(Prayer: Writ Petition is filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus to call for the production of the records relating to the order of removal from service passed by the 2nd respondent dated 26.02.2018 made in Ref.No.31144/SC1/2/2014 as confirmed by the 1st respondent in his order dated 15.10.2018 made in GO.(D).No.1797,  Health and Family Welfare Department, quash the same and direct t respondents to reinstate the petitioner in service with continuity, back wages and all other attendant benefits.)

1. Heard the learned counsel for the petitioner and the learned Government Advocate appearing for the respondents and perused the materials available on record.

2. The petitioner by the present writ petition avers that the second respondent without considering the scope and applicability of Rule 19 of the Tamil Nadu Government Servant Conduct Rules,1973 (in short ‘Conduct Rules, 1973) had initiated disciplinary action and issued proceedings dated 26.02.2018 imposing the punishment/penalty of removal from service under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal Rules 1955) (in short 'TNDA Rules 1955'); and that the first respondent had also summarily rejected her appeal by the impugned order dated 15.10.2018 without considering the grounds raised in the appeal in correct and proper perspective.

3. The brief facts of the case of the petitioner is that she was appoint as Staff Nurse in Government Hospital, Thirukazhukundram in Kancheepuram District in the year 2007 on contract basis and was brought into regular service as staff nurse in regular pay scale w.e.f. 30.07.2009; that she had applied for medical leave from 17.03.2011 to 06.06.2011 (for 82 days); that the aforesaid leave was not regularized by the second respondent in spite of she submitting a representation dated 09.12.2014; that aggrieved by the aforesaid inaction she had approached this Court by filing writ petition in W.P.No.1579 of 2015 seeking direction to the second respondent to consider and pass orders on her representation, with regard to the regularisation of the leave period; that this Court by order dated 05.06.2015 directed the second respondent to consider her representation dated 09.12.2014 and pass appropriate orders within a period of eight(8) weeks; that the second respondent did not pass orders as directed by this Court, stating that disciplinary proceedings are pending against her on a complaint given by one Tmt.V.Sujatha; and that the regularisation of leave period will be considered after finalisation of disciplinary proceedings; and that the same was informed by the 3rd respondent vide proceedings dated 01.10.2015.

4. The petitioner contends that the second respondent had initiated disciplinary proceedings against her based on the complaint given by one Tmt.V.Sujatha, claiming that she had married o Thiru.Vijayavelu, working as Scientific Officer in Indira Gandhi Centre for Atomic Research at Kalpakkam; that out of their wedlock, a female child was born to them; that the marital life of Sujatha was not smooth and happy with her husband Vijayavelu; and that her husband Vijayavelu filed O.P.No.2634 of 2006 for divorce before the Family Court and the same is pending.

5. The petitioner also contended that in the meantime Tmt.V.Sujatha who had lodged a complaint against her, had filed C.C.No.592 of 2012 on 22.08.2011 before the XVIII Metropolitan Magistrate Court, Saidapet, Chennai under Section 494, 495 and 116 of IPC against her husband Vijayavelu and her alleging that the petitioner herein had developed illicit intimacy with her husband and got married unlawfully and are living together; and that as a result of the petitioner's unlawful marriage with her husband, a child was born on 18.03.2011.

6. The petitioner further averred that V.Sujatha had alleged that the birth certificate issued by the Avadi Municipality, mentions the name of her husband Vijayavelu as father and the petitioner herein as the mother of the child born on 18.03.2011; and that the petitioner being a Government employee had misconduct herself by contracting the marriage with her husband Vijayavelu, who has a spouse living; and that according to the Conduct Rules 1973, female Government servant shall marry any person who has a wife living without first obtaining the permission of the Government; and thus, the petitioner had acted in flagrant violation of the conduct rules and wanted departmental action to be taken.

