granted by the Enquiry Officer. Therefore, on the facts of the present case, the principles of the case law of Kashinath Dikshita (supra) are also not applicable and cannot be treated to help out the petitioner in his contention of denial of fair and proper opportunity of defence.
13. In the case of S.K. Singh (supra), the Apex Court dealt with a matter in which the delinquent was not supplied with a copy of final enquiry report about which the law is settled that in order to enable the delinquent to make his representation against the proposed action of punishment and offer his explanation, it is sine-qua-non for the punishing authority to supply such copy of departmental enquiry report. The employee, thus only, can make his representation against the proposed action or punishment. Thereafter the authority is required to consider such explanation offered and then to take decision on quantum of punishment. It is, therefore, obvious that in S. K. Singh's case, the petitioner delinquent was not supplied a copy of departmental enquiry report on the basis of which the action of dismissal was proposed and was finally awarded against him. The Apex Court in such circumstances found that since the petitioner S. K. Singh had not been able to show to the Court as to what prejudice he had to suffer on account of non-supply of the copy of report, he had no cause for interference against the punishment of dismissal awarded against him. Relevant paragraph of the judgment of the said case is extracted below :
"It is contended by Sri Khanduja, learned counsel for the petitioner that since this Court has laid down the law that supply of copy of the enquiry report is a pre-condition for a competent officer to take disciplinary action, the appropriate course would have been to send back the case to the disciplinary authority. For this course, normally there is no quarrel, as this Court had settled the law that a copy of the report needs to be supplied to the delinquent employee to enable him to make representation against the proposed action or punishment and, thereafter, the authority is required to consider that explanation offered by the petitioner and then to take decision on the quantum of punishment. In this case, though copy of the report was not supplied, he was asked by the learned single Judge as well as by the Division Bench as to what prejudice he suffered on account of non-supply of the report ; but he was not able to satisfy the learned Judges as to the prejudice caused to him on account of non-supply of the enquiry report. On the facts, we find that there is no illegality in the decision taken by the High Court."
14. In the present petition before us, the delinquent Sant Prasad Pandey had been supplied with the final enquiry report held under Section 7 of the Police Act to which he submitted his explanation on two occasions and after consideration of those explanations, the Senior Superintendent of Police, Lucknow, respondent No. 4, vide Annexure-2 to the writ petition, awarded punishment of dismissal after placing reliance upon the enquiry report submitted before him. The petitioner in this case has simply pleaded that he was not supplied the copy of the preliminary enquiry report. As we have already observed above, the non-supply of that preliminary enquiry report shall not amount to have ended in any prejudice against the petitioner because he was already permitted inspection of those documents of the said enquiry including the statements of witnesses recorded by the fact finding Enquiry Officer. The petitioner, in pursuance to the said permission for inspection of the record had not taken any steps as to go to the office of S.S.P., Lucknow and inspect the record. This conduct of the petitioner is obvious enough to show that non-supply of the said documents had actually not culminated into any prejudice to him in the present enquiry, much less to what he could show and project before the Tribunal (respondent No. 1) as to the prejudice he suffered from. As such the case law of S.K. Singh is also not applicable to the facts of the present case.
