Judgment reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 80 (S/B) of 2003 Devendra Singh Bisht S/o Sri Trilok Singh - Petitioner Versus Uttaranchal High Court Nainital and another - Respondents Ms. Seema Sirohi, Advocate for the petitioner. Mr. Rajendra Dobhal, Senior Advocate for the respondents. (Hon’ble B.S. Verma, J.) By means of this petition the petitioner has sought the following relief:- (1) To issue a writ, direction or order in the nature of certiorari quashing the order dated 3-10-1998(Annexure No.6 to the writ petition) and order dated 19/20-09-2002 (Annexure No.8 to the writ petition) and communication dated 27-09-2002( Annexure No.9 to the writ petition). (2) To issue a writ, direction or order in the nature of mandamus directing the respondent No.2 to reinstate the petitioner with full back wages. (3) Any other suitable, writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case. (4) To award the cost of the writ petition to the petitioner. Briefly stated the facts of the case, are that the petitioner was appointed as Process Server in the District Court Almora on 01- 07-1978. Subsequently he was absorbed in District Court Pithoragarh. The District Judge Pithoragarh initiated departmental enquiry No. 1/97 against the petitioner on the charges that he misbehaved on 2.6.1997 with persons of locality after consuming liquor. It was further alleged that the petitioner was living in adultery with one Smt. Tulsi Devi. On 5.8.1997 a charge sheet comprising of two charges; firstly living in adultery with Smt. Tulsi Devi and secondly 2 misbehaving with persons of locality in drunken state, was submitted. Formal inquiry was conducted by Sri Ravindra Maithani, the then Civil Judge (Jr. Division), Didihat and he has held that first charge of living in adultery with Smt. Tulsi Devi was proved against the petitioner. However, he found that the second charge of rowdy misbehaviour with persons of locality in drunken state on 2.6.97, was not proved as the witnesses did not support the allegation. The District Judge, Pithoragarh on the basis of inquiry report submitted by the Civil Judge (J.D.) dismissed the services of the petitioner vide order dated 3-10-1998. Feeling aggrieved by the above order the petitioner preferred departmental appeal before the High Court which was dismissed by the Administrative Judge vide order dated 20-9- 2002. Now the petitioner has preferred this writ petition against his dismissal. According to the petitioner earlier also he was dismissed from service on the same charge of living in adultery with Smt. Tulsi Devi vide order dated 1-7-1995. Being aggrieved by the dismissal order dated 1-7-1995 the petitioner filed departmental appeal on administrative side before the Hon’ble Allahabad High Court, which was allowed vide order dated 11-10-1996, and order of his dismissal was set aside and the petitioner was punished by withholding three increments with cumulative effect permanently. Pursuant to above order the petitioner was reinstated in the service and the period from the date of dismissal till the date of reinstatement the petitioner was treated on duty and was held entitled to full salary and allowances. The grievance of the petitioner is that earlier dismissal order dated 1-7-1975 was passed on the same set of facts and grounds, which was set aside by the High Court on administrative side and now again for the same misconduct he has been dismissed from service vide order dated 3-10-1998, which is violation of Article 20 of the Constitution of India, which guarantee fundamental right against double jeopardy, hence the impugned order is bad in law and is liable to be set aside. The respondents filed counter affidavit and denied the allegations made in the writ petition. They alleged that the petitioner continuously indulged in adulterous life with Smt. Tulsi Devi and the 3 inquiry officer as well as District Judge has rightly found him guilty and rightly dismissed him from the services and the departmental appeal filed by him against his dismissal order has already been dismissed by the Hon’ble Chief Justice. It is also alleged in the counter affidavit that the petitioner is regularly and continuously living in adultery with Smt. Tulsi Devi and that was the reason that he was again dismissed from service, hence Article 20 of Constitution of India does not come in the way. It is further alleged that the petitioner is a very undisciplined employee since 1983-1998 and so many adverse