JUDGMENT 1. - The petitioner aggrieved by his discharge from the Indian Air Force, in which he was serving as Corporal, has filed this petition. On 21st Dec. 92 a show cause notice, Annex-P/4 to the petition was issued to the petitioner by the Commanding Officer No. 265 SU, Air Force, calling upon him to show cause as to why administrative action should not be taken against him under Section 20(3) of the Air Force Act for contracting Plural Marriage with Ms. Poonam Agnihotri D/o H.P. Agnihotri on 14th Dec. 91 in New Delhi. In this show cause notice it was alleged that the petitioner was already married to Ms. Gayatri Devi D/o R.K. Pandey before contracting marriage with Ms. Poonam Agnihotri, his marriage with said Ms. Gayatri Devi having been solemnised according to Hindu rites on 10th March, 1991 at Kanpur. It was also pointed out that plural marriages were prohibited under Para 578 of the regulations for the Air Force (RE), 1964. On 4th Jan. 93, the petitioner replied to the aforesaid show cause notice taking a stand that his marriage with Ms. Gayatri Devi was not a legal and valid marriage and was no marriage in the eyes of law, the essential ceremony of Saptapadi was not completed. It was also pointed out that his marriage with Ms. Poonam was contracted after obtaining permission from the Air Force Authorities and afterwards the marriage was duly recorded in the Personal Occurrence Reports maintained by the Air Force. 2. On 2nd Nov. 93, another show cause notice was issued by the Commanding Officer 265 SU, Air Force to the petitioner calling upon him to show cause as to why administrative action of removal from services under Section 20(3) of the Air Force Act, 1950 for contracting plural marriage with Ms. Poonam Agnihotri on 14th Dec. 91 in New Delhi should not be taken against him. It was stated in this notice that a Court of Inquiry conducted at 265 SU, Air Force found that during the subsistence of petitioner's marriage with Ms. Gayatri Devi without obtaining a proper divorce from her, the petitioner got married again to Ms. Poonam Agnihotri which was illegal and contrary to provisions of Para 578 of the Regulations for the Air Force (RE), 1964. On 16th Nov. Gayatri Devi without obtaining a proper divorce from her, the petitioner got married again to Ms. Poonam Agnihotri which was illegal and contrary to provisions of Para 578 of the Regulations for the Air Force (RE), 1964. On 16th Nov. 93, the petitioner filed an, interim reply to the aforesaid show cause notice, challenging the proceedings and the conclusions of the Court of Inquiry. He reiterated that his marriage with Ms. Gayatri Devi was not a marriage in the eyes of law, as the marriage ceremony was not completed in accordance with Hindu rites in terms of Section 7 of the Hindu Marriage Act, 1955. He also asked for a copy of the report of the Court of Inquiry and relevant documents. It was also contended in this interim reply that action under Section 20(3) of the Air Force Act, 1950, could not have been taken without complying with the requisites of Rule 18 of the Air Force Rules, 1969 and if such an action was taken without complying with the requisites of Rule 18 of the Air Force Rules, 1969, it would be against the principles of natural justice. After receiving the proceedings of the Court of Inquiry, the petitioner filed a detailed reply to the show cause notice on 7th Dec., 1993. In this reply, he pointed out to certain legal flaws in the procedure adopted by the Court of Inquiry. According to the petitioner his reply was forwarded to higher authorities by the Commanding Officer, 265, SU, Air Force and thereafter nothing was heard by the petitioner till 31st August, 1994, on which date he was called in the orderly room and apprised that discharge orders in respect of the petitioner had been received from Air Officer in charge, Air Force Record Officer New Delhi and as a consequence Asstt. Adjutant immediately issued the clearance with a direction 'To be cleared within 24 hours'. The petitioner's request for copy of the discharge order was not heeded to, but he was told that discharge has been ordered under Rule 15(2) (g) (ii) of the Rules. 3. The petitioner thereupon approached this Court with this petition. Prayer for an interim stay of the order of discharge was refused, but the case was set out for an early final disposal. The respondents were given time to file reply, but as a reply was not filed, on 15.11.94 cost of Rs. 3. The petitioner thereupon approached this Court with this petition. Prayer for an interim stay of the order of discharge was refused, but the case was set out for an early final disposal. The respondents were given time to file reply, but as a reply was not filed, on 15.11.94 cost of Rs. 4,000/- was imposed as a condition precedent to the taking of reply on record, if filed within two weeks of the 15.11.94. The reply was not filed within time and the costs was also not paid. The case was, therefore, heard without a reply, The respondents, however, were allowed to file certain documents which were necessary for a fair consideration and decision of the case. 4. Sh. S.K. Nanda, learned