The Rajasthan High Court has ruled that the state government cannot initiate departmental proceedings against a government employee for being involved in an extra-marital relationship.
The single-judge Jaipur bench of the court was hearing a writ petition filed by two police personnel — an inspector and a woman constable — who were suspended in March 2001 for allegedly being involved in an extra-marital affair. The couple, as well as the woman’s child, were also directed to take a DNA test. The court had stayed the suspension order and departmental proceedings till the disposal of the writ petition.
In his order on March 7, Justice Sanjeev Prakash Sharma ruled that the government ’s action was illegal. “This court is of the opinion that an act of relationship entered by an individual with another female or male, as the case may be, while his/ her spouse is alive, would be an act amounting to adultery and would be considered as an immoral act so far as the Indian society is concerned… The same would, however, not be a ground for initiating departmental proceedings by the employer and it be best left for the person who may be affected individually to take remedy and proceed against him/ her in civil law or for initiating divorce proceedings,” he said.
Appearing for the government, Additional Advocate General G S Gill had submitted that the state has exclusive right and control over its employees so far as service laws are concerned. He said that any conduct which creates conflict in society has to be treated as immoral. He said there is no room for allowing an individual to enter into an illicit relationship, and therefore the employer has to take departmental action.
In its judgment, the court referred to various instances from Indian mythology, where gods like Ganesh and Indra had multiple partners. “While it is true that the Constitution of India depicts the history of India i.e. ‘Bharat’, however, as held by the Supreme Court… the evolution of a human mind is a continuous process. With the change of times, the concept of morality has to be understood according to change of society, and the concept which an individual citizen may be holding 100 years back would not be the same with the progression of human development. The lawmakers have to keep pace with the advancement of society and the interpretation has to be done accordingly,” it said.
“While generally, it is held that being faithful to one’s spouse and not having relations with any other woman is one of the concepts of moral values, however, it has different connotations in different societies. Thus, what is understood to be leading a moral life in one particular society, may be treated as leading an immoral life in another,” it said.
“Thus, this court feels that human dignity attaches to itself a right of concept of autonomy and also a right to take one’s own decisions for himself or herself relating to his/ her body and choices of his/ her partner for whom he or she wishes to live or have sexual intercourse. These choices and selections cannot be a subject matter of departmental proceedings and no employer can be allowed to do moral policing on its employees which go beyond the domain of his public life,” the court said.
“It is also to be noticed that if a DNA test is conducted relating to the child, it would amount to examining the paternity of the child, and in departmental proceedings, such a procedure cannot be allowed to be adopted as it would be beyond the purview of the authorities since the child cannot be said, in any manner, to be under the control of the concerned departmental authorities,” it said.
The writ petition had asked whether Section 4 of the Rajasthan Conduct Rules of 1971, which binds a government servant not to lead an “immoral” life, would include in its ambit a consensual relationship between an adult man and woman, and whether the employer could take departmental action for this.
Earlier this month, former Rajasthan-cadre IPS officer Pankaj Chaudhary was dismissed from service for an alleged extra-marital affair. He has challenged his dismissal at the Central Administrative Tribunal (CAT).