1. The petitioner is the widow of the late Mahesh Chand, a dismissed Constable of the Police, who seeks to challenge the dismissal of her deceased husband from service and its affirmation in departmental appeal and revision.

2. The petitioner's husband, the late Mahesh Chand, was recruited in the Civil Police in the year 2006. She and Mahesh Chand were married on 24.06.2007, according to Hindu rites. In the year 2007, he was removed from service in consequence of a general order passed by the Government in the recruitment matter, but reinstated in service in the year 2009, after Supreme Court's judgment. The petitioner, Smt. Madhu Yadav, moved an application on 09.06.2009 before the Senior Superintendent of Police, Aligarh, saying that she was married to Mahesh Chand on 24.06.2007, according to Hindu rites, but Mahesh Chand had married another woman by the name 'X'. She said in her complaint that she had lodged a First Information Report1 against her husband, giving rise to Case Crime No. 121 of 2008, under Sections 498A, 323, 506, 494 of the Indian Penal Code, 18602.

3. After investigation, a charge-sheet was said to be submitted against Mahesh Chand. A preliminary inquiry in the matter was conducted by the Circle Officer, Civil Lines, Aligarh. The Circle Officer found evidence against Mahesh Chand. On the basis of the preliminary inquiry report, the Senior Superintendent of Police, Aligarh decided to initiate departmental proceedings against Mahesh Chand under Rule 14(1) of the Uttar Pradesh Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 19913. The departmental inquiry was entrusted to the Circle Officer, City-II, Aligarh. The petitioner, Smt. Madhu Yadav and her father, Mahendra Pal Singh were examined on behalf of the Establishment. They supported the allegations against the late Mahesh Chand. In the departmental inquiry, the petitioner was held guilty and recommendation made for dismissal from service.

4. The Senior Superintendent of Police, Aligarh issued a show-cause notice dated 05.02.2010 along with a copy of the inquiry report, which was received by the late Mahesh Chand on 26.02.2010. The Constable was granted fifteen days' time to submit his reply to the show-cause, which he chose not to do. The Senior Superintendent of Police, accordingly, dismissed him from service vide an order dated 19.06.2010. The deceased constable then preferred an appeal to the Deputy Inspector General of Police, Aligarh Range, Aligarh. The appeal was dismissed on 08.11.2010. Mahesh Chand carried a revision to the Additional Director General of Police, Uttar Pradesh, Lucknow, which was rejected by means of an order dated 30.08.2011.

5. Mahesh Chand died on 17.06.2014. After his demise, the petitioner, that is to say, Smt. Madhu Yadav, his wife, filed a writ petition before this Court, being Writ-A No. 43101 of 2014, with a case that the revision preferred by her late husband to the Additional Director General of Police is still pending and may be directed to be decided. The aforesaid writ petition was disposed of by this Court vide an order dated 22.08.2014, directing the Additional Director General of Police to decide the revision against the order dated 08.11.2010 in accordance with law, expeditiously and preferably within a period of three months from the date of production of a certified copy of the order, along with a photostat copy of the memo of revision before the officer seized of the revision.

6. It was the respondents' case that the revision was already decided by the Additional Director General of Police, Lucknow vide an order dated 30.08.2011. So, a communication in this regard was made by the Senior Superintendent of Police, Aligarh on 30.10.2014, communicating the revisional order to the petitioner. In fact, in the order dated 30.10.2014, it was mentioned that a copy of the revisional order dated 30.08.2011 was communicated to the deceased constable at his address of permanent residence, but he was not found there. The Senior Superintendent of Police has mentioned that the order was communicated through a constable, Rajbir Singh, from the Police Lines, Aligarh. He affixed the order on the wall of Mahesh Chand's residence in the presence of his father and two residents of the village. At this stage, when the petitioner was communicated with a copy of the revisional order dated 30.08.2011 passed during the lifetime of her husband by the Senior Superintendent of Police, Aligarh, in consequence of the directions issued by this Court on the assumption that it was not decided. The petitioner moved this Court through the present writ petition, for the first time, challenging the orders of dismissal from service passed against her late husband and its affirmation in departmental appeal and revision.

