Shri.Goutam Baidya v. The Union Of India And ORS.
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] *** WP.CT/43/2024 Shri Goutam Baidya Vs.
The Union of India and others Ms. Anjili Nag ... for the petitioner Mr.Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the respondents November 5, 2024 [SR] Item No.6 1.
The instant writ petition is directed against a judgment and order dated 30th July, 2024 passed by the Central Administrative Tribunal ( CAT) in O.A.No.351/623/2018. 2.
By the impugned judgment, the CAT refused to interfere with the final order of punishment dated 12th September, 2017 passed by the Disciplinary Authority against the writ petitioner. The said order was confirmed by the Appellate Authority on 8th February, 2018.
3.
The brief facts relevant to the case are that the petitioner was employed as Constable with the Andaman and Nicobar Police. The petitioner was lawfully married as on July, 2013 and had a child.
4.
Some time in early 2013, the petitioner came into contact with the complainant at hospital where she had brought her parent for treatment. The petitioner developed intimacy with the victim and he is stated to have got married to her at a local
temple namely Ayyanar Temple at South Point, Port Blair on 5th July, 2013. Prior thereto and thereafter he continued to have physical relations with the victim.
5.
The victim filed a complaint on 11th October, 2014 that the petitioner obtained her mobile number on some pretext and constantly called her after the hospital meeting. The victim alleged that the petitioner suppressed the fact that he has already married and had a child and after a marriage with the victim at the Ayyanar Temple as indicated above, he visited the victim's parents house on several occasions. The victim also alleged that she gave the writ petitioner money from time to time.
6.
Upon receipt of complaint from the victim, a departmental proceedings as well as a criminal proceedings were initiated. They proceeded simultaneously. The petitioner was honourably acquitted in the criminal proceedings. 7.
The departmental proceedings were initiated by way of charge sheet dated 21st February, 2015. The petitioner was charged for violation of the Rules 8.26, 8.45, 8.46 and 8.47 of the Andaman and Nicobar Police Manual ( in short 'Manual'). In the context,the relevant aforementioned rules are set out hereinbelow:
"8.26. Bigamous marriages - No police officer who has a wife living shall contract another marriage without first obtaining the permission of the Administration, notwithstanding that such subsequent marriage is permissible under the personal law for time being applicable to him.
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8.45 Integrity of the highest order is the fundamental basis of the prestige of the police, recognizing this the police must keep their private lives scrupulously clean, develop self-restraint and be truthful and honest in though and deed, in both personal and official life so that the public may regard them as exemplary citizens.
8.46 The police should recognize that they can enhance their utility to the Administration and the country only by maintaining a high standard of discipline, unstinted obedience to the superiors and loyalty to the force and by keeping themselves in a state of constant alertness and preparedness.
8.47 No police officer shall, in any place and whether on leave or on duty, conduct himself in any manner or take part in any activities, calculated or likely to bring the force into contempt; or to be prejudicial to the maintenance of the good order and discipline of the force; or to be prejudicial to the proper performance of duties of the force."
8.
The petitioner submitted a reply to the charge sheet on 25th February, 2015. Not being satisfied with the petitioner's reply, the Disciplinary Authority appointed Inquiry Officer and Presenting Officer. The petitioner was allowed a Defense Assistant. As many as five witnesses were examined by the prosecution. PW-1 was the father of the victim. The evidence of the father of the victim as well as the complainant and the B.N.Dubey(PW-5), the Vigilance Police Officer who conducted the preliminary enquiry, clearly established the factum of marriage between the victim and the writ petitioner. 9.
The physical relations between the victim and the petitioner have not been explicitly and completely denied by the writ petitioner. The evidence of the other witnesses proved the same.
10.
The petitioner was allowed to cross-examine all the witnesses of the management. Based on the evidence on the record, the Inquiry Officer submitted a report to the Disciplinary Authority dated 31st October, 2016. The Inquiry Officer found the petitioner guility.
11.
The petitioner was served with a copy of the Inquiry report and he represented in detail there against. 12.