counsel for the petitioner contended that before passing the impugned orders of discharge reply to the show cause notices given by the petitioner were not considered and no reason for the rejection of the contentions raised in the reply to show cause notices were conveyed to the petitioner. This according to the learned counsel was a clear breach of the principles of natural justice. It was further contended that the action was initiated under Section 20(3) of the Air Force Act, but the discharge was given under Rule 15(2)(g)(ii) of the Air Force Rules. According to the learned counsel an opportunity to show cause as to why the petitioner should not be discharged under Rule 15(2) (g) (ii) should have been given and as it has not been given, the discharge is vitiated. It was also submitted that discharge was unauthorised as the authority empowered to discharge the petitioner under Rule 15(2)(g)(ii) was Air Officer Incharge Personnel and not the Commanding Officer of the Unit. It is further contended that discharge under Rule 15(2)(g)(ii) carries a stigma with it and cannot be called simple discharge. An inquiry has, therefore, to precede such a discharge. It was further contended that despite regulation 578 of the Air Force Regulations, no person could be discharged on the ground of Bigamy without trial by Court Martial. 5. Sh. P.P. Choudhary, learned counsel appearing for the Union of India, submitted that administrative action for plural marriage could be taken under Section 578 without initiating any disciplinary proceedings and independent of any Court Martial proceedings. 5. Sh. P.P. Choudhary, learned counsel appearing for the Union of India, submitted that administrative action for plural marriage could be taken under Section 578 without initiating any disciplinary proceedings and independent of any Court Martial proceedings. According to him action under Section 20(3) of the Air Force Act could also be taken against the petitioner on the ground that he had contracted second marriage during the subsistence of his earlier marriage. According to him a lesser and lenient action under Rule 15(2)(g) (ii) was taken against the petitioner and instead of dismissing him he was discharged. According to him, no notice and inquiry was needed for discharging, the petitioner under Rule 15(2)(g)(ii). 6. I have heard the learned counsel and perused the record. The respondents have produced the order sheets, in which the case of the petitioner was dealt with at Air Headquarter, as Document-R/4. It transpires from these order sheets, that a complaint was received by the Chief of the Air Staff from one Sh. Devendra Nath Pandey, reporting the un-natural death of his niece Gayatri Devi said to be the first wife of the petitioner. In that complaint, it was stated that the petitioner had contracted plural marriage by getting married to Poonam Agnihotri. The case was referred to HQ South Western AIR Command, IAF and in the meanwhile, a case was registered against the petitioner under Section 498-A/304-B of the Indian Penal Code, which was still pending at the time of writing of the note-sheets. However, the investigations were carried by APM No. 4 P&S Unit, in which it was concluded that the petitioner had in fact contracted plural marriage. A show cause notice was, therefore, issued to the petitioner as to why the action be not initiated against him and after he filed a reply, a Court of Inquiry was constituted. As regards the proceedings of the Court of Inquiry, the following observations were made in this note-sheet. "(g) In his statement in the Court of Inquiry, as well as in his statement in reply to the show cause notice after the completion of the Court of Inquiry, Cpl Bajpai has highlighted that at the time of marriage seven phere (bridegroom and the bride going round the sacred fire seven times) are required to be carried out. But because only five phere were completed, his marriage with the Ms. Gayatri Devi was not legal. But because only five phere were completed, his marriage with the Ms. Gayatri Devi was not legal. (h) The Court of Inquiry brings out enough evidence about conduct of marriage including certain marriage ceremonies which are performed after Saptapadi like Sindoor Dan/Mang Bharai. There is, however, some evidence available on record that after the fifth phera the bridegroom developed giddiness and by the time be became all right the specified time of lagna was over. Therefore, the remaining two phere were dispensed with, with the consent of both the pandits and parties. The opinion and recommendation of the AIR Headquarters as incorporated in note-sheet is as under : "(c) Cpl Bajpai has disputed his marriage with Ms. Gayatri Devi only because according to him unless and until seven phere (going round the sacred fire seven times) are completed marriage is not legally complete. (d) Section 7 of Hindu Marriage Act, 1955 provides that a Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party to the marriage. The Section further lays down that where the form adopted includes Saptapadi that is the taking of seven steps by the bridegroom and the bride jointly