15. Be that as it may, the copy of the preliminary enquiry report and the statements of the witnesses recorded in that enquiry were documents of considerable significance for the petitioner in order to prepare and have his effective defence in the final enquiry. He made a request for supply of copies of those documents to the Enquiry Officer, who, in turn, permitted him its inspection in the office of respondent No. 4. The petitioner, without making inspection of those documents and without availing of the said opportunity provided to him, participated in the enquiry throughout and made effective cross-examination with the witnesses produced in the departmental proceedings. After the closure of the evidence of the prosecution. Enquiry officer again called upon the petitioner, Sant Prasad Pandey, to submit further defence statement and the list of his defence witnesses to whom he wanted to examine in the enquiry (Annexure-7 to the writ petition). The petitioner thereupon submitted his defence statement (Annexure-8 to the writ petition), wherein at no place it is mentioned that prejudice had been caused to him in non-supply of the copy of the preliminary enquiry report and the copies of the statements of the witnesses. Thus, from the attending circumstances and the material available on record, we have no reason to believe that the petitioner was deprived of effective cross-examination of the witnesses examined on behalf of the prosecution during the departmental enquiry under Section 7 of the Police Act. It also cannot be presumed by us that the petitioner had been denied reasonable opportunity of exonerating himself. Whether or not there has been denial of reasonable opportunity in a particular case is always dependent upon the backdrop of the facts of the said case. Since the petitioner has not shown any prejudice having been caused to him in non-supply of the relevant documents, we are not prepared to believe that this could be treated to be a case of violation of principle of natural justice and shutting down of reasonable opportunity to the petitioner amounting to depriving him of making effective defence in the enquiry. The submission of the learned counsel for the petitioner in this regard, thus, do not satisfy us to hold that this could be treated as a case of denial of opportunity, thus, prejudicing the petitioner and vitiating the whole enquiry.
16. Learned counsel for the petitioner also contended that there is a charge that the delinquent petitioner, Sant Prasad Pandey, was keeping one Sita Devi as his wife having illicit connection with her in the life time of his legally wedded wife. The learned counsel for the petitioner, with the support of the case of Pravina Solanki v. State of U. P. and Ors., 2001 (2) AWC 1592, and decided by a Division Bench of this Court, has argued that if it is taken for granted that the petitioner was keeping Smt. Sita Devi as a mistress and was having illicit connection with her in the life time of his legally wedded wife, it does not amount to a misconduct under the Government Servants Conduct Rules. Keeping a mistress is a conduct in private life and if it does not affect official functions of the Government servant, it does not amount to misconduct. This would also amount to misconduct if it is shown that it has reduced the utility of a delinquent as a public servant and has led to damage the Government or official generally in public esteem. The relevant paragraphs 3 and 4 of the judgment are extracted below :
"3. In para 4, it is alleged that when the petitioner was posted at Firozabad, her younger sister Anjali developed some serious medical trouble, hence her mother took a room on rent in Agra and brought Km. Anjali for treatment at Agra and both started living there together. The petitioner often visited them. Various facts have been alleged in the petition but it would not be necessary to go into the same. All that is necessary to mention is that the petitioner has alleged that due to some enmity, the Dy. S.P. the respondent No. 5 raided her residence on 30.12.1987 at about 11.30 p.m. and arrested the petitioner and one Jagdish Saran Joshi, a guest of the petitioner's mother in order to defame the petitioner and get her removed from service. They were medically examined and the petitioner was suspended on 2.1.1988 by order of the S.S.P., Agra. The petitioner was charge-sheeted on 31.10.1988, vide Annexure-6 to the petition. In this charge-sheet, it is alleged that on the night of 30/31.12.1987, the petitioner was found at her residence under influence of liquor and sleeping with Jagdish Saran Joshi in the same bed. Bottles of liquor and some rifle, guns and cartridges were also recovered. On the basis of the said charge-sheet, an inquiry was held against the petitioner. True copy of the inquiry report dated 28.2.1989 is Annexure-7 to the petition. Thereafter vide order dated 2.8.1989, the petitioner was dismissed from service. Her appeal before the D.I.G. was also dismissed and the revision before D.G.P. vide Annexure-9 also failed. The petitioner then approached the U. P. Public Services Tribunal but her petition was dismissed vide Annexure-10 to the writ petition. Hence this writ petition.