The Disciplinary Authority considered the report of the Inquiry Officer and the representation of the writ petitioner. By an order dated 21st September, 2017, the Disciplinary Authority found the petitioner guilty of misconduct for violation of Rules 8.26, 8.45, 8.46 and 8.47 of the Manual.
13.
This Court has carefully considered the report of the Inquiry Officer and the findings of the Disciplinary Authority. All relevant materials on records have been taken into consideration and the Disciplinary Authority appears to have weighed the evidence and passed his final order based on the evidence on record. The Disciplinary Authority awarded a punishment of dismissal from service for infraction of the above Rules cumulatively.
14.
The writ petitioner carried the order of the Disciplinary Authority before the Appellate Authority being the Director General of Police vide appeal dated 9th October, 2017. The Appellate Authority rejected the petitioner's appeal by a detail reasoned order dated 8th February, 2018.
15.
This Court finds that the petitioner has been given a fair opportunity to defend himself in the inquiry and there is no violation of the principles of natural justice. The findings of the Disciplinary Authority and Appellate Authority are based on the evidence on record. They are neither perverse nor arbitrary. The said orders therefore do not call for any interference. 16.
Ms. Anjili Nag, however, has challenged the quantum of punishment imposed on the petitioner. She submits that given the misconduct proved i.e. bigamy and adultery and having physical relations outside the marriage is no longer being an offence under the Indian Penal Code and the fact that the petitioner was honourably acquitted in the criminal proceeding, the punishment of dismissal from service imposed on the petitioner is grossly disproportionate to the charge proved against the petitioner.
17.
In this regard, she relied upon the paragraph 21 in the case of G.M.Tank vs. State of Gujarat and Others reported in (2006) 5 SCC 446; State of Kerala vs. P.V.Kurian reported in 2024(2) KLT 428 and in the case of Joseph Shine vs. Union of India reported in (2019) 3 SCC 39. 18.
This Court has carefully considered the observations of the Supreme Court in the aforesaid cases. The doctrine of proportionality is now well settled and recognized principles of the Administrative law.
19.
By reason of the decision of the Supreme Court in Union of India vs. G.Ganayutham reported in 1997 (7) SCC 463, Justice K.Puttuswamy (Retd) vs Union of India reported in (2019) 1 SCC 1, the doctrine has become an integral part of Administrative law in this country. This doctrine now forms one of the foundational principles in judicial review of the administrative action.
20.
In the facts of the instant case, it is seen that the Tribunal was testing the conduct of a police constable holding a position of authority in society. The presence and sight of a police constable is required to instill a sense of fear and respect amongst the public at large. Such position is easily capable of being abused.
21.
A plain reading of Rule 8.25 set out hereinabove indicates that a officer of a disciplinary force cannot contract a second marriage even if permitted in terms of his religious beliefs, without the prior sanction of the Administration. In the instant case, the petitioner being a Hindu could not contract a second marriage even otherwise in law.
22.
The chain of events that had come on record, i.e. befriending of the victim by the petitioner, the regular contact with her on mobile phone, the marriage with her in a local temple and the continuous physical relationship with her (irrespective of whether the victim knew of his first marriage) clearly attract the Rules under which the departmental proceedings have been initiated against the petitioner. In fact,
the majority of the Rules have been violated by the petitioner. While it is true that the offence of adultery is not a crime, it is still a civil wrong. The petitioner has been charged with Bigamy and improper conduct while not on duty.
23.
Courts interfere with punishments only when it is shockingly disproportionate to the charges framed. In the facts and circumstances of this case, this Court is of the clear and unequivocal view that the maximum punishment of dismissal from service imposed on the petitioner is neither disproportionate nor non-commensurate with the charges proved against the writ petitioner.
24.
This Court is of the view that a member of the disciplinary force like the police is required to maintain a high standard of basic discipline and follow rules and stand as an example before the public at large.
25.
This Court is of the view that the punishment of dismissal imposed on the petitioner is appropriate and commensurate with charges proved against him. The impugned order of the CAT is in accordance with law and calls for no interference. 26.
The writ petition fails and hereby dismissed. 27.
There shall be no order as to costs.
28.
Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities. ( Rajasekhar Mantha, J. ) ( Partha Sarathi Sen, J. )