Holding

The compulsory retirement of the officer was upheld as valid, because his conduct amounted to misconduct involving moral turpitude and unbecoming conduct, and the procedure under Section 19 and Rule 16 was properly followed.

Summary

M.M. Malhotra, a permanent commission officer of the Indian Air Force, was married to Roopa (Ruby) Malhotra under Hindu rites. The complainant alleged that Malhotra had an illicit relationship and had contracted a second marriage with Miss Anna Suja John, and that he brutally tortured Roopa. A disciplinary enquiry led to a show‑cause notice under Section 19 of the Air Force Act, 1950 read with Rule 16 of the Air Force Rules, 1969, and the officer was compulsorily retired. The High Court upheld the retirement and the officer appealed to the Supreme Court. The Court examined whether the alleged second marriage constituted a "plural marriage" given that the first marriage was declared void under the Hindu Marriage Act, and whether the retirement order was valid without a court‑martial, observing that the officer’s conduct amounted to misconduct involving moral turpitude and unbecoming conduct under Sections 45 and 46 of the Act. Applying the principles of natural justice under Rule 16 and finding the punishment not disproportionate, the Court dismissed the appeal and affirmed the compulsory retirement.

Issues considered

Whether the alleged second marriage constituted a plural marriage when the first marriage was void under the Hindu Marriage Act.
Whether the order of compulsory retirement under Section 19 of the Air Force Act, 1950, was valid without a court‑martial.
Whether the procedural requirements of Rule 16 of the Air Force Rules, 1969, including natural justice, were complied with.
Whether the punishment imposed was disproportionate to the misconduct alleged.

Legislation cited

Air Force Act, 1950s. 18, s. 19, s. 45, s. 46
Air Force Rules, 1969s. Rule 16
Army Act, 1950s. 19
Army Rules, 1954s. Rule 14
Central Civil Services (Conduct) Rules, 1964s. Rule 3
Hindu Marriage Act, 1955s. 11, s. 16, s. 5(i)

Subjects

Air Force ActCompulsory retirementMisconductMoral turpitudeUnbecoming conductSection 19Rule 16Natural justicePlural marriageHindu Marriage ActVoid marriageDisciplinary proceedingsCourt‑martialMilitary law

Judgment

A M.M. MALHOTRA
v.
UNION OF INDIA AND ORS.

OCTOBER 4, 2005

B [ARIJIT PASAYAT AND H.K. SEMA, JJ.]

Military Law:

Air Force Act, 1950:
c
Section 19-Termination of service by Central Government-Moral
turpitude-Air Force Officer married complainant as per Hindu rites-
Complainant lodged a complaint alleging that the said Officer had illicit
relation with a woman and had also tortured her brutally-Said Officer was
D compulsorily retired from service on the ground that trial by Court Martial
was inexpedient and impractical-High Court upheld the order of compulsory
retirement-Correctness of-Held: Any act ofmisconduct ofan Officer involving
moral turpitude and/or amounting to an offence could be dealt with
administratively under Ss. 18 and 19 or by way of disciplinary action-
However, while dealing with the matter under S. 19 principle of natural justice
E as contemplated in R. 16 has to be followed-Jn the instant case, trial by
Court Martial neither expedient nor practical and, therefore, order of
compulsory retirement justified-Air Force Rules, 1969, R. 16-Regulations
for the Air Force, 1964, Para 667 (b).

Section 45-Unbecoming conduct-Air Force Officer tortured a woman
F brutally-Officer compulsorily retired from service-Correctness of-Held:
Use ofcriminal force against a woman is an act unbecoming of an Officer and
is an offence under S. 45-Hence, order of compulsory retirement justified

Hindu Marriage Act, 1955:

G Section 16-Void and voidable marriages-Legitimacy of children of-
Held: legitimacy of the paternity of a child born out of a void marriage is
upheld-However, similar protection is not extended to the mother of the
child

H 1~6
M.M. MALHOTRA v. U.0.1. 1027
Words & Phrases: A
"Misconduct"-Meaning of

The appellant was appointed to the permanent commission as a Pilot
Officer in the Indian Air Force. The appellant married the complainant
as per Hindu rites. The complainant lodged a complaint with the Chief of B
Air Staff alleging that the appellant had illicit relations with a woman and
had also tortured her brutally. It was also alleged in the complaint that
the appellant had contracted a plural marriage with the said woman. The
appellant filed a suit for a declaration that the complaint was not his wife
as her spouse was living on the date they started living as husband and C
wife. The suit was decreed.