7. It is not in dispute that the petitioner's husband never challenged the revisional order dated 30.08.2011, or the order of dismissal, or for that matter, the appellate order before this Court during his lifetime. He lived a little shy of two years after the revisional order was made, but never chose to challenge it. This petition was entertained by an order dated 11.12.2014, when a notice of motion was issued, asking the respondents to file a counter affidavit. In course of time, a counter affidavit dated 26.03.2015 was filed on behalf of the respondents and a supplementary affidavit dated 31.08.2015 was filed on behalf of the petitioner. A rejoinder affidavit was filed by the petitioner on 31.08.2015. A supplementary counter affidavit dated 22.09.2018 was filed on behalf of respondent No. 4. Much later when the petition came up before the Court in the month of May, 2023, still at the admission stage, another supplementary affidavit was filed by the petitioner dated 22.05.2023. In answer to this affidavit, a supplementary counter affidavit dated 28.08.2023 was filed. With exchange of so much of pleadings, except the supplementary counter affidavit last filed, which came in later on, this petition was admitted to hearing on 05.07.2023. The matter was heard on 24.07.2023, 07.08.2023, 21.08.2023 and lastly, on 06.10.2023, when judgment was reserved.

8. Heard Mr. Pradeep Kumar Dwivedi, learned Counsel for the petitioner and Mr. Girijesh Kumar Tripathi, learned Additional Chief Standing Counsel appearing on behalf of respondent No. 1.

9. The petitioner was charge-sheeted on a solitary charge, which, from a perusal of the inquiry report dated 27.01.2010, is found to read as follows :

10. The charge against deceased, on the basis of which the inquiry proceeded, on a reading of it, appears to be inchoate and inconsequential, but later on, in the proceedings and in the inquiry report, the conclusion drawn is that the deceased, by indulging in an illicit relationship while married to the petitioner, has led to the image of the police force being adversely affected in the eyes of the public and his conduct is one unbecoming of a member of a disciplined force. It is for the said reason that the learned Counsel for the petitioner has relied upon the judgement of this Court in Kuber Singh v. State of U.P. and others4 to submit that there was no charge of solemnizing a bigamous marriage against the late Mahesh Chand in violation of Rule 29 of the Uttar Pradesh Government Servants Conduct Rules, 19565. In Kuber Singh (supra) reliance was placed on a Bench decision of this Court in Shahjahan Khan v. State of Uttar Pradesh and others to more or less conclude that adultery was not defined as "misconduct" under the Rules of 1956. To add to it, Kuber Singh has reasoned that adultery is no longer a crime, after the decision of the Constitution Bench of the Supreme Court in Joseph Shine v. Union of India (2019) 2 SCC 39. Learned Counsel for the petitioner has heavily relied on the decision in Kuber Singh to say that there was, in the end, on all facts proved, no case of misconduct made out against the deceased constable, for which he could validly be dismissed from service.

11. To the contrary, Mr. Girijesh Kumar Tripathi, learned Additional Chief Standing Counsel submits that this is a case where the petitioner ought not to be granted relief, for reason that equity heavily weighs against her. He further submits that the petitioner is disentitled to relief on the principle of approbate and reprobate. Mr. Tripathi submits that the petitioner, in equity, is not entitled to challenge the impugned orders, even if she is in law. Mahesh Chand, when alive, had suffered the impugned order, with the exhaustion of his last departmental remedy, that is to say, the revision being turned down on 30.08.2011. He lived for a period as long as three years approximately, but never challenged the orders impugned in his lifetime. Mr. Tripathi submits that it has to be borne in mind that it was the petitioner who was the person setting into motion the process of disciplinary proceedings against Mahesh Chand, her husband. It is emphasized that she supported the charges against her deceased husband before the Inquiry Officer, leading to findings against him, on the foot of which, the departmental authorities have passed the orders impugned. Now that he is dead, three years after his demise, the petitioner has instituted this writ petition, seeking to impugn the orders of dismissal from service that were passed against Mahesh Chand at her instance, because it is she who would now benefit from the orders being quashed. Mr. Girijesh Kumar Tripathi points out that not only has the petitioner sought quashing of the orders of dismissal from service passed against Mahesh Chand and the approval thereof by the Appellate and Revisional Authorities, but also has further sought a mandamus to consider her claim for compassionate appointment. He says, therefore, that the petitioner, in fact, is a person who seeks to approbate and reprobate for her benefit. In addition, Mr. Girijesh Kumar Tripathi places reliance upon decision of this Court in Ex-Constable Kishori Lal Sharma v. U.P. Public Service Tribunal and others 2004 (2) AWC 1434 : (2004) 2 UPLBEC 1201 and another decision of this Court in Prem Chandra v. State of U.P. 

