A.K. Sengupta, J.@mdashThe petitioner was appointed in the department of Police, Government of West Bengal in the year 1962 as Constable and posted in Industrial Reserve Force. Sometime in 1972 the petitioner was transferred to Burdwan G. R. P. S. as Constable. On about 7th July, 1982 the wife of the petitioner submitted a petition before the Superintendent Government Railway Police, Howrah alleging that the petitioner neglected to maintain the wife and the children and the petitioner had been living with another woman ignoring the petitioner''s wife and children. On the basis of the said complaint the Superintendent of Police initiated a disciplinary proceeding being Howrah G. R. P. Proceeding No. 13 dated 15th August, 1983. A charge sheet dated 25th August, 1983 was issued by the Superintendent, G. R. P. S. wherein it was alleged that the petitioner had been neglecting the wife preceding four years by not giving any money for their living cost and/or subsistence allowance and also had been leading an immoral life and the rationed commodities drawn by the petitioner was not supplied to the wife and children of the petitioners It was stated by the petitioner in reply that since the petitioner refused to submit to the whimsical desire of the wife allegations had been made against the petitioner by his wife. The said allegations are the result of the grudge which the petitioner''s wife bore against the petitioner. It was stated that the Petitioner had all along been maintaining his wife and children with his limited means. An enquiry was held. The Deputy superintendent of Police who conduct the enquiry held the Petitioner'' guil-by in his enquiry report dated 3rd May. 1984 of all the charges framed against him. The Superintend of Police agreeing his. The Superintendent of Police agreeing with the findings of the Enquiry Officer provisionally held the petitioner guilty of the charges and, a Second Show Cause Notice was issued on 6th July, 1984 asking the petitioner to show cause as to why he should not be dismissed from service. The petitioner replied to the Second Show Cause notice. The Super impendent of Police in his order dated 31st July, 1984 held that "the conduct of the petitioner should be viewed not from a moral or social point of view but from the point of view of its effect, actual or likely on the administrative system." He therefore held the petitioner guilty of charges and passed an order that he should be dismissed from service from the date of communication of the said order to him.
2. In this application the petitioner, has challenged the entire enquiry proceedings commencing from the charge sheet and culminating in the order of dismissal. This application was moved upon notice on 24th August, 1984. The learned Advocate for the respondents was directed to take necessary instructions in this matter. When the matter was called on for hearing, the learned Advocate has submitted that he has. no instructions in this matter and the matter may be disposed of on the basis of the allegations made in the petition.
3. Mr. Sudipta Maitra, learned Advocate appearing for the petitioner has submitted that the respondents did not apply their mind to the facts of this case and solely proceeded on the basis of the- complaint made by the petitioners wife. He has further, submitted that the finding of the inquiring Officer is perverse and the order of dismissal "based on such finding should be set aside.
4. Mr. Bhattacharjee on behalf of the respondents has supported the finding of the Enquiring Officer and the action taken, by the respondents in dismissing the petitioner.
5. I have considered the rival submissions. The main ground on which the Superintendent of Police held against the petitioner is that the petitioner has been leading an immoral life with one Sarama Bairgya ignoring his married wife for last four years. He held that the said charge proved against the petitioner is a very serious misconduct amounting to moral turpitude.