The appellant was compulsorily retired from service under Section
19 of the Air Force Act, 1950 read with Rule 16 of the Air Force Rules,
1969 as his conduct was unbecoming of an Air Force Officer in terms of
Section 45 of the Act. The Chief of Air Staff was also of the opinion that D
trial by Court Martial was neither expedient nor practical. The High Court
upheld the order of compulsory retirement. Hence the appeal.

Dismissing the appeal, the Court

HELD: 1.1. It was the complainant who alleged that during the E
subsistence of the appellant's marriage with her he had contracted another
marriage with a woman. But the fact remains that there is a decision
rendered by a court of competent jurisdiction to the effect that the
marriage of the complainant was subsisting at the time when the appellant
undisputedly married her. Nobody has questioned the correctness of the
said decision. [1034-F-G[ F

1.2. The effect of the decree passed is that the marriage with the
complainant was void and, therefore, there was no marriage in the eyes
of law. That being so, the appellant's subsequent marriage with another
woman cannot be said to be a case of plural marriage. To that extent the G
appellant is right that the case of "plural marriage" has not been
established. [1034-8-D[

2. While the legislature has considered it advisable to uphold the
legitimacy of the paternity of a child born out of a void marriage under
•. Section 11 of the Hindu Marriage Act, 1955, it has not extended a similar H
1028 SUPREME COURT REPORTS (2005] SUPP. 3 S.C.R.

A protection in r~spect of the mother of the child. '
11036-D-E; 1034-H; 1035-A-Bl

Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, AIR
(1988) SC 644, relied on.

B 3. The appellant's so-called marriage with the complainant was void.
Obviously, therefore, he was staying with the complaint who was not his
wife as husband and wife. If the marriage with another woman was not a
case of plural marriage in view of the subsisting marriage of the complaint
then also question has been rightly raised by the respondents about the
'
c moral conduct of the appellant in living as husband and wife with some
other spouse during the subsistence of the complainant's marriage. The
decision to order compulsory retirement was taken additionally for acts
involving moral turpitude. The High Court has highlighted several aspects
as to how the appellant was treating the complainant with cruelty and
torturing her. It has highlighted as to how such acts were prejudicial to
D good order and Air Force discipline. Use of criminal force against a woman
is an act unbecoming of an officer and is an offence under Section 45 of
the Air Force Act, 1950. [1036-F-H; 1037-A-Bl

4. Under the Scheme of the Air Force Act, 1950 and the Air Force
Rules, 1969 any act of misconduct of an officer involving moral turpitude
E and/or amounting to an offence can be dealt with in two ways. It can be
by way of disciplinary action i.e. Summary Disposal of Charges and Court
Martial or administratively under Sections 18 and 19 of the Act. While
dealing with the matter under Section 19 of the Act, the procedure
contained in Rule 16 of the Rules has to be followed. This Rule incorporates
F principles of natural justice i.e. issuance of show-cause notice and
consideration of the reply. Para 667(b) of the Regulations for Air Force,
1964 no doubt stipulates initiation of action on the part of the
Commanding Officer to bring the offender to trial by Court Martial. In
a given case, however, considering the nature of the accusations and the
type of evidence a decision can be taken to deal with the case
G administratively in terms of Rule 16(4) of the Rules. In the instant case it
was concluded that it would neither be expedient nor practicable to have
trial by Court Martial and, therefore, the action was taken by
departmental proceedings. [1037-G-H; 1038-A-Bl

Union of India v. Capt. S. K. Rao, 119721 1 SCC 144, relied on.
H • .•
.
M.M. MALHOTRA v. U.0.1. 1029
5. The residual question is whether there is a need for remand to A
the authorities to reconsider the question of punishment once it is held
that plural marriage was not established. Normally, when the foundation
for an order is partially held not in accordance with law, reconsideration
of the quantum of punishment can be directed. But that is not the
invariable rule. If the court on considering the material before it concludes B
that the punishment awarded is not shockingly disproportionate it can
maintain the order. In the instance case, the findings of the disciplinary
authority show as to how the acts of the appellant were clearly unbecoming
of a member of a disciplined force and his continuance would be
prejudicial to good order and discipline. [1039-A-BJ
c
6. The range of activities which may amount to acts which are
inconsistent with the interest of public service and not befitting the status,
position and dignity of a public servant are so varied that it would be
impossible for the employer to exhaustively enumerate such acts and treat
the categories 0 f .misconduct as closed. It has, therefore, to be noted that
1
D
the word "misconduct" is not capable of a precise definition. But at the
same time though incapable of a precise definition, the word "misconduct"
on reflection receives its connotation from the context, the delinquency in
performance and its effect on the discipline and the nature of the duty.
The act complained of must bear a forbidden quality or character and its
ambit has to be construed with reference to the subject matter and the E
context wherein the term occurs, having regard to the scope of the statute
and the public purpose it seeks to serve. [1039-F-GJ

