Research › Search › Judgment

Gauhati High Court · body

2000 DIGILAW 109 (GAU)

Chelfru Mog v. State of Tripura

2000-03-14

D.N.CHOWDHURY

body2000
The legitimacy of the order of removal from service of the petitioner has been assailed in the petition The petitioner is a Scheduled Tribe and at the relevant time, he was working in the State Police Service wherein he was appointed as a Constable under the Tripura Armed Police 1st Battalion. While he was so serving in the department, a disciplinary proceeding was initiated against the petitioner for alleged second marriage with one Smti Hrinchai Mog during the life time of his first wife Smti Mosaja Mog. Articles of charges were served upon the petitioner. The Inquiring Officer on completion of inquiry submitted the report. The disciplinary authority by an order dated 6.7.90 passed a provisional order removing the petitioner from service. The said order was finally confirmed by an order dated 12.8.90. He preferred an appeal which was rejected. 2. Mr. CS Sinha, learned counsel for the petitioner has submitted that the petitioner was denied the natural justice by denying him the opportunity to defend his case effectively and properly. Mr. Sinha submitted that under the disciplinary rules, a delinquent officer is entitled to know the charge, take assistance of a defence assistant and contest the case on merit. In the instant case, he being a lowly placed employee and because of his lack of education he was not in a position to contest the case properly and effectively with the aid of defence assistant. He also submitted that though law provides for taking such assistance, in view of his want of awareness of the nuances of the technicalities of a departmental proceeding, he could not fully and effectively conduct his defence. Mr. Sinha submitted that it was incumbent upon the authority to make him aware of his right to enable him to take defence assistance to safeguard his interest and to cross examine the witnesses. Mr. Sinha further submitted that the Inquiring Officer submitted two reports, one was preliminary and the other one was final, but none of these reports was furnished to the petitioner. He submitted that in absence of such report, the petitioner could not effectively deal with the matter and submit an effective representation. Lastly, Mr. Sinha submitted that the petitioner was found guilty by the authority for violation of Rule 21 of the Tripura Civil Services (Conduct) Rules, 1988 (for short, the Rules). Mr. He submitted that in absence of such report, the petitioner could not effectively deal with the matter and submit an effective representation. Lastly, Mr. Sinha submitted that the petitioner was found guilty by the authority for violation of Rule 21 of the Tripura Civil Services (Conduct) Rules, 1988 (for short, the Rules). Mr. Sinha submitted that the said Rule 21 only imposes a restriction regarding marriage which is not absolute. The said Rule also contemplates of lifting of the restrictions in a given situation grounded on the personal law applicable to such Govt employees and other parties to the marriage. Mr. UB Saha, learned Govt Advocate, on the other hence, submitted that though there were some lapses here and there in adherence of procedure, nonetheless justice was done to the petitioner and the petitioner's case was justly and fairly considered by the authority. Mr. Saha submitted that in fact there is no dispute as to the contracting of the second marriage by the petitioner. The petitioner as well as the witnesses accepted the position that the second marriage was contracted, Mr. Saha submitted that apparently since no permission was granted to the petitioner no illegality was committed by the respondent authority in removing him from service. 3. Before adjudicating the matter as to the merits of the case some of the salient facts admitted by the parties are that the petitioner married Smti Mosaja Mog of village Hichhachhara under Belonia Sub Division and after his marriage he started living with the family of his bride as per the custom followed by the Mog community. It was further stated that the petitioner came back to his own house and lived there with his parent along with his second wife and children. The petitioner joined in the Police force in the year 1981. According to the petitioner and his parents, on the advice of the local people, he married again when his first wife deserted him in the year 1983. In the year 1984, the first wife lodged a complaint to the respondent No. 3 wherein she narrated about her sufferings due to the petitioner's second marriage. The authority initiated proceedings as mentioned above. An inquiry was conducted by the Inquiring .Officer. I have also gone through the records of the case in which it appears that the Inquiring Officer recorded the statement on his own. No Presenting Officer was present. The authority initiated proceedings as mentioned above. An inquiry was conducted by the Inquiring .Officer. I have also gone through the records of the case in which it appears that the Inquiring Officer recorded the statement on his own. No Presenting Officer was present. The Inquiring Officer also recorded the statement of witnesses. But there was no cross examination from the delinquent officer. The Inquiring Officer accordingly recorded below the statement of the witnesses. Cross examination - Nil. The materials on record do not show that the Inquiring Officer ever at any stage informed the delinquent the right of cross examination of witnesses by the delinquent and any rate the affect of not cross examining the witnesses. The procedure adopted by the Inquiring officer in recording the statement of witnesses does not fulfil the requirement under the law. The fact remains that none of those witnesses were cross examined. No endeavour of whatsoever manner was initiated by the disciplinary authority to make the delinquent aware of those aspects. It is needless to say that in a domestic inquiry