Adultery as ‘misconduct’

Every civil servant, whether a member of the All India Services (AIS), State Service or Central Service, is governed by a moral code of conduct. Similarly, the conduct of army officers and jawans is administered under the Army Act. While the AIS conduct rules require its members to “maintain absolute integrity and devotion to duty” and do “nothing which is unbecoming of a member of the service”, the Army Act contains penal provisions for displaying “unbecoming conduct” or “disgraceful conduct”. The Central and State Civil Services conduct rules also demand similar integrity from its members. Surprisingly, what exactly constitutes an “unbecoming conduct” or “unbecoming of a member of a service” is nowhere defined. It, therefore, leaves ample scope for the employer or disciplinary authority to use this leverage and set up parameters of misconduct for its subordinates.

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One such conduct, which has been a subject of debate for long, is whether illicit or adulterous relations with another woman or man amounts to misconduct under service rules, particularly after the Supreme Court’s verdict in Joseph Shine vs Union of India (2018). This contention assumes significance in light of the Centre’s application for clarification that the SC’s aforesaid decision on decriminalising adultery under IPC should not apply to the armed forces. Though the matter has been referred to a Constitution Bench, Justice Rohinton Nariman while issuing notice made an observation that “something which is not adultery because the section [497 IPC] has been struck down will still be ‘unbecoming conduct’”. This observation, in fact, is in contrast to the judgments made by various High Courts in the past.

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In 1985, the Calcutta High Court in Rabindra Nath Ghosh (In re) held that a head constable who was living with another woman ignoring his married wife was not guilty of any misconduct in the performance of his duties as a policeman. In State of U.P. vs BN Singh (1989), the Allahabad High Court ruled that in order to bring a case of a government servant within the definition of ‘personal immorality’ on the habit of sex, it must be shown “that this habit of the government servant has reduced his utility as a public servant so as to damage the government or official generally in public esteem”. Justice M. Katju, in Pravina Solanki vs State of U.P. (2001) held that “unless an employee does some act which interferes with his/her official function then ordinarily whatever he/she does in his/her private life cannot be regarded as misconduct”.

More importantly, after the Joseph Shine case, the Rajasthan High Court in Mahesh Chand Sharma vs State of Rajasthan (2019) held that “no employer can be allowed to do moral policing on its employees which go beyond the domain of his public life”. The court said that though adultery is an immoral act and is not to be appreciated, “the same would, however, not be a ground for initiating departmental proceedings by the employer and it be left best for the person who may be affected to take remedy...”.

Ambiguous expressions

When various High Courts have held that the act of adultery is not a sufficient ground to initiate departmental proceeding unless it interferes with an employee’s official functions, the observations of Justice Nariman that the Army Act is “on a different footing” because the expression used is “unbecoming conduct” have, once again, raised the contention between “misconduct” and “immoral act”. Hence, the SC must address expressions such as “unbecoming of a civil servant” or “unbecoming” or “disgraceful” conduct.

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It is understood that “misconduct” is nothing but unlawful behaviour, misfeasance, may involve moral turpitude and must be improper or wrong behaviour, wilful in character. Any government or public authority would want its employees to maintain integrity not only during the discharge of their official duties, but also in the public domain. With such a public policy in place, whether adulterous conduct is sufficient to initiate departmental action is a million-dollar question that the Supreme Court must answer.

The author is a senior IPS officer in Chhattisgarh

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Printable version | Apr 14, 2021 11:53:43 PM |

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