entries were ordered to be recorded in his character roll. Not only that, the petitioner went at the residence of the then District Judge in a drunken state and he misbehaved with him. Later on, he tendered his apology and on the confession of petitioner he was fined to Rs. 50/-. The writ petition is devoid of merit and is liable to be dismissed. I have heard learned counsel for parties and perused the record. The first contention of learned counsel for the petitioner is that on the same set of evidence and on the basis of the enquiry report the petitioner was dismissed from service on 1.7.1995 and the said dismissal order was set aside by Allahabad High Court in the departmental appeal filed by the petitioner, vide order dated 11-10- 1996 and he was punished withholding his three increments with cumulative effect permanently, and again vide order dated 3-10-1998 he has been dismissed from service on the same charge of adultery with the same lady. She further alleged that the charge of adultery has not been proved against the petitioner and his dismissal order cannot be sustained in the eyes of law. The learned Senior Advocate Mr. Rajendra Dobhal, appearing on behalf of the respondents has vehemently refuted the submissions of learned counsel for the petitioner and urged that two separate departmental enquiries were conducted against the petitioner, the first one was on the charge of adultery and the subsequent enquiry was on the charges of adultery and misbehaviour by the petitioner with the persons of locality in drunken state. After completion of first enquiry the petitioner continued to lead an adulterous life with Smt. 4 Tulsi Devi, the offence of adultery is a continuing offence, therefore, principle of double jeopardy does not come into play in the instant case and the punishment of the petitioner is justified. In order to appreciate the rival contentions of learned counsel for the parties, I have gone through the record. It is admitted case of the parties that earlier dismissal order dated 1-7-1995 was passed by the then District Judge, Pithoragarh on the charge of his living in adultery with Smt. Tulsi Devi. In that inquiry the Munsif Magistrate, Pithoragarh was appointed inquiry officer, who submitted his report and did not find the petitioner guilty of misconduct. The District Judge rejected the said report of Munsif Magistrate vide order dated 3.12.1994 and appointed Sri K.D. Bhatt, the then Chief Judicial Magistrate as inquiry officer. After completing the inquiry the C.J.M. Pithoragarh submitted his report to District Judge, Pithoragarh holding that the petitioner was living in adultery with Smt. Tulsi Devi. The District Judge, Pithoragarh accepted the inquiry report and passed the dismissal order dated 1.7.1995. Against the above order the petitioner filed departmental appeal before Allahabad High Court and the High Court on Administrative Side, vide order dated 11-10-1996 set aside the dismissal order and instead he was punished by withholding his three increments with cumulative effect permanently. Subsequently, the District Judge, Pithoragarh received complaint against the petitioner that he misbehaved with persons of locality on 2.6.1997 after consuming liquor and he is living in adultery with Smt. Tulsi Devi. Departmental Inquiry No. 1/1997 was instituted against the petitioner and Sri Ravindra Maithani the then Civil Judge(J.D.)/Judicial Magistrate, Didihat was appointed as inquiry officer. Charges were framed against the petitioner that being a legally wedded person he is leading an adulterous life by living with Smt. Tulsi Devi, which is against the Government Servant Service Conduct Rules; and secondly on 2.6.1997 he, in drunken state misbehaved with one Keshar Ram and due to his misbehaviour the persons residing in Nai Basti, Didihat apprehend danger to their lives at the hands of the petitioner. The Civil Judge (J.D.)