Union of India v. Harjeet Singh Sandhu, [2001[ 5 SCC 593, Baldev
Singh Gandhi v. State of Punjab, [2002) 3 SCC 667 and State of Punjab v.
Ram Singh, AIR 1992 SC 2188, relied on.
F

Batt's Law of Master and Servant 4th Edn., p. 63 and Ballentine's Law
... Dictionary J48th Edn., referred to.

7. In the past also the appellant's conduct was found to be G
objectionable. He was tried for general court martial on a charge of using
improperly a travel voucher of another officer's wife for his wife's travel.
He was awarded sentence of 12 months' forfeiture of service for the
purpose of promotion and severe remand. He was also awarded severe
displeasure for a period of eighteen months for making false allegations
against superior officers and misbehaving with canteen sales girl. Though H
1030 SUPREME COURT REPORTS [2005) SUPP. 3 S.C.R.

A these were not factors which weighed with the authorities in passing the
.
order of compulsory retirement yet it throws light on desirability to retain
the officer in service. On the facts of the present case the order of
compulsory retirement cannot be said to be one which is shockingly
disproportionate to warrant interference. [1040-G-H; 1041-A-BJ

B CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5185 of2001.

From the Judgment and Order dated 7.12.99 of the Bombay High Court
in W.P. No. 827 of 1994.

Appellant-In-person.
c
K.P. Pathak, Additional Solicitor General, Rudeshwar Singh, Mrs. Anil
Katiyar and Shreekant N. Terdal for the Respondents.

The Judgment of the Court was delivered by
D ARIJIT PASAYAT, J. Appellant calls in question legality of the
judgment rendered by a Division Bench of the Bombay High Court (Nagpur
Bench) dismissing the writ petition filed by him holding that the order of
compulsory retirement passed by the authorities was in order.

E The background facts leading to the passing of the order of compulsory
retirement are as under:-

Appellant was appointed to the permanent Commission as a Pilot Officer
in the Logistics Branch of Indian Air Force on 14.4.1973. Prior to his posting
at Nagpur vide order d·ated 17.11.1990 he was posted at Trivandrum since
F 28.10.1987. During tenure of his service in the Indian Air Force, the appellant
was posted at Leh in Laddakh, Nal in Rajasthan and few other places.

Appellant was married to Mrs. Roopa Malhotra on 19.10.1973 as per r
Hindu rites. The marriage was also registered with the Registrar of Marriage
on 5.9.1974. On 21.3.1992, Mrs. Roopa Malhotra lodged a complaint with
G the then Chief of the Air Staff against mis-deeds of the appellant and prayed
for maintenance as well as appropriate action against him. In the said complaint
Mrs. Roopa Malhotra (described for convenience as 'complainant') stated
that in the year 1990, she came to know that the appellant had developed
illicit relations with one Miss Anna Suja John when he was posted at
H Trivandrum. She strongly objected to their illicit relations and on account of
~
M.M. MALHOTRA v. U.0.1. [PASAYAT,J.] 1031
that, the appellant started torturing her brutally. The appellant was posted at A
Nagpur on 12.11.1990. The complainant also came to Nagpur from Ambala
and started residing with the appellant at Nagpur. Since 1991, appellant started
asking complainant for mutual divorce. However, she did not agree for the
same. The appellant started beating her brutally and torturing her mercilessly
because of Miss Anna Suja John. It was further stated in the complaint that B
in the year 1991 itself, Miss Anna Suja John came to Nagpur and started
staying with the appellant and complainant Mrs. Roopa Malhotra at their
residence at Nagpur. The complainant strongly objected to this and requested
the appellant not to have any relationship with Miss Anna Suja John and told
her to leave Nagpur. When complainant could not bear the torture, she sought
an interview with the then Air Marshal I.G. Krishna, HQ Maintenance C
Command, Indian Air Force and narrated her plight to him. Younger brother
of the appellant came to Nagpur and told the complainant that if she files a
complaint against her husband, his career would be spoiled. He also promised
that Miss Anna Suja John would go back to Kerala. However, it was noticed
by the complainant that the situation did not improve and appellant continued D
his illicit relations with the other woman i.e. Miss Anna Suja John. When the
complainant had gone to Kanpur she saw Miss Anna Suja John with her child
residing in the parental house of the appellant at Kanpur. At that time, she
realized that she had been cheated by the appellant as well as his brother. The
appellant abused the complainant in front of Miss Anna Suja John in filthy E
language. When they were at Kanpur, appellant and Miss Anna Suja John
used to sleep in one room and complainant was asked to sleep in another
room. At Kanpur, the appellant told the complainant that he and Miss Anna
Suja John are married. While they were at Kanpur, appellant and Miss Anna
Suja John were behaving as husband and wife and going to hotels and various
other places together. The same thing continued at Nagpur. The complainant F
tried her best to keep her nineteen years' old marriage intact. However, it
became impossible for the complainant to survive in that situation. The
appellant stopped providing her basic amenities, which are necessary for
survival of an individual. The appellant in spite of being allotted official
residence in Vayu Sena Nagar, Nagpur started residing in rented G
accommodation in Nagpur along with Miss Anna Suja John as husband and
wife. The physical and mental torture continued to increase alarmingly and
life of the complainant became hell and, therefore, she was constrained to file
the above referred complaint.