which a delinquent officer is entitled to is to get a proper opportunity to know the charges and to contest the case. CCS (CCA) Rules which are applicable in this case also expressly indicate the procedure of conducting an inquiry. Sub-rule (8) of Rule 14 of the said Rules provides a Govt servant the opportunity of assistance from any other Govt servant to present the case on his behalf but cannot engage the legal practitioner. The aforesaid provision confers the right to a delinquent to obtain the assistance of a Govt officer to enable him to defend his case meaningfully. The duty as well as the responsibility of affording opportunity to the Govt servant rested on the respondents. A reasonable opportunity of being heard as envisaged in Article 311 (2) means a genuine and effective opportunity and not mere pretence. The opportunity to be provided is to be tailored to the situation, keeping in mind the status as well as educational and social back ground of the employees. In such situation, an added responsibility is cast upon the concerned authority to make the delinquent aware of his right to take assistance of the Govt officer for defending his case as the affect and consequence of refusal to cross examine the witnesses. In such situation, an added responsibility is cast upon the concerned authority to make the delinquent aware of his right to take assistance of the Govt officer for defending his case as the affect and consequence of refusal to cross examine the witnesses. The testimonials of the witnesses do not express anything as to the restrictions of second marriage of the Govt employee concerned. In fact, the disciplinary authority did not genuinely address to that aspect of the matter. The appellate authority only stated that since the customary laws of the community to which the petitioner belongs to were not codified by the State Govt, and therefore it refused to accept the plea of permissibility of second marriage in this society. The disciplinary authority relied upon the report of the Inquiring Officer, but the said report was never furnished to the petitioner for which he got no opportunity to take the assistance of other Govt servant to defend his case. He was also deprived of the opportunity to cross examine the witnesses. In the circumstances it can be safely held that the petitioner was denied with the opportunity to defend his case effectively and properly and on that ground alone, the petitioner's order of removal from the service cannot be sustained and accordingly set aside and the respondents are ordered to reinstate the petitioner in service. 4. The next question comes as to whether the authority should now proceed with the inquiry afresh giving the petitioner opportunity. It will be the authority who is to decide on evaluation of the facts situations, without overlooking the grievances of Smti Mosaja Mog, petitioner's first wife. .The factual matrix as indicated above clearly discloses about the second marriage. The only consideration remains here as to whether the contracting of second marriage falls within the permissible limit indicated in the proviso. Rule 21 of the Rules is extracted below: “21. .The factual matrix as indicated above clearly discloses about the second marriage. The only consideration remains here as to whether the contracting of second marriage falls within the permissible limit indicated in the proviso. Rule 21 of the Rules is extracted below: “21. Restriction regarding marriage-(1) No Govt employee shall enter into, or contract, marriage with a person having a spouse living; and (2) No Govt employee having a spouse living, shall enter into, or contract, a marriage with any person: Provided that the Govt may permit a Govt employee to enter into, or contract, any such marriage as is referred to in clause (1) or clause (2) if it is satisfied that: (a) such marriage is permissible under the personal law applicable to such Govt employee and the other party to the marriage; and (b) there are other grounds for so doing; (3) A Govt employee who has married or marriages a person other than of Indian nationality shall forthwith intimate the fact to the Govt.” Rule 21 of the Rules as such does not appear to be absolute. It leaves certain discretion on the Govt to give permission on judging the fact situation as indicated in clause (a) and (b) above. It is the Govt alone who is to judge the situation keeping hi mind the personal law applicable to the employee and the other parties and other analogous grounds. The Rule requires a permission to be obtained/granted by the Govt. It may be prior or ex-post facto. It does not indicate that such permission must always be prior permission as was held by the appellate authority. Rule 21 of the Rules atleast does not indicate that such permission has to be always confined to prior permission. The Rule only confers the discretion on the Govt for granting permission. The discretion reposed is not arbitrary discretion. The discretion is to be exercised justly, reasonably and fairly and that must conform to the spirit of the law by assigning reason so that discretion exercised does not turn in to an abuse or misuse of its power. Rule 21 of the Rules has its own meaning and content that speaks of restraint and discipline. The provision is obviously used to maintain the discipline in the establishment as well as to retain the peace and harmony of the society. Rule 21 of the Rules has its own meaning and content that speaks of restraint and discipline. The provision is obviously used to maintain the discipline in the establishment as well as to retain the peace and harmony of the society. The provision is to be interpreted balancing the relevant factors of discipline and control in the establishment, family peace, the facts situations etc. 5. With the aforesaid observations, this writ petition is allowed and the petitioner shall be reinstated forthwith keeping it open to the Govt to pass any order as mentioned above. No costs.