Extramarital affair not a reason to sack police officer, says Gujarat High Court

The Gujarat High Court said that extramarital relationships may be considered immoral by the society but they cannot be labelled as “misconduct".

The Gujarat High Court has observed that while an extramarital relationship can be seen as "an immoral act" from the society's standpoint, it cannot be considered "misconduct" and a reason to sack a policeman under the police service rules.

Justice Sangeeta Vishen of the Gujarat High Court, made this observation while quashing the order to dismiss a police constable and directing the Ahmedabad police to reappoint him within a month and pay 25 percent of back wages since November 2013 when he was sacked from service.

The order, which was passed on February 8, was made available recently. The constable had moved a plea challenging his dismissal from service for having an extramarital affair with a widow at the police headquarters in the city where he lived with his family.

"It is true that the petitioner is a part of a disciplined force, however, his act which otherwise is immoral in the eyes of the society at large, would be difficult for this court to bring it within the purview of misconduct, considering the fact that the act was a private affair and not result of any coercion pressure or exploitation," the court said in the order.

It added: "Applying the aforesaid principles to the facts of the present case, the act on the part of the petitioner at the most, can be considered as immoral act, viewed from the standpoint of the society; however, to term it as misconduct as per the Conduct Rules, 1971, would be too far-fetched.”

The constable, in his plea, had argued that the relationship was consensual and both he and the woman had confessed in the statement that they were having an affair and everything was done of their own volition.

The petitioner claimed that there was no question of him exploiting the woman. He further alleged that the police department had not followed the proper procedure of inquiry, as a ground to quash and set aside the order dismissing him.

The widow's family had in 2012 complained to the top brass of the city police about the illicit relationship of the constable with the woman after producing evidence in the form of CCTV camera footage.

The couple admitted to the relationship, after which the police sent him a show-cause notice and dismissed him from service in 2013 on the ground of "moral turpitude" amounting to erosion of public faith in the police.

While sacking him, the joint police commissioner observed in his order that the constable's duty was to provide safety to women, children and elders, but he had instead "indulged in the act of exploitation of a widow and therefore, has committed the misconduct of moral turpitude".

The senior official had stated that the constable's continuation in the department is likely to hurt the trust of the public and the police department. The officer also deemed fit not to conduct an inquiry against him, as this will put the parties in embarrassing position.

The court observed that this cannot not be the ground for not conducting an inquiry before arriving at the decision of sacking him, and that such observation by the authority is nothing but an empty formality. This is also a reason for the order of sacking him to be quashed and set aside.