before the sacred fire the marriage becomes complete when the seventh step is taken. (e) In his reply to the first show cause notice Cpl. Bajpai referred to Saptapadi and not seven phere (going round the sacred fire). (f) Evidence in the Court of Inquiry is not with reference to the number of steps before the sacred fire by the bride and bridegroom but with reference to the number of phere (going round the sacred-fire). Relatives of late Ms. Gayatri Devi as well as the Purohit from bride's side have deposed that seven phere were completed whereas Cpl. Bajpai, his relatives and the Purohit from the bridegroom side have deposed that only five phere were completed." The matter was referred to the Judge Advocate General (AIR) whose opinion as referred to in paragraph 7 of the note-sheet reads as under : "7. The case was referred to Deptt. of JAG(AIR) who have in their opinion to note 32 above, opined that even if the version of the airman and witness in his favour is accepted (only five phere were completed) it can be validly presumed that Cpl, Bajpai was duly married to Ms. Gayatri Devi. The case was referred to Deptt. of JAG(AIR) who have in their opinion to note 32 above, opined that even if the version of the airman and witness in his favour is accepted (only five phere were completed) it can be validly presumed that Cpl, Bajpai was duly married to Ms. Gayatri Devi. They have, however, pointed out that in view of the fact that the Airman was, right from the beginning, opposed to his marriage with Ms. Gayatri Devi and made several attempts to dissuade his parents from finalising it, it appears that the Airman was coerced into this wedlock. Under the circumstances, it is for consideration whether the Airman should be separated on this ground. Alternatively, it may be advisable to follow the recommendations of OC 256 SU, AF and wait for the outcome of the criminal case pending against the Airman." The final recommendation of the Officers dealing with the file was contained in paragraphs 8, 9 and 10 of the note-sheet which are reproduced hereunder "8. With due respect to the opinion of the Deptt. of JAG(AIR) we are of the view that: (a) Unwillingness of Cpl. Bajpai to his marriage with Ms. Gayatri Devi can only be considered in determining whether their marriage was legal or not. (b) Once it is decided that the marriage between Cpl. Bajpai and Ms. Gayatri Devi was not effected by the unwillingness of Cpl. Bajpai and is legal, the fact of his unwillingness cannot have any relevance in deciding upon this course of action on his misconduct of contracting a plural marriage. (c) As a sensible human being if Cpl. Bajpai thought that he has been coerced into marrying Ms. Gayatri Devi or that their marriage was not legal he should also have obtained a divorce or a decree declaring it null and void from the Court. Leaving the first wife at his parents house and getting married to another woman cannot be acceptable in a close knit society like Indian Air Force. (d) The case pending against Cpl, Bajpai and his father pertains to un-natural death of Smt. Gayatri Devi, his first wife. Such a case is not a bar for an action to be taken against the Airman for contracting plural marriage under para 578 of the Regulations for the Air Force, 1964, extracts placed at Encl. (d) The case pending against Cpl, Bajpai and his father pertains to un-natural death of Smt. Gayatri Devi, his first wife. Such a case is not a bar for an action to be taken against the Airman for contracting plural marriage under para 578 of the Regulations for the Air Force, 1964, extracts placed at Encl. 33A, which only bars action if either criminal case or a civil case for plural marriage is pending against the individual. (e) In view of the for going we are of the opinion that Cpl. Bajpai deserves to be disassociated from service in accordance with the existing policy copy placed at Encl. 34-A. 9. In accordance with the existing policy on plural marriage, the Airman and NCs(E) are to be discharged from service under the provisions of Rule 15(2)(g)(ii) of Air Force Rules, 1969 (Services no longer required - unsuitable for detention in Air Force). The authority competent to order discharge under Rule 15(2) (g) (ii) is AOP. 10. In view of the foregoing, it is recommended that 640597 Prakash Babu Bajpai, ADSO, may be discharged from the service under Rule 15(2)(g)(ii) AF Rules, 1969." On this, the Air Officer Personnel directed discharge under Rule 15(2) (g) (ii) of the rules. 