Judgment ( 1. ) THIS L. P. A. is taken up for final disposal with the consent of parties. ( 2. ) THE ticklish question before the Court is what can one do with a Constable in the Special Armed Force if he performs his second marriage which is in violation of Rule 22 of M. P. Civil Services (Conduct) Rules, 1965 with the consent of the first wife but without obtaining permission of the Government as required under the rules. ( 3. ) THE answer to this question has to be looked at both from our human angle and also in accordance with the law prevailing at the relevant time. ( 4. ) THE admitted facts leading to the termination of the Constable are as follows :-The appellant who was a Police Constable was married to one Reena Rai in the year 1986. After leading a happy married life, in 1994, disputes started cropping up between the husband and the wife. Ultimately, a Panchayat was held and at the end of Panchayat it was resolved that the marriage stood dissolved. An agreement by both the parties was signed and both the parties were declared free to marry again by the Panchayat. ( 5. ) PURSUANT to the Panchayat, the wife Reena Rai gave a declaration on Affidavit, dated 11-2-1994 before the Oath Commissioner, Katni affirming that she is dissolving the marriage and that she has no relationship with the appellant and the appellant was free to marry again. ( 6. ) ACCORDING to the appellant, the marriage stood dissolved in terms of the community usage. ( 7. ) THE appellant pursuant to the declaration made by the first wife on 11-2-1994 got married to one Usha Gupta. The appellant was, however, providing maintenance to his first wife Reena Rai as per an arrangement. ( 8. ) THE appellant committed default in paying the maintenance amount. Being naturally aggrieved by not receiving the maintenance, the first wife Reena Rai (hereinafter referred to as the first wife for the sake of understanding the parties) gave a complaint to the police complaining that her maintenance was not being paid regularly. The object of the complaint by the first wife was to make sure that out of the salary of the appellant maintenance be paid to the first wife without fail. ( 9. The object of the complaint by the first wife was to make sure that out of the salary of the appellant maintenance be paid to the first wife without fail. ( 9. ) HOWEVER, the Commandant of 8th Battalion, Chhindwara on the basis of the complaint given by the first wife issued departmental charge-sheet against the appellant on the charge of marrying again while the first wife is still alive and as being contrary to the rules. After completion of the inquiry, the Disciplinary Authority, namely the Superintendent of Police, Chhindwara, by his order dated 13-4-1998 terminated the services of the appellant. The appeal preferred by the appellant was also dismissed. The appellant preferred a revision to the Director General of Police, Bhopal. The Director General of Police, Bhopal quashed the termination by an order dated 13-4-1998 and remanded the matter for a proper departmental inquiry. ( 10. ) AFTER the Revisional Authority quashed the order of termination, unfortunately the appellant was not reinstated as he should have been. The Commandant without reinstating the appellant into service called the appellant on 25-5-2000 and gave a Memo No. 350 E/2000, dated 25-5-2000 together with the copy of the Inquiry Report and directed him to submit his reply within a fortnight. Without reinstating the appellant, the Commandant, 8th Battalion, Chhindwara once again passed the order of termination dated 29-6-2000 terminating the appellant from service. ( 11. ) THE appellant being aggrieved preferred an appeal. The appeal was rejected by an order dated 29-3-2000. Thereafter, the appellant once again preferred a revision. It was contended before the revisional authority that the revisional authority had quashed the order of termination on 13-4-1998 and he was once again terminated from service on 29-6-2000. At least from 13-4-1998 to 29-6-2000, the appellant should have been paid wages. However, the Revisional Authority without referring this aspects of the matter rejected the revision petition filed by the Constable by order dated 29-10-2001. In the meanwhile, the appellant filed a mercy petition to the Director General of Police stating that his first wife had again given a fresh affidavit dated 8-4-2002 that her marriage had been dissolved and that she had agreed for the appellant to marry Usha Gupta as his second wife. This mercy petition was also rejected by the Director General of Police on 6-3-2003. ( 12. This mercy petition was also rejected by the Director General of Police on 6-3-2003. ( 12. ) BEING aggrieved by the aforesaid order, the appellant-Constable approached the learned Single Judge in W. P. No. 1938/2002. The learned Single Judge by an order dated 20-10-2003 dismissed the writ petition at the stage of admission. The learned Single Judge pronounced that the Constable refused to look after the three children born to the first wife and that the petitioner has admitted that he got married to Usha Gupta for the second time and was aware that when he got married to Usha Gupta for the second time he did not obtain permission because he apprehended that he may not get permission from the State Government to perform the second marriage. The learned Single Judge while dismissing the writ petition concluded by stating that the misconduct has been established and the Constable was rightly found guilty of indiscipline. Accordingly, the learned Single Judge dismissed the writ petition. The learned Single Judge did not consider whether the punishment was shockingly disproportionate to the nature of the misconduct or not. This is how the Constable is before us. ( 13. ) LET us briefly deal with the relevant provision of the M. P. Civil Services (Conduct) Rules, 1965. The relevant Rule is Rule 22 of the M. P. Civil Services (Conduct) Rules, 1965. The Rule deals with Bigamous marriages which reads as under:- "bigamous marriages.