Not Open For Govt To Probe Private Affairs Of Public Servants In Absence Of Manifest Misconduct Warranting Action: Kerala High Court
The Kerala High Court recently held that as an employer, the Government ought not to enquire into the private affairs of a Government servant unless any manifest misconduct is expressed in their activities that warrants action to be taken. The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen noted that in such cases, it would be for the affected persons...
The Kerala High Court recently held that as an employer, the Government ought not to enquire into the private affairs of a Government servant unless any manifest misconduct is expressed in their activities that warrants action to be taken.
The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen noted that in such cases, it would be for the affected persons to initiate such action as against any moral conduct of the Government servant, and not for the Government to conduct an enquiry into the private affairs of the employee.
"If there is no explicit conduct disparaging the dignity of the public servant, it is not within the province of the Government to probe into the private affairs of any Government servant. In a country where privacy has been declared as part of fundamental right, it is not open for the disciplinary authority-Government to probe into the private affairs of the individual unless that private affair itself becomes a subject matter of the proceedings concluding about his character lowering dignity as public servant," the Bench observed.
As per the factual matrix, the respondent who was a driver in the Police Department was suspended from service following a criminal case being registered against him for distilling arrack along with a lady (1st accused in the case). Although he was convicted for the offences under the Abkari Act, he was subsequently acquitted on appeal.
Disciplinary proceedings were initiated against the respondent on two grounds, firstly, regarding the criminal offence, and secondly, regarding the illicit relationship with the first accused woman. He was found guilty and directed to be removed from service on the culmination of the proceedings.
The Tribunal however set aside the order of the disciplinary committee, on taking note that the respondent had been acquitted in the criminal case by the Appellate Court. It is on being aggrieved by the same that the present petition was filed by the State.
It was argued on behalf of the State authorities that the Tribunal committed a grave error in allowing the application and that the respondent had not been honourably acquitted but only given the benefit of the doubt.
The counsel for the petitioners averred that there was thus no bar under the law in proceeding with the departmental enquiry to find the guilt of the delinquent employee. It was added that since the employee had been leading an adulterous life which brought a bad image to the Police Department, the second charge was also legally sustainable against him, independent of the criminal case.
Determining that the respondent driver would be covered under the Police Act, the Court noted that when a police servant is involved in a criminal case, he cannot be proceeded against on the same set of facts in the departmental proceedings once he is acquitted from the criminal case.
Addressing the contention raised by the petitioners regarding there not having been an honourable acquittal in the case, the Court observed that the question of honourable acquittal and technical acquittal does not arise in such cases if the person happens to be a police officer.
"...if there are facts, other than those referred to in the criminal investigation, related to the criminal offence, the Department would be justified in proceeding against the delinquent police servant. Here, in this case, as far as the first charge is concerned, it is based on the criminal offence and not based on any other materials. That be the case, we hold that on his acquittal, the departmental proceedings will come to an end as no further proceedings can be initiated for departmental action," it held.
Regarding the second charge against the respondent, the Court took note that the same was because although he was married, he was leading an adulterous life with the first accused lady.
It discerned that if the 1st accused lady had raised a complaint resulting in certain legal proceedings, it might have been open for the employer-disciplinary authority to take action against such an officer.
It however added that in the absence of any explicit conduct disparaging the dignity of the public servant, it would not be within the province of the Government to probe into the private affairs of any Government servant.
Additionally, it noted that a public servant, particularly police personnel, would be expected to display or exhibit high moral standards in all circumstances and that Section 29 of the Police Act also mandates that, "all police officers on duty, in their dealings with the public, shall exhibit courtesy, propriety and compassion appropriate to the occasion and use polite and decent language".
"The adultery cannot be per se the subject matter of disciplinary enquiry on the ground of misconduct. The employer or disciplinary authority cannot expect the parties to remain loyal to each other. It is not in the authority of the employer to command the parties in the marriage to remain loyal to each other. The Government servant has also an individual right to privacy," the Court observed, adding that it would be for the affected persons to initiate action against any moral conduct of the person.
The Court also took note of the Apex Court's decision in Joseph Shine v. Union of India that constitutional courts would have to recognize freedom of choice in the matters of sexuality, and that autonomy to fulfil sexual desires in pursuit of happiness is intrinsic to dignify human existence.
"We make it clear that such private affairs sometimes qualify to be explicit in such a manner where public display of such conduct may become actionable under the law on the parameters of misconduct," it said.
The Court thus held that in the present case, the Tribunal was justified in setting aside the impugned order.
However, as regards the reinstatement and monetary benefits ordered by the Tribunal, the Court clarified that the respondent could claim monetary benefits only from the date of the order of the Tribunal till the age of superannuation. It added that if the respondent had superannuated, he would not be entitled to the salary for the period during which he was out of service, although the entire period would qualify for reckoning pensionary benefits.
The plea was thus dismissed.
Counsel for the Petitioners: Senior Government Pleader Saigi Jacob Palatty
Counsel for the Respondent: Advocates Renjith B. Marar, Lakshmi N. Kaimal, Sadchith P. Kurup, C.P. Anil Raj, and Sindhu K.S.
Citation: 2023 LiveLaw (Ker) 728
Case Title: State of Kerala & Ors. v. P.V. Kuryan
Case Number: OP (KAT) No. 314 of 2019