On the basis of the said complaint, on or about 8.4.1992, the Court of H
1032 SUPREME COURT REPORTS (2005] SUPP. 3 S.C.R.

A Enquiry was initiated against the appellant by the concerned autho_rity. During
pendency of the enquiry, a detailed statement of complainant-Mrs. Roopa
Malhotra was recorded by the Enquiry Officer in which she gave mmute
details and sequence of events and under what circumstances she was
constrained to file the complaint dated 21.3.1992 to the Chief of Air Staff.
B The Enquiry Officer also examined Shri V.K. Grover, Wing Commander as
an independent witness, who was also asked to conduct investigation regarding
allegations made by complainant Mrs. Roopa Malhotra against the appellant.
The report in this regard was submitted by Shri Grover. The appellant had
also taken part in the Court of Enquiry.

C After conclusion of the Court of Enquiry on 22.5.1993, entire material
along with reports was forwarded to the Chief of the Air Staff and after
considering these reports, Chief of the Air Staff was of the opinion that trial
of the Officer by the Court Martial is inexpedient, but retention of such
Officer in service is undesirable and, therefore, show-cause notice dated
D 10.9.1992 was issued to the appellant by which he was called upon to show-
cause as to why he should not be dismissed/removed from service under
Section 19 of the Air Force Act, 1950 (in short the 'Act') read with Rule 16
of the Air Force Rules, 1969. The charges levelled in the show-cause notice
against the appellant on the basis of which proposed action was contemplated
are as follows:
E
(i) illicit relations of appellant with Miss Anna Suja John and ill-
treatment meted out and criminal force used by the appellant to
complainant Mrs. Roopa Malhotra as per complaint dated 21.3.1992;

(ii) the appellant had contracted "plural marriage" with Miss Anna
F Suja John, which is contrary to para 578 of the Regulations for the
Air Force (Revised Edition), 1964, and birth of a child out of the said
illegal wedlock;

(iii) though appellant was posted at Nagpur with effect from
12.11.1990 and was allotted an official accommodation at House
G No.95/2, instead of staying with the family in the said accommodation,
he had taken on rent of rupees two thousand one hundred per month
a house 'Ram Raksha' at N-5 Lakshmi Nagar, Nagpur and was staying
with said Miss Anna Suja John as husband and wife;

(iv) when appellant's legally wedded wife Mrs. Roopa Malhotra
H
•
M.M. MALHOTRA v. U.0.1. [PASAYA T, J.] 1033
•
objected to his behaviour, appellant used criminal force on her by A
slapping, kicking and beating her on numerous occasions. The
appellant had also demanded mutual divorce and on refusal by her to
agree to the same, appellant physically and mentally tortured her,
deprived her of basic amenities and refused to give her sufficient
subsistence allowance for her survival and the behaviour and conduct B
of the appellant was most unbecoming of an Air Force Officer.