12. Upon hearing learned Counsel for the parties, as already remarked, this Court finds that the charge is somewhat awkwardly worded, towards the close of the report, the late Mahesh Chand has been held guilty of conduct unbecoming of a member of a disciplined force by indulging in an illicit relationship with a woman, while married to the petitioner. The inquiry report also shows that at the hearing before the Inquiry Officer, the deceased, Mahesh Chand, had not filed any written statement, but the Inquiry Officer, adopting a procedure countenanced by law and proceeded ex-parte. He called witnesses for the Establishment. The first date fixed before the Inquiry Officer was 30.11.2009, when no witness or the complainant appeared. It also appears that the date for hearing before the Inquiry Officer on 30.11.2009 was fixed by a notice bearing number 6 of 2009 dated 23.11.2009, sent to both parties. On 30.11.2009, the proceedings of the inquiry were adjourned to 07.12.2009 and both sides were informed. On the adjourned date, Mahendra Pal Singh, a witness for the Establishment, appeared along with the petitioner as the other witness in support of the charge. Still another witness who appeared for the Establishment was Satya Prakash, a Deputy Superintendent of Police. On the said date also, the petitioner did not appear.

13. The testimony of witnesses for the Establishment were recorded by the Inquiry Officer. The first to depose was Mahendra Pal Sharma. He testified to the fact of the petitioner's marriage with the deceased, Mahesh Chand, on 24.06.2007, according to Hindu rites. He then testified to the fact that his son-in-law, Mahesh Chand, had indulged in illicit relations with a certain woman, whom he named with her parentage and residence and said that the said woman would stay with his son-in-law as a second wife. No maintenance was being paid to his daughter. There is also a mention in his testimony to the registration of a case against the deceased by this witness, giving rise to Crime No. 121 of 2008, under Sections 498A, 323, 506, 494 of the Penal Code and Section 3/4 of the Dowry Prohibition Act, 1961, Police Station Merapur, District Farrukhabad, wherein, after investigation, a charge-sheet had been filed in Court. There is testimony further to the effect that the proceedings were impugned before this Court and got referred to the Mediation Centre. Here, it is also said in this witness's testimony that the deceased had tricked his daughter into entering a settlement and an undertaking not to proceed against him in the present inquiry, but, later on, there was no change in his behaviour. The deceased still stays with the other woman at some unknown place. He still tortures the witness's daughter, that is to say, the petitioner. The witness demanded that in order to render justice to him, the deceased should be dismissed from service.

14. A further perusal of the inquiry report shows that the next witness to be examined before the Inquiry Officer was the petitioner herself. She testified to her marriage with the deceased and the fact that just two months into their matrimony, her husband had entered into an illicit relationship with a named woman, with whom he was carrying on, for 1½-2 years past. She also reiterated the fact about her being tricked into a compromise not to pursue these proceedings, but later on the deceased did not reform and stays with the other woman. The petitioner said that the deceased tortures her. She also said that after taking necessary legal proceedings against her husband, she be given justice. The Inquiry Officer then recorded that since the deceased was not present he could not cross examine the witnesses or make his submissions.

15. The last witness to be called on behalf of the Establishment was Satya Prakash, the Deputy Superintendent of Police and an Assistant Commandant with the 15th Battalion of the Provincial Armed Constabulary. He was the officer who had held the preliminary inquiry against the deceased and submitted the preliminary inquiry report dated 09.08.2009, on the foot of which, the disciplinary proceedings were drawn. He proved his report and other facts mentioned in the inquiry report. This witness was also not cross examined because the deceased was not present.