7. It is the further case of the petitioner that based on the aforesaid complaint lodged by Tmt.V.Sujatha, the second respondent has initiated proceedings under Rule 17(b) of TNDA Rules and issued notice dated 09.09.2014 enclosing therewith article of charge in Annexure I, evidence in support of charge framed in Annexure II, list of documents in support of charges framed against the petitioner in Annexure III and list of witnesses whose evidence is to be considered in support of the charges framed in Annexure IV and called upon the petitioner to submit explanation within 15 days; that she had submitted her explanation to the same on 16.10.2014 denying the charge; that the rule under which the respondent intend to proceed against her does not apply to the female Government servant; that the second respondent not being satisfied with her explanation appointed an Enquiry Officer to conduct enquiry into the charges framed against her and based on the enquiry report dated 25.09.2017, wherein, it was held that the charges were proved, was called upon to submit her further explanation; that she had submitted her further explanation on 29.11.2017; and that the seco respondent thereafter had passed order dated 26.02.2018 holding that she had committed misconduct and violated Rule 19(2) of the Conduct Rules, 1973 and awarded punishment of removal from service.

8. The petitioner further contended that aggrieved by the aforesaid order of the second respondent awarding punishment of removal from service, she had availed the remedy of appeal before the first respondent by submitting an appeal on 17.04.2018, wherein, she had taken a specific plea that the complainant i.e., Tmt.V.Sujatha, except alleging she having married her husband Vijayavelu, did not prove the factum of marriage both in enquiry as well as in criminal proceedings initiated by her before the competent Court of criminal jurisdiction and as such, the order passed by the second respondent visiting her with punishment of removal from service is liable to be set aside; that she was also not given opportunity to cross examine Tmt. V.Sujatha in the enquiry proceedings; and that the first respondent without considering the said grounds taken by her in appeal and without passing speaking order had rejected her appeal summarily.

9. It is also contended by the petitioner that even if she had any illicit relationship with Vijayavelu, the husband of the complainant and having mentioned his name as father of the child born to them, the same is h personal life and would have no bearing in discharge of duties for the respondent to initiate action alleging violation of conduct rules for them to award punishment of removal from service.

10. Contending as above, reliance is placed on the following decisions:

               i). Ram Lal vs. State of Rajasthan and others - CDJ 2023 SC 1109

               ii) Gore Lal Verma vs. State of U.P and Others - CDJ 2021 All HC 531

               iii) Pravina Solanki vs. State of U.P - CDJ 2001 All HC 412

11. Counter affidavit on behalf of the first respondent is filed.

12. On behalf of the respondents, it is mainly contended that one Tmt.Sujatha w/o Vijayavelu submitted a complaint claiming that the petitioner herein while working at Government Hospital, Thirukazhukundram gave birth to a baby through her husband Thiru.Vijayavelu illegally; and that the enquiry revealed that the petitioner herein had given the name of her husband as Thiru.Ranganath in the service Register, whereas in the birth certificate of her child, the father's name is mentioned as Thiru.Vijayavelu, i.e., the complainant's husband and sought for initiating necessary disciplinary actio that based on the aforesaid complaint, the respondents have initiated disciplinary action under Rule 17(b) of TNDA Rules, against the petitioner herein for violating Conduct Rules 1973, that the second respondent issued charge memo dated 09.09.2013; that considering the explanation submitted by the petitioner not being satisfactory, the 3rd respondent Joint Director of Health Services, Villupuram was appointed as Enquiry Officer to conduct enquiry into the articles of charge; that the Enquiry Officer had conducted enquiry by following all the norms and submitted his Report holding that the charges framed against the petitioner as proved; and that the copy of the Enquiry Report was communicated to the petitioner for her explanation; that the petitioner submitted her further explanation dated 29.11.2017; and that the second respondent by considering the enquiry report and the further explanation submitted by the petitioner, having regard to the Conduct Rules, 1973 and taking note of the misconduct of the petitioner had issued proceedings dated 26.02.2018, by which, the petitioner was awarded punishment of removal from service for having violated Rule 19(2) of the Conduct Rules 1973.

13. On behalf of the respondents, it is also contended that aggrieved by the aforesaid order of the second respondent, the petitioner preferred an appeal to the first respondent; and that the first respondent having found the app petition of the petitioner as devoid of merit and dismissed the same in G.O.(D).No.1797, Health and Family Welfare, dated 15.10.2018.