-- (1) No Government servant who has a wife living shall contract another marriage without first obtaining the permission of the Government, notwithstanding that such subsequent marriage is permissible under the personal law for the time being applicable to him. (2) No female Government servant shall marry any person who has a wife living without first obtaining the permission of the Government. 22-A. General Concept of misconduct.-- Without prejudice to the generality of the concept of misconduct any act or omission in breach of directions or prohibition enacted in these rules shall amount to misconduct punishable under the M. P. Civil Services (Classification, Control and Appeal) Rules, 1966. " This Rule is not under challenge before us. The Rule clearly spells out that no Government servant who has a wife living shall contract a second marriage without obtaining permission of the Government, notwithstanding that the second marriage is permissible under the personal law applicable to him. ( 14. " This Rule is not under challenge before us. The Rule clearly spells out that no Government servant who has a wife living shall contract a second marriage without obtaining permission of the Government, notwithstanding that the second marriage is permissible under the personal law applicable to him. ( 14. ) THEREFORE, if the rule is to be read strictly even if a person has a divorce by custom, it is necessary to get the State Government permission before entering into a second marriage. ( 15. ) IT was submitted by the learned Senior Counsel for the appellant that the rigor of this rule does not apply to a person whose first marriage has been dissolved in accordance with customs and, therefore, the solemnization of second marriage does not act as a breach of Rule 22-A. ( 16. ) WE do not think that this rule can be interpreted in that way. Our understanding of the rule is clear. There is a prohibition for a person who wants to contract a second marriage although the second marriage is permissible under personal law unless before contracting the second marriage permission is first obtained from the Government. ( 17. ) IN other words, even if a person, who is in Government service, has a valid divorce by custom, he can not marry again without obtaining the permission of the Government. ( 18. ) AS stated earlier, we have to remember that this rule is not under challenge before us. ( 19. ) THEREFORE, we have to necessarily come to the conclusion that there is a violation of Rule 22 only in so far as the appellant has not obtained prior permission from the State Government for his second marriage. ( 20. ) WHAT happens next is a human problem. Whether a person should be meted out with such a severe punishment for not obtaining prior permission for the second marriage will have to be determined by this Court taking into account the consequences that will be visited on both the first wife as well as the second wife and the children. ( 21. ) THIS certainly is a human problem. It involves the future of three innocent children born to the first wife. ( 22. ) THE first wife curiously appeared in the Court and pleaded for clemency on behalf of her husband, the Constable. ( 21. ) THIS certainly is a human problem. It involves the future of three innocent children born to the first wife. ( 22. ) THE first wife curiously appeared in the Court and pleaded for clemency on behalf of her husband, the Constable. She stated that if her husband looses his job, the children will be in the streets. The first wife also stated that she has also remarried again after the so called divorce. All that the first wife wanted was to make sure that her first husband pays maintenance for the upkeep of the children. She has stated that neither she nor her so called second husband have any means to look after the children born to the appellant. ( 23. ) THE first wife had categorically stated that she never complained about the second marriage but only wanted the payment of maintenance for the children to continue. ( 24. ) IN the meanwhile, the Constable filed an affidavit before the Court in the presence of the first wife. The Constable undertook before this Court to maintain the three children born out of the first wife by paying a sum of Rs. 2,000/- per month to the first wife for the maintenance of the three children. It is relevant to extract the affidavit filed by the appellant/constable before this Court. The Affidavit reads as follows:- "i, Gop Chand Rai, s/o Shri Shyamlal Rai, 39 years, r/o Village Hardua, Tehsil and District Katni, do hereby solemnly affirm and state on oath as under:- (1) I am appellant in the aforesaid case. (2) I undertake through this Affidavit that I will maintain three children born from my first wife Reena Rai and I further undertake that I will be regularly paying Rs. 2,000/- to Smt. Reena Rai for maintenance of my three children born from Reena Rai. (3) I further undertake that in case of any default on my part in paying the aforesaid amount the State Government or the disciplinary authority will be at liberty to take disciplinary action against him. " ( 25. ) AS far as the misconduct is concerned, this is an open and shut case. However, the folly committed by the appellant/constable was that he did not get prior permission