16. Later it seems that the deceased appeared before the Inquiry Officer and testified that he was married to the petitioner. He said that he would stay with his wife and rent a premises at Aligarh, where he would stay with her. He also said that he and his wife would file for a compromise in all pending cases. There is now no dispute between parties. He also stated that in future, he would never torture his wife. The deceased was cross examined by the petitioner herself and her father. The following questions were put to the deceased by the petitioner :

17. The petitioner, virtually, by her prowess at cross examination, made the deceased say that he was living in adultery with another woman and would not do so in future. The petitioner made the deceased confess to the charge. It was on these facts that the Inquiry Officer concluded against the deceased and held him guilty of indulging in conduct unbecoming of a member a disciplined force, that led to the image of the Police force being adversely affected in the eyes of the general public. Towards the conclusion of the inquiry report, the Inquiry Officer, who was a Circle Officer of the Police, has made quaint remarks. He has said :

18. Now, it is not the law that the Inquiry Officer ought even to recommend punishment to be imposed. Here the Inquiry Officer has not only held the petitioner guilty of the charge which was well within his province, but also said that he recommends the petitioner's dismissal from service and that his order would be "effective from the date of consent of the Senior Superintendent of Police". This part of the inquiry report is indeed something which is absolutely perverse and without jurisdiction. But, the event in the disciplinary proceedings has not turned upon this piece of his ignorance that the Inquiry Officer has introduced to the record. The substance of the findings that the Inquiry Officer has otherwise recorded is based on sound evidence produced by the Establishment, particularly, the testimony of witnesses, which includes the petitioner.

19. There could still be an area of doubt about the findings of the Inquiry Officer, because the question of the deceased staying in adultery with another woman might be a fact to which the witnesses of fact, to wit, the petitioner and her father, would not have had any direct knowledge, except hearsay, suspicion or circumstantial inferences. The clincher, nevertheless, came from the petitioner herself, when, by the dexterity of her cross examination, she made the deceased confess to the fact that he was staying in adultery with another woman, whom he named. The questions are recorded verbatim by the Inquiry Officer. It is on the foot of these findings that the impugned order of dismissal was passed by the Senior Superintendent of Police and upheld in appeal and revision.

20. This Court was minded to look into the validity of those orders as well, but what cannot be ignored is the well settled principle that in order to be entitled to the issue of a writ under Article 226 of the Constitution, the petitioner must not only establish his/her right in law, but also a case in equity. In this connection, reference may be made to the Bench decision of this Court in Dukh Haran Verma v. State of U.P. and others (2004) 2 AWC 1147. In Dukh Haran Verma (supra) it was observed :

"4. It must be remembered that writ is discretionary remedy vide Chandra Singh v. State of Rajasthan, 2003 (3) SCCD 1078 : JT 2003 (6) SC 20. In a writ petition the petitioner has not only to show violation of law, he must also show that equity is in his favour. Thus, to obtain a writ the petitioner must satisfy the Court about both law and equity. If the petitioner has only satisfied the Court that the law has been violated but equity is not in his favour the Court shall not issue a writ.

5. In the present case, admittedly the resolution for no-confidence was passed by ⅔rd of the members of the Board of Directors of the Bank as required by Rule 460. Hence assuming that initiation of the proceedings by means of the notice was bad as the notice was not valid yet the resolution has validly been passed by ⅔rd members of the Board of Directors of the Bank. It must be remembered that if ⅔rd members of the Board are against the petitioner then as provided under the Rules he has to quit his office."

21. The principle has been wholesomely approved by the Supreme Court in Central Council for Research in Ayurvedic Sciences and another v. Bikartan Das and others where it is held :

52. The second cardinal principle of exercise of extraordinary jurisdiction under Article 226 of the Constitution is that in a given case, even if some action or order challenged in the writ petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the parties. Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the writ court, exercising this flexible power to pass such orders as public interest dictates & equity projects. The legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law, it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations, not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable consideration and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render the High Court a normal court of appeal which it is not.