14. It is further contended by the respondents that though the petitioner had applied for leave between 17.03.2011 to 06.06.2011, the said leave period was not regularised since, Tmt.V.Sujatha w/o Vijayavelu gave a complaint/petition that the petitioner while working at Government Hospital gave birth to the child through illegal relationship with the complainant's husband Vijayavelu and it is only during the said leave period, the petitioner had delivered the baby; that the fact finding enquiry conducted, revealed that the petitioner at the time of joining into service on 09.05.2007 as contract Staff Nurse had mentioned her husband name as Thiru. Ranganath in the service register, whereas in the birth certificate issued on 14.11.2011 of baby V.Mohathi, the name of the father was mentioned as Thiru.Vijayavelu and mother name as Tmt.Nithyakalyani (i.e.., the petitioner herein); and thus, the aforesaid act of the petitioner would amount to act of involving in moral turpitude, thereby, violating Rule 19(2) of Conduct Rule 1973, attracting Rule 17(b) of the TNDA Rules, 1955.

15. The respondent further contended that the petitioner never disclo the fact of she having taken divorce from her husband Ranganathan in the year 2008 to the respondent, while had mentioned the name of Thiru.Vijayavelu in the birth certificate in respect of the daughter born through her on 18.03.2011, and the same was revealed by the petitioner herself in the course of enquiry.

16. On behalf of the respondent, it is also contended that the act of the petitioner admitting to giving birth to a child through another person without marriage would amount to her involving in the act of moral turpitude, attracting Rule 19(2) of Conduct Rules, causing embarrassment or may bring discredit to Government, which the petitioner is required to maintain while in service.

17. On behalf of the respondent, it is also contended that due to the aforesaid acts of the petitioner violating Rule 19 (2) of the Conduct Rules, the same would amount to misconduct, and not being able to discharge her duties with devotion, warranting initiation of disciplinary action under Rule 17(b) of the TNDA Rules.

18. On behalf of the respondent, it is also contended that since, the petitioner had taken the same stand in her reply to the notice issued by the second respondent and also before the Enquiry Officer in the enq proceedings and also in the further explanation, the first respondent did not find any merit in her appeal and rejected the same accordingly.

19. In so far as the claim of the petitioner of not being granted opportunity for cross examination, it is contended that the petitioner having signed the proceedings before the Enquiry Officer of she being granted sufficient opportunity, the plea taken after submission of enquiry Report is only invented to drag on the proceedings as the petitioner did not take any such objection before the Enquiry Officer.

20. Contending as above, the respondents seek for dismissal of the writ petition.

21. I have taken note of the respective contentions urged.

22. At the outset, it is recorded that though the petitioner had raised the plea of Rule 19 of Conduct Rules, 1973 do not apply to women on account of the language used, the petitioner did not urge the said ground while arguing the present writ petition. Thus, this Court is not required to consider whether t Rule is gender neutral or not.

23. On behalf of the petitioner, it is also contended that the petitioner begetting a child on 18.03.2011 is her personal affair, admittedly, the child begotten by the petitioner is not in her normal way of matrimonial life but admittedly by having a illicit relationship with one Vijayavelu who is the husband of the complainant V.Sujatha whose marriage, on the day when the petitioner begot her child was subsisting. Thus, the petitioner cannot claim that begetting a child outside the wedlock to be a moral act or her private affair for the respondent to ignore the same.

24. Further, the petitioner being a Government servant, is bound by the conduct rules, which prohibits contracting the marriage with a person having a spouse, unless the same is permissible under personal law applicable for a Government servant to enter into a such contract of marriage. Since, the petitioner being a Government servant is bound by the conduct rules, it is not open for the petitioner to claim that having entering into bigamous marriage or begetting children through a bigamous marriage or what in present days being propagated as a live-in relationship, to claim that the same are relating to her private life and no action can be taken under the Rules.

25. The purport and intent behind the framing of these rules and making them applicable to Government servant is that, the Government servant enjoys a special position in the society as the face of the Government and it is for the said reason in exercise of power conferred under Article 309 of Constitution of India, the Government had framed Conduct Rules, 1973 by repealing, revising, reissued Conduct Rules in the year 1960.