The appellant submitted his reply and requested to keep the show-cause
in abeyance in view of clause 578(g) of the Regulations of Air Force (Revised
Edition), 1964 and further requested for grant of time to file reply. Time was
prayed for till 21.11.1992. In his letter dated 22.12.1992, allegations of C
malafide were made against the then Air Chief Marshal Shri N.C. Suri as
being instrumental for issuing show-cause notice dated 10.9.1992. In the
communication it was indicated that Mrs. Roopa Malhotra @ Ruby Basu had
filed written statement on I.I 0.1992 in Regular Civil Suit no.887 /1992 filed
by the appellant wherein she had stated that she was already married to one D
DJ. Basu, her husband. The marriage was subsisting at the time when she
married the appellant. It is to be noted that the said suit was filed by the
appellant in the Court of Civil Judge, Senior Division, Nagpur, inter alia, for
a declaration that defendant Roopa was not his wife as her spouse was living
on the date they started living as husband and wife. Suit was decreed on
19.6.1993. It was appellant's stand that in view of the said statement he E
should not be required to submit his explanation in view of Rule 16(4) of the
Rules. The enquiry continued and after a certain stage appellant did not
effectively participate. On consideration of materials, it was observed that
there was irrefutable evidence of plural marriage and disgraceful conduct of
not only sleeping with Miss Anna in the presence of his legally wedded wife, p
but also use of criminal force against his wife. Reference note was submitted
to Ministry of Defence. Finally, the order of compulsory retirement was
passed. Same was challenged before the Bombay High Court, Nagpur Bench.
The High Court noted that the letter dated 22.12.1992 written by the appellant
was totally silent in regard to the name of the person who filed regular civil
suit no.887 /1992, against whom suit was filed, the purpose for which the suit G
was filed and relief sought in the suit. The appellant submitted that there was
no plural marriage as so-called marriage was non existent in the eyes of law.
Since there was no valid marriage at the first instance the question of plural
marriage did not arise. The High Court did not find any substance in the plea
and held that the conduct of the appellant was unbecoming of a member of H
the disciplined force like Air Force. It was held that he was guilty of act
1034 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.
.
A which is prejudicial to the good order and discipline in the Air Force. In any
event it was felt that the conduct of the appellant was certainly deplorable
and the order of compulsory retirement as passed did not suffer from any
infirmity.

In support of the appeal, appellant who appeared in-person submitted
B that the decree passed by the competent court holding that the marriage of
Ruby Basu @ Roopa Malhotra with Mr. D.J. Basu was in existence when the
appellant purportedly entered into marital ties with so-called Roopa Malhotra.
That being so, there was no marriage in the eyes of law. Once a marriage is
declared void it related back to the date of marriage. Further no reason was
c indicated as to why court martial was not held. No fair opportunity was
granted. Certain pages which have been utilized for the purpose of finding •
the appellant guilty were not signed by him as they were not recorded at the
relevant point of time. The appellant had objected to the manner in which the
proceedings were conducted. Reliance was placed on Rule 16 of the Rules.
It was further submitted that if the allegations of plural marriage fail, the
D
foundation on which the order of compulsory retirement was passed loses its
base and, therefore, the High Court was not justified in its conclusion.

In response, learned counsel for the Union of India submitted that the
High Court's judgment highlights various facts which clearly show that the
E continuance of the appellant in the Air Force would be detrimental to the
interest of the force, his acts were clearly unbecoming of a member for
disciplined force and, therefore, the High Court's judgment does not warrant
Q
any interference.

We shall first deal with the question as to whether there was a plural
F marriage. The factual scenario is very confusing. It was Roopa Malhotra who
alleged that during the subsistence of the appellant's marriage with her he
had conducted another marriage with Miss Anna Suja John. But the fact
remains that there is a decision rendered by a competent jurisdiction to the
effect that the marriage of Ruby Basu @ Roopa Malhotra was subsisting at
G the time when the appellant undisputedly married her. Nobody has questioned
correctness of the said decision.