from the State Government before the second marriage. ( 26. " ( 25. ) AS far as the misconduct is concerned, this is an open and shut case. However, the folly committed by the appellant/constable was that he did not get prior permission from the State Government before the second marriage. ( 26. ) FOR all these reasons, it can be safely said that the punishment of dismissal from service will leave the children shattered and in a state of poverty. We have no doubt that the first wife will look after the children and give them proper education and sustenance in the village although she has married for the second time after the so called divorce. ( 27. ) THE first wife was present in Court more or less pleading on behalf of her husband that he should not lose his job. It was borne out from the record that the complaint given by her was only with regard to maintenance but then the law took its turn, which ended in the dismissal of the appellant/constable. We feel that both the appellant and his first wife are sincere that the children must have a future and they must be educated and well fed. All this requires money. Our paramount consideration was the welfare of the three minor children born to the appellant and the first wife. Throwing the appellant into the streets without employment would tantamount to throwing the children out of Court without any sustenance. ( 28. ) IN that view of the matter, we do not think that the first wife is shielding her husband, the Constable, from punishment. She is genuinely interested in caring for the children which is a paramount consideration to her. ( 29. ) DOES this technical offence call for a punishment of dismissal from service and at what cost ? The divorce was by common usage and may be or may not be acceptable in law. ( 30. ) BUT, the fact of the matter is that the Constable married again and the first wife also married once again and the Constable committed an error in not obtaining permission from the State Government when he got remarried. ( 31. ) WE feel that this technical error, which undoubtedly is a misconduct, can not lead to the consequences of dismissal from service. ( 32. ( 31. ) WE feel that this technical error, which undoubtedly is a misconduct, can not lead to the consequences of dismissal from service. ( 32. ) IN normal circumstances, if we found that the punishment in shockingly disproportionate, we would send it back to the disciplinary authority to deal with the matter in accordance with our directions, but in the facts and circumstances of the case and taking into account the paramount interests of the children, we propose on a broad consensus to deal with the matter ourselves. It is in rare circumstances the Court may substitute a lesser punishment if the punishment imposed by the disciplinary authority is shockingly disproportionate. ( 33. ) WE have the pronouncements of the Supreme Court which enable us to take this course of action. ( 34. ) IN B. C. Chaturvedi v. Union of India and Anr. [ (1995) 6scc 749] the Supreme Court did pronounce that in extra-ordinary circumstances, it is possible for the Court to substitute a lesser punishment without sending it back to the disciplinary authority. The Supreme Court in Director General RPF and Ors. v. Ch. Sai Babu [ (2003) 4 SCC 331 ] has pronounced that normally, the punishment imposed by a disciplinary authority should not be disturbed by the High Court or a Tribunal except in appropriate cases, that too only after reaching a conclusion that the punishment imposed is grossly or shockingly disproportionate, after examining all the relevant factors including the nature of the charges proved, the past conduct, penalty imposed earlier, the nature of duties assigned, having due regard to their sensitiveness, exactness expected and discipline required to be maintained, and the department/establishment in which the delinquent person concerned works. The Supreme Court took the same view in Chairman and Managing Director, United Commercial Bank and Ors. v. P. C. Kakkar [ (2003) 3 SCC 364]. ( 35. ) FOLLOWING the pronouncements of the Supreme Court in the facts and circumstances of the case, we substitute the punishment of dismissal from service to that of withholding of one increment with cumulative effect. The Constable/appellant shall not be entitled to back wages. However, he shall be entitled to continuity of service. 37. It is made clear by consent of the appellant/constable that the maintenance amount of Rs. The Constable/appellant shall not be entitled to back wages. However, he shall be entitled to continuity of service. 37. It is made clear by consent of the appellant/constable that the maintenance amount of Rs. 2,000/- per month shall be paid to the first wife regularly and without fail on or before 10th of each calendar month. The appellant also undertakes before this Court that if the amount of Rs. 2,000/-per month is not paid, the first wife is at liberty to take such steps in accordance with law and may report the matter to the superior authorities and the superior authorities shall, out of the salary of the Constable, pay the maintenance amount by deducting it from the salary of the Constable/appellant directly to the first wife. This, in our view, would meet the ends of justice. It will not only save the appellant from the rigor of dismissal but also his reinstatement will give succour to the first wife and his three minor children. Time granted for reinstatement as indicated by this Court shall be one month from the date of receipt of this order. This order is made without pre-judice to any civil rights that may be agitated in a court of law by the parties. No costs.