26. It may not be out of context to note Rule 19 originally i.e., before framing of 1973 Rules dealt only with contracting the marriage with a person having a spouse living, while Sub Clause 2 prohibiting a Government Servant involving himself in an act of moral turpitude, including unlawful act which may cause embarrassment or which may give discredit to the Government was included in the Conduct Rule 1973 under G.O.Ms.No.2226, P & AR (A) Department dated 18.08.1973.

27. Thus, reading of Rule 19 of the Conduct Rule 1973 would go to show that the same has two parts, while the first part deals with the contracting a marriage with a person having living spouse, which is considered as bigamous marriage, the second part is silent with regard to contracting a marriage but deals with an act which would amount to moral turpitude. Thus, the Rule 19 covers two eventualities i.e., i) contracting bigamous marriage a ii) involving in an act of moral turpitude as noted herein above.

28. Though it is vehemently contended by the petitioner that the factum of her marriage with Thiru. Vijayavelu not being proved by the complainant and as such, Rule 19 dealing with bigamous marriage cannot be invoked by the respondents for initiating disciplinary proceedings, as noted herein above, Sub Rule 1 of Rule 19 deals with contracting marriage, while Sub Rule 2 is silent on the aspect of marriage but only deals with act of involving moral turpitude.

29. Though much emphasis has been made by the petitioner on the heading of Rule 19, it is to be noted that while interpreting the Rule, what is to be looked into the substance over the form. If one takes note of the above, the Sub Rule 2 of Rule 19 is to be considered as an independent Rule dealing with acts involving mortal turpitude.

30. Thus, in the facts of the present case, what is to be considered is whether the act of petitioner begetting the child through Vijayavelu who has a a living spouse can be considered as an act involving moral turpitude or not.

31. The term 'moral turpitude' has not been defined under the Rul However, what would amount to 'moral turpitude' has been detailed by the Hon'ble Apex Court in various decisions and reference may be made to the Judgment rendered in the case of Pavan Kumar vs. State of Haryana reported in (1996) 4 SCC 17 has held as follows:

               “Moral turpitude” is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, or depraved or having any connection showing depravity.”

32. Further, the Madhya Pradesh High Court in the case of Manoj Choure vs. State of Madhya Pradesh and others reported in 2023 SCC Online MP 7153 had observed that the term 'moral turpitude' is a vague term having different meanings in different contexts. The term has a general meaning that is contrary to justice, honesty, modesty or good morals in contrary to what a man oust to the society in general.

33. This Court, in one of the earliest decisions in the case of State of Tamil Nadu v. P.M. Belliappa reported in 1984 SCC OnLine Mad 62 observed that in a challenge to initiation of disciplinary proceedings under Rule 19 (2) of Conduct Rules, 1973, that the expression 'moral turpitude' or delinquency are not to receive a narrow construction and it would inclu conduct contrary to, and opposed to good morals.

34. If one takes note of the meaning of the word 'moral turpitude' as explained in various decisions of the Hon'ble Apex Court and High Courts, the act of petitioner begetting a child through Vijayavelu on 18.03.2011 which fact stands proved as per the birth certificate and the petitioner having failed to disprove the said fact, in the enquiry proceedings, the act of the petitioner would have to be construed as involving 'moral turpitude'.

35. The petitioner being a Government servant cannot claim such act to be private affair or her constitutional right, so long as she continues to be Government Servant, during which time she is bound by Conduct Rules, 1973. Thus, the act of petitioner begetting a child through Thiru.Vijayavelu being opposed to societal norms would have to be considered as an act of involving “moral turpitude”.

36. Though, it is contended by the petitioner that only when an act involving “moral turpitude” causes embarrassment or brings discredit to Government, action can be initiated, it is to be noted that the fact of Tmt.V.Sujatha lodging a complaint with respondent for initiating disciplinary action and also initiating criminal action against her husband and the petitio herein by showing her working as staff nurse with the respondent has invariably caused embarrassment to the Government, as one of its employee / servant is having illicit intimacy with a man and begetting a child is to considered as involving act of “moral turpitude”. [See – Sushil Kumar Singhal V. Punjab National Bank – (2010) 8 SCC 573]