For appreciating the status of a Hindu woman marrying a Hindu male
with a living spouse some of the provisions of the Hindu Marriage Act. 1955
(hereinafter referred to as the 'Marriage Act') have to be examined. Section
H 11 of the Marriage Act declares such a marriage as null and void in the
..
M.M. MALHOTRA v. U.0.1. [PASAYAT, J.] 1035
....
following tenns: A
11. Void marriages. - Any marriage solemnized after the
commencement of this Act shall be null and void and may, on a
petition presented by either party thereto against the other party, be
so declared by a decree of nullity if it contravenes any one of the
conditions specified in clauses (i), (iv) and (v) of Section 5''. B
Clause (i) of Section 5 lays down, for a lawful marriage, the necessary
condition that neither party shou Id have a spouse living at the time of the
marriage. A marriage in contravention of this condition, therefore, is null and
void. By reason of the overriding effect of the Marriage Act as mentioned in
section 4, no aid can be taken of the earlier Hindu law or any custom or C
usage as a part of that law inconsistent with any provision of the Act. So far
as Section 12 is concerned, it is confined to other categories of marriages and
is not applicable to one solemnised in violation of Section 5(i) of the Act.
Sub-section (2) of Section 12 puts further restrictions on such a right. The
cases covered by this section are not void ab initio, and unless all the conditions D
mentioned therein are fulfilled and the aggrieved party exercises the right to
avoid it, the same continues to be effective. The marriages covered by Section
11 are void ipso jure, that is, void from the very inception, and have to be
ignored as not existing in law at all if and when such a question arises.
Although the section permits a formal declaration to be made on the
presentation of a petition, it is not essential to obtain in advance such a E
formal declaration from a court in a proceeding specifically commenced for
the purpose. The provisions of Section 16, which is quoted below, also throw
light on this aspect :

16. Legitimacy of children of void and voidable marriages:-
F·
(I) Notwithstanding that a marriage is null and void under Section
11, any child of such marriage who would have been legitimate if the
marriage had been valid, shall be legitimate, whether such child is
born before or after the commencement of Marriage Laws
(Amendment) Act, 1976 (68 of 1976), and whether or not a decree G
of nullity is granted in respect of that marriage under this Act and
whether or not the marriage is held to be void otherwise than on a
petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable
marriage under Section I 2, any child begotten or conceived before H
1036 SUPREME COURT REPORTS [2005) SUPP. 3 S.C.R.
...
A the decree is made, who would have been the legitimate child of the
parties to the marriage if at the date of the decree it had been dissolved
instead of being annulled, shall be deemed to be their legitimate child
notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub-section (2) shall be
B construed as conferring upon any child of a marriage which is .null
and void or which is annulled by a decree of nullity under Section 12,
any rights in or to the property of any person, other than the parents,
in any case where, but for the passing of this Act, such child would
have been incapable of possessing or acquiring any such rights by
reason of his not being the legitimate child of his parents.
c
Sub-section (!), by using the words underlined above clearly implies
that a void marriage can be held to be so without a prior formal declaration
by a court in a proceeding. While dealing with cases covered by Section 12,
sub-section (2) refers to a decree of nullity as an essential condition and sub-
section (3) prominently brings out the basic difference in the character of
D
void and voidable marriages as covered respectively by Sections 11 and 12.
It is also to be seen that while the legislature has considered it advisable to
uphold the legitimacy of the paternity of a child born out of a void marriage,.
it has not extended a similar protection in respect of the mother of the child.
The marriage of the appellant must, therefore, be treated as null and void
E from its very inception.

The above position was highlighted in Smt. Yamunabai Anantrao Adhav
v. Anantro Shivram Adhav and Anr., (AIR) 1988 SC 644.

The effect of the decree passed is that the marriage with Roopa Malhotra
F @ Ruby Basu was void and, therefore, there was no marriage in the eyes of
law. That being so, the appellant's subsequent marriage with Miss Anna Suja
John cannot be said to be case of plural marriage. To that extent the appellant
is right in his submission that the case of "plural marriage" has .not been
established. But that is not the end of the matter. Even if it is so, his so-called
marriage with Roopa Malhotra was void. Obviously, therefore, he was staying
G with Roopa who was not his wife as husband and wife. If marriage with Miss
Anna Suja John was not a case of plural marriage in view of the subsisting
marriage of Ruby Basu @ Roopa Malhotra then also question has been
rightly raised by the learned counsel for the respondents about the moral
conduct of the appellant in living as husband and wife with some other
~
H spouse during subsistence of Roopa @ Ruby's marriage. The decision to
M.M. MALHOTRA v. U.0.1. (PASA YAT, J.) 1037
."
order compulsory retirement was taken additionally for acts involving moral A
turpitude. The High Court has highlighted several aspects as to how the
appellant was treating Roopa Malhotra with cruelty and torturing her. It has
.... highlighted as to how such acts were prejudicial to good order and air force
discipline. Use of criminal force against a woman is an act unbecoming of
an officer and is an offence under Section 45 of the Act. The said provision B
reads as follows:

"45. Unbecoming Conduct: Any Officer or Warrant Officer who
behaves in a manner unbecoming his position and a character expected
from him shall, on conviction by court-martial, if he is an officer, be
liable to be cashiered or to suffer such less punishment as is in this C
Act mentioned; and ifhe is a Warrant Officer, be liable to be dismissed
or to suffer such less punishment as is in this Act mentioned."