6. In this case there is no allegation that the petitioner is guilty of any misconduct in the performance of his duties as a constable. There is no charge of dishonesty against him. Merely because a person has not lived with his wife or neglected his wife or has lived with another woman cannot by itself prove that such person is leading an immoral life. It is difficult to say whether on the facts and in the circumstances of the case the conduct of the petitioner is immoral, The enquiring officer has proceeded solely on the evidence of the wife of the petitioner who was the complainant in this case. There was no direct evidence to connect the petitioner with the alleged misconduct. The wife of the petitioner has filed an application u/s 125 of the Code of Criminal Procedure in the Court of the learned Sub-Divisional Judicial Magistrate, Katwa and the said application is still pending. In the said application the '' wife of the Petitioner prayed for maintenance on the allegation of refusal and neglect on the part of the petitioner to maintain the wife and the children but in the said application there is no whisper made by the wife as regards any illicit connection with the said Sarama Bairagya. But in her petition before the superior officer of the petitioner, the wife of the petitioner (sic) certain allegations that the petitioner was living with the said Sarama Bairagya. one year after the petition was made an enquiry was initiated against the petitioner. After the petition was received by the authorities concerned from the petitioner''s wife they did not take any steps either to solve the problem which pertains to the domestic life of the Government servant nor did they take, any steps to warn the petitioner. The dismissal of the petitioner cannot be a solution to a problem which is more social and personal than legal or ethical. The respondents proceeded with a closed mind in awarding punishment to the petitioner. What is morally wrong or morally permissible depends on the attitude of the Society. Moral attitudes change with the change of society. The concept of morality is not a static concept. The moral turpitude is nowhere defind. No abstract standard can be laid down. Every case must depend on its own facts. A particular act may, in the context of certain facts, constitute moral turpitude but in another context it may not. It is not possible always to assimilate morals to law. The act complained of in this case cannot be said to have shocked the moral concept of the society in general. It is a relative term. The petitioner was not guilty of any criminal offence involving moral turpitude as yet nor can it be said mere neglect of the wife and the children amounts to moral turpitude..There is no charge of bigamy against the petitioner in any civil or criminal proceeding. There are thousand reasons why a husband may be compelled to ignore the wife or live elsewhere. If on the complaint of a wife a disciplinary proceeding is initiated against the husband then any wife who does not see eye to eye with her husband'' may file a complaint resulting in the loss of the job by the husband. A wife. who really loves her husband or the children cannot ask for any punishment for her husband which ''would force him to face starvation. The authorities concerned did not apply their mind in awarding the drastic punishment of dismissal of the petitioner from service on the ground that the petitioner neglected his wife and children or he lived with another woman. The impugned finding and order of dismissal are vitiated by an error of law apparent on the face of the record, and cannot be sustained. The authorities concerned should have give a warning to the petitioner or censured him if the allegations of the petitioner''s wife were correct. The husband and wife is still not legally separated. The petitioner has the obligation to maintain the wife and children. The grievance of the petitioner''s wife cannot be redressed by dismissed of the petitioner from service. If the petitioner is dismissed he will not be able to support himself far less supporting his wife and the children. The result will be disastrous. In the application filed for maintenance in the criminal court the wife has not made any grievance that the petitioner was leading immoral life. On the application of the petitioners wife u/s 125 of the Criminal Procedure Code if any order is made directing the petitioner to'' pay maintenance the petitioner will not be able to do so as he has been dismissed from his service. The grievance of the petitioner''s wife will never be redressed and the steps taken against the petitioner by the authorities concerned will not only ruin the petitioner but in turn the entire family. It was the duty of the authorities concerned to effect a reconciliation by persuasion or otherwise so that good sense might have prevailed upon the petitioner. The respondents could have asked the petitioner to ear mark a part of the salary for the maintenance of the wife and children and allowing the petitioner''s wife and children to draw the ration themselves. The steps taken by the respondents in dismissing the petitioner will cause unprecedented hardship and distress which perhaps the petitioner''s wife also did not visually when she made the complaint.
7. On the facts and in the circumstances of this case the petitioner cannot be charged with gross misconduct unbecoming of a police officer involving moral turpitude. In the result the order of dismissal is set aside. The petitioner is entitled to all the remuneration which he would have earned had he been permitted to work. Since the petitioner was wrongfully prevented from discharging his duties as a public servant, he will be, entitled to all the benefits as provided under the relevant rules. This order will not however prevent the respondents to proceed against the petitioner in accordance with law. The respondents will be at liberty to allow the petitioner''s wife and children to draw the ration against the ration cards meant for the petitioner''s wife and children. The respondents will also pay to the petitioner''s wife such maintenance as may be directed by the Sub-Divisional Judicial Magistrate Katwa out of the salary payable to the petitioner. It may be recorded that, Mr. Bhattacheriee appearing for the respondents has very fairly submitted that on the -peculiar facts of this case he does not seriously oppose to the order of dismissal being set aside.
Let a plain copy of this order counter-signed by the Assistant Registrar (Court) be given to the learned Advocate for the petitioner.