37. Further, this Court in the case of P. Selvarajan v. Registrar, High Court Madras reported in 1994 SCC Online Mad 581 dealing with disciplinary action taken under Rule 19 of Conduct Rules 1973 had held as under:

               “19. It should not be forgotten that under Section 114 of the Evidence Act, there is a presumption of marriage from long cohabitation. It has been held so by a Division Bench of this Court in Seerangammal (Died) v. E.B. Venkatasubramanian, (1987) 100 Mad LW 58. In fact, the Division Bench, ink the abovementioned cases, has held that failure to establish by legal evidence about ceremonies was due to the fact that they took place inside the family house. In that case, it has been held that the failure to sustain a form of marriage attempted would not act as a bar against the appellant therein, from invoking Section 114 of the Evidence Act. In such circumstances, the Division Bench, in the above mentioned case, held as follows:— (at page 68)

               “………Yet another plea of defendants is that marriage ceremony as claimed in para 12 of plaint having not been established, the presumption under S. 114 of the Evidence Act cannot exist. Failure to establish by legal evidence about ceremonies was due to the fact that they took place inside the family house and in the presence of selected relatives and well wishers of Ranganatha. To prevent publicity and with an obvious aim of preventing prestige, secrecy had been maintained. No invitations were printed. Under such circumstances her inability to prove the marriage and more so when Ranganatha's relations who could alone speak about it are antagonistic and aim at getting at the property; this failure to sustain a form of marriage attempted by her would not act as a bar against her from invoking S. 114 of Evidence Act. This is neither a conflicting nor an alternative plea not forth, by one mode of proof adduced but not established due to special circumstances obtaining when such acts are committed by men aimed at benefiting themselves. Factum of continued cohabitation as husband and wife to the knowledge of the world thus made out, the failure to prove marriage would not stand in the way or presumption being drawn”

               20. It is apt to refer the decision in Hoovayya Kanthappa Shetty v. Renuka S. Shetty, AIR 1984 Bom 229, wherein it has been held that there is legal presumption in favour of marriage and legitimacy and the burden of proving a fact existing otherwise is on the party who challenged the marriage between two persons and the legitimacy of the children born of such marriage. In the case of Ningu Vithu v. Sadashiv Ningu, AIR 1987 Bom 27, at page 31, it has been held as follows:—

               “………I am of the opinion that in well organised orderly and civilised society like ours which is not of loose and uncertain moral, the institution of marriage occupies an important place and plays a very vital role in the process of development of human personality. We have definite views and strong convictions about marital relations. The law as to presumption in favour of marriage under Sections 50 and 114 of the Evidence Act is well crystallised. Thus when a man and a woman live together as husband and wife for sufficiently long time and were treated as husband and wife by friends, relatives and neighbours there is always a presumption in favour of their marriage. If children are born to such a couple, there is a further presumption in favour of their legitimacy. The presumption in favour of marriage does not get mitigated or weakened merely because there may not be positive evidence of any marriage having taken place. But if there is some evidence on record that the couple had gone through some form of marriage, the presumption gets strengthened. Therefore, though marriage ceremony said to have taken place may not be valid, the marriage can be held to be valid by force of habit and repute and the onus of rebutting such a marriage would be on the person who denies the marriage. It may also be stated here that this presumption of law in favour of marriage and legitimacy is not to be repelled lightly by mere balance of probability. The evidence for should be strong, satisfactory and conclusive. If the presumption is permitted to be reputed lightly, the weaker and vulnerable sections of the society viz, the women and the children could be the victims of the vagaries of uncertainties as to their positions and status in life. This would be very much detrimental in the development of their human personality. They would be the worst suffers in the society……”

               21. On the facts of the case, it is very clear from the evidence adduced by witnesses, that the petitioners were together, and this has been satisfactorily spoken to by PW4. In such circumstances, I do not think that it is possible for this Court to re-appreciate the evidence in a case like this and arrive at a different conclusion. In Union of India v. H.C. Goel, AIR 1964 SC 364 at p. 369. it has been held by the Supreme Court, as follows:—

               “……………In exercising its jurisdiction under Art. 226 on such a plea, the High Court cannot consider the question about the sufficiency or adequacy of evidence in support of a particular conclusion. That is a matter which is within the competence of the authority which deals with the question; but the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence it stands and only examine whether on that evidence illegally impugned conclusion follows or not……”

               22. Applying this test, I am inclined to hold that the charges framed against the petitioners stand proved and I find no infirmity in the orders which are challenged in these writ petitions.