Section 46 enumerates certain forms of disgraceful conduct. It reads as
under:

"46. Certain forms of disgraceful conduct - Any person subject to this D
Act who commits any of the following offences, that is to say, -

(a) is guilty of any disgraceful conduct of a cruel, indecent or
unnatural kind; or

(b) malingers, or feigns, or produces disease or infirmity in E
himself, or intentionally delays his cure or aggravates his
disease or infirmity; or

(c) with intent to render himself or any other person unfit for
service, voluntarily causes hurt to himself or that person;
F
shall, on conviction by court-martial, be liable to suffer imprisonment
for a term which may extend to seven years or such less punishment
as is in this Act mentioned."

Under the Scheme of the Act, and the Rules any act of misconduct of
an officer involving moral turpitude and/or amounting to offence can be dealt G
with in two ways. It can be by way of disciplinary action i.e. Summary
Disposal of Charges and Court-Martial or administratively under Sections 18
and 19 of the Act. Whil.e dealing with the matter under Section 19 of the Act,
the procedure"contained in the Rule 16 of the Rules has to be followed. This
• rule incorporates principles of natural justice i.e. issuance of show-cause
H
1038 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.
..
A notice, consideration of reply. Para 667(b) of the Regulations for Air Force,
1964 on which the appellant relies no doubt stipulates initiation of action on
'
the part of the Commanding Officer to bring the offender to trial by the
Court-Martial. In a given case, however, considering the nature of the ,..
accusations and the type of evidence a decision can be taken to deal with the
case administratively in terms of Rule 16(4) of the Rules. In the instant case
B it was concluded that it would neither be expedient nor practicable to have
trial by Court-Martial and, therefore, the action was taken by departmental
proceedings. This Court had occasion to consider an identical provision in
the Army Act, 1950 (in short 'Army Act') and Army Rules, 1954 (in short
'Army Rules'). Constitutional validity of Rule 14 of the Army Rules which
c is on the same line as Rule 16(4) of the Rules was questioned in U,nion •
ofI
India v. Capt. S.K. Rao, [I 972] I SCC 144. The challenge was found
unsustainable. It was, inter alia, observed as follows:

"14. Section 19 itself suggests that there should be rules, and subject
to the provisions of the Act and such rules, the Central Government
D may dismiss or remove from the service any person subject to the
Army Act. Section 191(2)(a) specifically jves power to make a rule
providing for the removal from the servic of persons subject to the
Act. It follows that there may be a valid rule whereunder, subject to
the other provisions of the Act the Central Government may remove
a person from the service. Rule 14 is such a rule; it is, therefore, not
E ultra vires.

15. It was argued that the words "subject to the provisions of this
Act" occurring in Section 19 makes Section 19 subject to Section 45,
and the Central Government has thus no power to remove a person
from the service in derogation of the provisions of Section 45. But
F
the power under Section 19 is an independent power. Although Section
19 uses the words "subject to the provisions of this Act", it speaks of
removal of a person from the service. Section 45 provides that on '
conviction by court-martial an officer is liable to be cashiered or to
suffer such less punishment as is in this Act mentioned. For removal .
G from service under Section 19 of the Army Act read with Rule 14 of
the Army Rules, 1954, a court-martial is not necessary. The two
Section.s 19 and 45 of the Act are, therefore, mutually exclusive."

Above being the position, the appellant's stand that the departmental
proceeding was invalid has to be rejected. ~
H
M.M. MALHOTRA v. U.0.1. [PASAYAT, J.) 1039

The residual question is whether there is need for remand to the A
authorities to re-consider the question of punishment once it is held that
plural marriage was not established. We have given our anxious consideration
to his plea. Normally, when the foundation for an order is partially held not
in accordance with law, reconsideration of the quantum of punishment can be
directed. But that is not the invariable rule. If the Court on considering the
material before it concludes that the punishment awarded is not shockingly B
disproportionate it can maintain the order. In the instant case the findings of
the disciplinary authority show as to how the acts of the appellant were
clearly unbecoming of a member of disciplined force and his continuance
would be prejudicial to good order and discipline.