/Judicial Magistrate Didihat, conducted the departmental inquiry and submitted his report to the District Judge. The District Judge served show cause 5 notice dated 28-8-1998 upon the delinquent official, who moved application dated 3-10-1998, making submission that before 2.6.1997 Tulsi Devi used to live in Pithoragarh for education of her children and till then Devendra Singh lived in her house as a tenant. Thereafter he left her house and is living in the house of Diwan Singh and that he has no relation or concern with Tulsi Devi. Along with this application, he has sent his affidavit and the affidavit of Tulsi Devi. The learned District Judge did not accept these affidavits in evidence as the petitioner had not sought opportunity to lead evidence on the point of punishment. However, during inquiry proceedings Devendra Singh was afforded full opportunity to adduce evidence. Smt. Tulsi Devi was also examined. One Gopal Ram was also examined in enquiry proceeding, who has deposed that Smt. Tulsi Devi is the wife of his brother. This witness has given a categorical statement before the inquiry officer that his brother has no grievance that Devendra Singh is keeping her as his wife. The petitioner and Smt. Tulsi Devi also admitted this fact that petitioner Devendra Singh is living with Smt. Tulsi Devi in adultery. It is also important to mention here that on receipt of complaint against the petitioner the Civil Judge (J.D.) Didihat asked the petitioner to change his residence, but he told him that he can not leave Tulsi Devi because he has taken a vow of Goddess Kotgari Devi to live with her and not to leave her. The Civil Judge (J.D.) Didihat also wrote in his letter that ‘Tulsi Devi’ is tatooed on the fore-arm of Devendra Singh Bisht. There is no reason to disbelieve the above facts narrated by the then Civil Judge(J.D.)/Judicial Magistrate, Didihat. Therefore, all these facts clearly establishes the charge of living in adultery with Smt. Tulsi Devi against the petitioner. Thus it is amply proved that after the conclusion of first enquiry and the setting aside of dismissal order by Allahabad High Court on Administrative Side, in departmental appeal, the petitioner continued to lead an adulterous life with Smt. Tulsi Devi. The offence of adultery is a continuing offence, therefore, it cannot be said that once the petitioner had been punished for an offence, he cannot be punished again for the same offence of adultery committed by him lateron with the same lady. Therefore, the principle of double jeopardy does not come into play in the instant case. 6 Learned counsel for the petitioner next submitted that the impugned order of dismissal has been passed on the charge of living in adultry in violation of Rule -3 of the U.P. Govt. Servants Conducts Rules, 1956, but this Rule-3, nowhere specify prohibition of a govt. servant living in adultery with some woman, rather Rule 3-A of the said Rules specify the prohibition of sexual harassment of working women at her workplace. Therefore, the punishment awarded to the petitioner is against law and is liable to be set aside. Rule-3 of The U.P. Govt. Servants Conduct Rules, 1956, reads as under- “3 General –(1) Every Government servant shall at all times maintain absolute integrity and devotion to duty. (2) Every Government servant shall at all times conduct himself in accordance with the specific or implied orders of Government regulating behaviour and conduct which may be in force.” Therefore, by perusal of Sub Rule (2) of Rule 3, it is quite clear that every Government servant shall at all times conduct himself in accordance with the specific or implied orders of Government regulating behaviour and conduct which may be in force. If a person having his wife alive, leads an adulterous life with some other married woman, the said act is certainly an offence, which is a misconduct of a Govt. Servant. In the instant case the petitioner was leading an adulterous life with Smt. Tulsi Devi, when his wife was alive. Therefore, the above act of the petitioner certainly comes within the purview of misconduct of a Govt. Servant. The misconduct committed by the petitioner involves moral turpitude. In the case of Ministry of Finance and another Vs. S.B. Ramesh reported in (1998) 3 Supreme Court Cases 227, the Hon’ble Apex Court has dealt with the question of misconduct on the point whether despite the absence of a prohibitory law, living together of a male government servant with a lady and having extra-marital sexual relationship with her, amounts to misconduct. In the above case it was held by the Apex Court that the CAT has erred in answering the said question in the negative. 7 For the reasons recorded above, I do not find any reason for interference in the dismissal order of the petitioner dated 3-10- 1998, passed by the District Judge, Pithoragarh, as well as the dismissal of departmental appeal by this Court on administrative side. The writ petition lacks merit and is liable tobe dismissed. The writ petition is dismissed. Dated: 03-05-2011 (B.S. Verma, J.) ISB