22. Here what this Court finds from the sequence of events is that the petitioner, for her part, while the deceased was alive, was prosecuting both the criminal matter and the disciplinary proceedings, charging him inter alia with a case of living in adultery, while being married to her. She reported him to the Police, supported her First Information Report leading to the institution of criminal proceedings against the deceased for the offence of adultery punishable under Section 494 of the Penal Code. If that too were discounted, the proceedings that she now impugns, commenced on her complaint to the Senior Superintendent of Police, Aligarh. She pursued her complaint in the preliminary inquiry, leading to the initiation of disciplinary proceedings. Before the Inquiry Officer, the petitioner testified as an Establishment witness, supporting the charge of adulterous conduct by her husband, the deceased constable. Her father too testified in support of the Establishment's case. We have already noticed that the petitioner cross examined the deceased, when he testified in his defence, though without a written statement, and made him confess to the charge of adultery before the Inquiry Officer. It was as a result of whatever proof the petitioner mustered against the deceased in disciplinary inquiry that the orders impugned were passed, dismissing the late constable, her husband, from service.

23. The deceased filed a departmental appeal and revision, both of which were filed during his lifetime. The last departmental remedy was a revision, which was exhausted while Mahesh Chand was alive. The revision preferred by the late constable was dismissed by the Additional Director General of Police vide order dated 30.08.2011. Mahesh Chand passed away on 17.06.2014, two months shy of three years after the date that his last departmental remedy had ended in failure. During his lifetime, he never challenged the order of dismissal or its affirmation by the higher departmental fora before this Court or any other judicial forum.

24. After Mahesh Chand's demise, the deceased seems to have worked with much machination. The revisional order had been served on the deceased by pasting a copy of the order on the wall of his residence in the presence of his father and two witnesses. The enthusiasm with which the petitioner was pursuing proceedings against the deceased, it is hard to believe that she would not have known the fate of his revision. Nevertheless, she moved this Court, saying that the revision was still pending. She made this Court pass orders directing a decision of the deceased's revision, which, by then, had already been decided. The Senior Superintendent of Police, Aligarh vide his communication dated 20.10.2014, recounted the entire calender of events and said that the revision had been decided way back on 30.08.2011. Apparently, this device was resorted to overcome laches on the petitioner's part, or so she might have thought. Even if this vantage of looking at the matter is ignored, the fact remains that it was the petitioner who moved the entire process against the deceased, leading to his dismissal from service. Now, in the present writ petition she has come up with a prayer, apart from seeking quashing of the orders of dismissal passed against her late husband, that she be given compassionate appointment. This is, without doubt, telltale of the petitioner's unholy motives in moving this Court, a year after her husband's demise and four years after her husband lost his remedy before the departmental forum. Indeed this is a case where the petitioner has approbated and reprobated. She now assails the orders passed by the Departmental Authorities on grounds that there is no evidence regarding a second marriage solemnized by her husband, in the absence of which, he could not be punished with dismissal from service. She herself testified against her husband about him living in adultery, if not solemnizing a second marriage and made him confess to it. Now, she seeks to take advantage of the subtle distinction between a charge of adultery and bigamy, placing reliance upon the authority of this Court in Kuber Singh. Kuber Singh, no doubt, drew a distinction between the charge of adultery and bigamy, holding that it was bigamy that was punishable as a misconduct under the Rules of 1956. But Kuber Singh was a case which did not rest, as the learned Judge has chosen to describe it "on an allegation of adultery but solely on an alleged violation of Rule 29 of the 1956 Rules". This is not the case here. The charge here, to begin with, is one based on amorous indiscretion and adultery, howsoever awkwardly worded the charge might have been. The further remark in Kuber Singh on which the learned Counsel for the petitioner has much harped upon that adultery is no longer an offence in view of the Constitution Bench decision of the Supreme Court in Joseph Shine (supra) would also be of no avail to the petitioner, for the reason that while adultery may no longer be a criminal offence, but would still be a service misconduct, particularly, in the terms the charge is cast. In the opinion of this Court, therefore, the decision in Kuber Singh, does not, at all, come to the petitioner's rescue.

25. Therefore, quite apart from the legal validity of the proceedings taken against the petitioner's deceased-husband and the orders made against him, given all the facts noticed hereinabove, regarding the petitioner's action in reporting her husband to the Departmental Authorities on a misconduct of adultery etc. and pursuing it to the hilt, in the considered opinion of this Court, disentitle her to seek equitable relief by now turning around and doing a somersault.

26. In the result, there is no force in this writ petition. It fails and stands dismissed.

27. Costs easy.

28. Let a copy of this order be communicated to the Commissioner of Police, Aligarh by the office within a fortnight.