7. It is clear from the above that the discharge has been given under Rule 15(2)(g)(ii). The petitioner's services are said to be no longer required because he is considered to be unsuitable for retention in the Air Force. Clearly, the reason for his being found unsuitable is the plural marriage, said to have been contracted by him. The discharge under Rule 15(2)(g)(ii) in this case cannot be said to be a simple discharge as it has been given for a mis-conduct, misdemeanour or commission of an unlawful act by the employee. Such a discharge must be preceded by an inquiry, in which the delinquent employee is given an adequate and proper opportunity to show cause against such discharge being given to him. Show cause notices were issued calling upon the petitioner to show cause as to why action under Section 20(3) of the Air Force Act be not taken against him. At no point of time, the petitioner was called upon to show cause as to why he should not be discharged being unsuitable for retention in the Air Force on the ground of Bigamy. At no point of time, the petitioner was called upon to show cause as to why he should not be discharged being unsuitable for retention in the Air Force on the ground of Bigamy. The action is, therefore, clearly opposed to the principles of natural justice and on this short ground, the order of discharge deserves to be quashed. 8. Even assuming that the show cause notice and the inquiry conducted by the Court of Inquiry was sufficient compliance with the principles of natural justice as it was on the same facts and allegations, in the circumstances of the case, it could not have 'been said that the petitioner had committed Bigamy. The petitioner right from the beginning had contended that he, had not married Gayatri Devi legally and his marriage with Gayatri Devi was not a marriage in the eyes of law, specifically because the Saptapadi was not completed. In a case like this the Departmental Authorities cannot convert themselves in to a Court under the Hindu Marriage Act and declare upon the validity of a particular marriage. They are neither equipped with the expertise to do so nor they have any jurisdiction to grant a decree of declaration of nullity or validity of a Hindu Marriage. In a given case, on the basis of admitted acts or irrefutable evidence of reputation of living together for a long time as husband and wife, or children having born out of the relationship between the parties to a disputed marriage and the like the departmental authorities may be able to prima facie conclude that there was sufficient proof of Bigamy, taking a marriage to be proved on the 'basis of doctrine of Factum-Valet. But in a case where the dispute is as to the existence of a valid marriage, the Departmental authorities have to stay their hands and ask the complainant to get a declaration or an appropriate decree from a Court of Law. They cannot sit in judgment over such matters which really have to be decided by a Court of law. A perusal of the Document R/4 of the Air Headquarter would clearly show that different views were expressed by different officers. They cannot sit in judgment over such matters which really have to be decided by a Court of law. A perusal of the Document R/4 of the Air Headquarter would clearly show that different views were expressed by different officers. According to their own light, they have also ventured into the finer area of law and have dilated on whether seven steps are essential to be taken before the sacred fire or seven rounds of the sacred fire were essential. It has already been found by the Commanding Officer that the petitioner appeared to have been coerced into the marriage with Gayatri Devi: Even then it had to be a case for obtaining a decree of nullity or divorce and he was expected to have obtained a divorce or a decree of nullity from a Court of law. This is putting the cart before the horse. When the very existence of valid marriage was disputed by the petitioner, instead of asking the complainant to go to a Court of Law to get the point of Bigamy decided, the petitioner was being asked to get a non-existent marriage declared null and void, when he right from the beginning refuted that there was any valid marriage existing between him and Gayatri Devi. The conduct of the petitioner also bears this out. He had neither asked for permission for that marriage nor he reported that marriage to the authorities. As the marriage with Gayatri was alleged to be earlier, there was no reason why the petitioner should not have followed the same procedure which he later followed in case of his marriage with Ms. Poonam Devi. In all these circumstances, therefore, it cannot be presumed that a valid marriage existed between the petitioner and Ms. Gayatri Devi. Such questions of complicated nature have to be left by the Departmental Authorities for determination by general Courts of Law and the Departmental Authorities should not take upon themselves the onerous task of deciding such legal questions requiring specialised knowledge of law.For the aforesaid reasons, the petition deserves to be allowed. It is hereby allowed. The order of discharge is quashed. The petitioner shall be reinstated immediately and he shall be entitled to all the benefits including salaries and allowances for the period from the date of discharge till the date of being taken back on duty, as if the order of discharge was never passed. It is hereby allowed. The order of discharge is quashed. The petitioner shall be reinstated immediately and he shall be entitled to all the benefits including salaries and allowances for the period from the date of discharge till the date of being taken back on duty, as if the order of discharge was never passed. There shall be no order as to costs.Petition allowed. *******