The Scheme of the disciplinary rules in general is to identify the conduct
c
which is made punishable and then to provide for the various punishments
which may be imposed for the acts which are inconsistent with such conduct.
For example; the Central Civil Services (Conduct) Rules, 1964 contain
provisions which pertain to the standards of conduct which the Government
servant (within the meaning of those rules) are to follow whereas the Central D
Civil Services (Classification, Control and Appeal) Rules, 1965 provide the
punishment or penalties which may be imposed for misconduct. The conduct
rules and the rules for punishment may be provjded in separate rules or
combined into one. Moreover, there are a host of departmental instructions
which elucidate, amplify and provide guidelines regarding the conduct of the E
employees.

The range of activities which may amount to acts which are inconsistent
with the interest of public service and not befitting the status, position and
dignity of a public servant are so varied that it would be impossible for the
employer to exhaustively enumerate such acts and treat the categories of F
misconduct as closed. It has, therefore, to be noted that the word "misconduct"
is not capable of precise definition. But at the same time though incapable of
precise definition, the word "misconduct" on reflection receives its connotation
from the context, the delinquency in performance and its effect on the
discipline and the nature of the duty. The act complained of must bear a
forbidden quality or character and its ambit has to be construed with reference G
to the subject-matter and the context wherein the term occurs, having regard
to the scope of the statute and the public purpose it seeks to ~erve.

In Union of India and Ors. v. Ha1jeet Singh Sandhu, [2001] 5 SCC
593, in the background of Rule 14 of the Army Rules, it was held that any
H·
1040 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A wrongful act or any act of delinquency which may or may not involve moral
turpitude would be "misconduct" under Rule 14.

In Baldev Singh Gandhi v. State of Punnjab and Ors., (2002] 3 SCC
667, it was held that the expression "misconduct" means unlawful behaviour,
misfeasance, wrong conduct, misdemeanour etc.
B
Similarly, in State of Punjab and Ors. v. Ram Singh Ex. Constable,
AIR (1992) SC 2188), it was held that the term "misconduct" may involve
moral turpitude. It must be improper or wrong behaviour, unlawful behaviour,
wilful in character, forbidden act, a transgression of established and definite
rule of action or code of conduct but not mere error of judgment, carelessness
C or negligence in performance of the duty; the act complained of bears forbidden
quality or character.

"Misconduct" as stated in Batt's Law of Master and Servant (4th Edition)
(at page 63) is "comprised positive acts and not mere neglects or failures."
D The definition of the word as given in Ballentine's Law Dictionary (148th
Edition) is "A transgression of some established and definite rule of action,
where no discretion is left except what necessity may demand, it is a violation
of definite law, a forbidden act. It differs from carelessness."

It may be generally stated that the conduct rules of the Government and
E public sector corporations constitute a code of permissible acts and behaviour
of their servants.

The scheme of the Conduct Rules, almost invariably, is to first of all
enunciate a general rule of conduct and behaviour followed by specific
prohibitions and restrictions. For example, Rule 3 of the Central Civil Services
F (Conduct) Rules, 1964 which occurs under the heading "General" provides
that every Government servant shall at all times:

(i) maintain absolute integrity;
(ii) maintain devotion to duty; and
G (iii) do nothing which is unbecoming of a Government servant.

It has been pointed out by learned Additional Solicitor General that in
the past also appellant's conduct was found to be objectionable. He was tried
for general court-martial on a charge of using improperly travel voucher of
H another officer's wife for his wife's travel. He was awarded sentence of 12
M.M. MALHOTRA v. U.0.1. (PASAYAT, J.) 1041
months' forfeiture of service for the purpose of promotion and severe A
reprimand. He was also awarded severe displeasure for a period of eighteen
months w.e.f. 16th September, l 987 for making false allegations against
superior officers and misbehaving with canteen sales girl. Though these were
not factors which weighed with the authorities in passing the order of
compulsory retirement yet it throws light on desirability to retain the officer B
in service. On the facts of the present case the order of compulsory retirement
cannot be said to be one which is shockingly disproportionate to warrant
interference.

While, therefore, holding that the charge of plural marriage has not
been established, yet taking into account the other allegations we do not think C
it a fit case where any interference is called for.

Appeal is dismissed without any order as to costs.

v.s.s . Appeal dismissed.

... •