               24. In so far as the punishment had been imposed, as per the provisions of Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, this Court cannot come to the conclusion that the punishment awarded on the petitioners in excessive. For the reasons stated above, I find no merits in the writ petitions. Accordingly, both the writ petitions shall stand dismissed. No costs.

38. Even in the facts of the present case, as the factum of petitioner involving herself in act of “moral turpitude” being proved beyond doubt, the contention advanced by the petitioner of the said act being in private life and not affecting her discharge of duties does not merit consideration, as the petitioner is bound to conduct herself in a manner befitting her employment as a Government servant maintaining morals expected of her.

39. Considering that the charge against the petitioner stands proved and the disciplinary authority taking note of the proved charge having awarded the punishment to the petitioner and the petitioner also having availed the remedy of appeal to the first respondent and the first respondent also having not found any reason to interfere with the order of the disciplinary authority, this Court in a challenge under Article 226 cannot take up re-appreciation or re-evaluation of evidence which has been considered by the disciplinary authority while awarding punishment. The interference of a writ Court against the action the disciplinary authority as affirmed by the appellate authority is limited, i.e., only when i)the punishment awarded shocks the conscience of the Court, ii) the authority passing the order lacks jurisdiction, and iii) the order being in violation of principles of natural justice.

40. In the facts of the present case as noted herein above, none of the three conditions stand attracted for the petitioner to claim that this Court can consider her challenge to the said proceedings in a writ petition filed under Article 226 of Constitution of India. (See : Union of India vs. P.Gunasekaran - (2015) 2 SCC 610; Union of Inida vs. Subrata Nath - 2022 SCC Online SC 1617; Indian Oil Corporation vs. Ajit Kumar Singh – (2023) 19 SCC 102)

41. In so far as, the reliance placed on the decisions of the Allahabad High Court are concerned firstly, the same would be of persuasive value and secondly, the Division Bench of this Court in Belliappa as well as Selvarajan cases (cited supra), since, this Court having decided the applicability of rule, the said decisions bind this Court.

42. In so far as, the reliance placed on the decision of the Hon'ble Apex Court in the case of Ram Lal vs. State of Rajasthan (supra), the charge against the petitioner therein was with regard to the alteration of Date of Birth in t mark sheet for which, criminal proceedings have been initiated which resulted in acquittal and the Hon'ble Supreme Court taking note of the acquittal in criminal proceedings, in exercise of discretion conferred under Article 142 of Constitution of India had granted the relief. Since, this Court do not have discretionary power similar to Article 142, the said decision would not advance the case of the petitioner.

43. Though the petitioner while submitting translated copies of the material papers had filed order of acquittal in Cr.A.No.265 of 2023 which originally did not form part of the original typed set and having been pushed into this Court subsequently without seeking leave of the Court, it is to be noted that the order in Cr.A.No.265 of 2023 is a subsequent development i.e., on 27.03.2024 and cannot be considered in relation to proceedings that were passed earlier.

44. Further, a perusal of the order of acquittal in Criminal Appeal would also show that the acquittal recorded is on account of a compromise and not a honorary acquittal for the petitioner to rely on the same to claim that the allegation of violation of Rule 19 stands disproved. On the other hand, the compromise as taken note in criminal appeal would only goes to prove the factum of violation of Rule 19 (2) of the Conduct Rules, 1973 by the begetti a child through Vijayavel who at the relevant point of time was having a living spouse, thereby, the said act of the petitioner amounts to an act involving “moral turpitude”.

45. Thus, this Court is of the considered view that the order of the 2nd respondent dated 26.02.2018 awarding punishment / penalty to petitioner of “Removal from Service” under Rule 17(b) of TNDA Rules, 1955 for violating Rule 19(2) of the Service Rules, 1973, and the order of the 1st respondent dated 15.10.2018 confirming the same does not call for any interference.

46. Accordingly, the writ petition is dismissed. No costs.