4. There are no allegations against the petitioner that her conduct in any way affected her official functions. There is also no allegation that she was on duty at the relevant time. In our opinion, 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. In the case of In re Rabindra Nath Ghosh, 1985 (1) SLR 598, this was the view taken by the Calcutta High Court and this was also the view taken by a Division Bench of this Court in State of U. P. v. B.N. Singh, AIR 1989 All 359. The position may have been different if the petitioner was doing the aforesaid acts while on duty, but in the present case, she was at her residence late in the night, and there is no allegation that she was on duty at that time. As held by this Court in the case of State of U. P. v. B.N. Singh (supra), in order to bring a case of a Government servant within the definition of personal immorality on the ground of habit of sex, it must be shown that this habit of the Government servant has reduced his utility as a public servant so as to damage the Government or official generally in public esteem. In Sukhdev Singh v. State of Punjab, 1983 (2) SLR 645, the Punjab High Court held that a constable under influence of alcohol while not on duty cannot be held to be guilty of misconduct. In the present case, the petitioner was not having sex in a public place but at her residence. Hence it cannot be said that she has committed any misconduct for which she can be departmentally proceeded against."
17. The Enquiry Officer, in the present case, in respect of charge No. 2 had recorded finding that though it could not be proved that the petitioner was keeping Smt. Sita Devi as his wife in the life time of his first wife, but he having illicit connection with her. Thus, the charge in that regard is said to have been partly proved against the delinquent petitioner. It is true that in view of the aforesaid case law of Pravina Solanki (supra), it does not come within the purview of misconduct as contemplated in U. P. Government Servants Conduct Rules or Service Jurisprudence. Obviously if keeping a mistress in the life time of his legally wedded wife is not misconduct, ft could not be a charge as to occasion awarding of punishment. Accordingly, the punishing authority could not have based his order of awarding punishment on this charge.
18. Even though the aforesaid charge of keeping Smt. Sita Devi as wife in the life-time of the legally wedded wife, levelled against the delinquent petitioner is not established, the charges No. 2 and 3 after having been fully proved during the enquiry, the punishment of dismissal from service awarded to him by respondent No. 4 if commensurates to the guilt proved is a relevant aspect of the case. On the quantum of punishment being extreme in nature, the learned counsel for the petitioner has contended that it is harsh and shockingly disproportionate. The learned senior advocate, in this context, has relied upon a judgment in the case of Rajendra B. Oza v. Air India, Bombay. 2003 Lab IC 19, rendered by single Judge of Bombay High Court. In that case, the petitioner, a Security Officer with Air India, had abstained from duty for 38 days and on that charge, the punishment of dismissal after domestic enquiry was awarded against him. The Court found such award of punishment to be excessively harsh. In the present case at hand, the petitioner is a police personnel, member of disetplined force of the State and he has remained absent from duty from 9.4.1977 without any leave or permission. He has also been shown to have tried to Justify his absence from duty by making false application to his immediate superior. It is not only the absence from duty but also making false application to Justify his absence are the charges against the present delinquent petitioner. At one time, he justified his absence and claimed grant of leave on account of illness of his wife. Later on, he has justified his absence on account of illness of his mother. These circumstances have led the Enquiry Officer to believe that the delinquent had tried to falsely justify his claim for grant of leave and remained absent for no reasonable cause. It is clear that the petitioner remained absent without grant of leave and he later on tried to falsely justify the circumstances for his absence. Since such charges against police personnel, a member of the disciplined force, have been established, the award of punishment of dismissal against him in any case cannot be said to be excessive or disproportionate. He is not supposed to leave his work place unless and until the leave was sanctioned. A person of police force is not supposed to abstain from duty after his request for leave has been refused. If the Inspector-in-charge of the police station was not acceding to his request for leave, he should have approached the higher officer and placed his case for grant of leave. The conduct of the petitioner as police personnel has been highly dissatisfactory and he has acted irresponsibly. In such circumstances, if the extreme punishment of dismissal has been awarded against him, it cannot be said to be sufficient to draw inference of mala fide in such imposition of punishment. The punishment awarded is also not disproportionate to the alleged misconduct of the petitioner. There was absolutely no occasion for the Tribunal, respondent No. 1 to interfere in the impugned order of dismissal and the inquiry report on the ground that the same was disproportionate and excessive to the charges of misconduct. Thus, on this score also, we do not find any justification to interfere against the impugned order of Tribunal or the orders passed against the petitioner by respondent Nos. 4 and 5.
19. The petition having no merit, thus, is hereby dismissed with no order as to costs.