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2003 DIGILAW 1883 (MAD)

D. Jeyaraj v. The Managing Director & Another

2003-11-19

D.MURUGESAN

body2003
Judgment :- The petitioner is the Junior Assistant/Storekeeper in the respondent Tamil Nadu Agro Industries Corporation Limited (hereinafter referred to as the "Corporation"). He married one Thazhaiammal (hereinafter referred to as the "first wife") in the year 1979 and the marriage was registered in the Sub Registrar's office at Madurai. Through her the petitioner has two children. While the said marriage was said to be subsisting, the petitioner married one Lalithamani (hereinafter referred to as the "second wife") on 18.1.89 and the said marriage was also registered in the Sub Registrar's office at Cumbum. The first wife sent a petition on 3.3.90 to the Regional Officer of the respondent Corporation complaining that the petitioner had married second time while the first marriage was in subsistence, thus, he committed bigamy. She also complained that she has lodged a criminal complaint, which was taken on file in C.C.No.259 of 1990. Hence, she requested the respondent Corporation to take departmental action for the misconduct of the petitioner. 2. A preliminary enquiry was conducted on 20.6.90 and 5.7.90. The first wife did not attend the enquiry. The petitioner and his second wife attended the enquiry. The petitioner though admitted the first marriage, defended the petition on the ground that there was a divorce between the petitioner and his first wife before the village Panchayatdar on 20.10.83. Since the divorce is customary, the second marriage was not illegal. The second wife also attended the enquiry and she accepted the marriage with the petitioner, but claimed ignorance of the first marriage. Based upon the enquiry, a report was sent to the Secretary of Personnel and Administrative Reforms Department, Government of Tamil Nadu by the Corporation seeking for a clarification as to whether for the bigamous act of misconduct, disciplinary action could be taken, as there was no specific rule enabling the Corporation to take action against the employee. The Secretary, Agricultural Department, Government of Tamil Nadu in his letter dated 8.2.93 advised the Corporation to amend the service rules in line with Rule 19 of the Tamil Nadu Government Servants Conduct Rules, 1973 defining the bigamous marriage as misconduct. The rules of the Corporation were amended in the 178th Board's meeting held on 22.3.93 and Rule 55-A(C)(1)(i) was inserted after issuing notice under Section 9-A of the Industrial Disputes Act. The rule was brought into force on 17.6.93. The rules of the Corporation were amended in the 178th Board's meeting held on 22.3.93 and Rule 55-A(C)(1)(i) was inserted after issuing notice under Section 9-A of the Industrial Disputes Act. The rule was brought into force on 17.6.93. Thereafter, a memo was issued to the petitioner on 18.8.93 calling for explanation as to the misconduct of bigamy. On 15.10.93 the petitioner submitted his explanation. Since yet another act of misconduct on the part of the petitioner came to light, a further charge sheet was issued on 21.12.94 in respect of the following three charges:- (i) that his second marriage with another woman Tmt.Lalithamani when the first wife Tmt.Thazhaiammal is surviving is violation of the service Rule 55-A(C)(1)(i) of Tamil Nadu Agro Industries Corporation Limited Service Rules as he had failed to obtain the divorce through the competent Court of Law, before entering into the second marriage as above. (Basis:- Statement of the delinquent Jayaraj before the then Administrative Officer, dated 20.6.90.) (ii) that he is responsible for moral turpitude in having indulged in the unlawful act of having married another woman by name Lalithamani causing embarrassment and has brought discredit to the Corporation which is violation of Service Rule 55-A(C)(2). iii) that he has willfully defied the orders of the Area Executive Engineer, Trichy refused to carry out the instructions issued by the Area Executive Engineer, Trichy to attend to Sunola C & F Works relating to Trichy unit on and also other works entrusted to him by the Area Executive Engineer, Trichy. He has thus violated Service Rule 50 of Tamil Nadu Agro Industries Corporation Limited. (Basis: Letter dt. 29.10.94 of Area Executive Engineer (Engineering), Trichy)." The petitioner submitted his explanation on 11.1.95. Not satisfied with the explanation, an enquiry was ordered. The petitioner was also directed to appear for the enquiry in communication dated 25.1.95. The enquiry was held and Thiru N.Ramakrishnan, Area Executive Engineer, Trichy was examined on behalf of the Corporation and the petitioner examined himself. The petitioner defended the first two charges by contending that he has not committed any act of bigamy as he has already divorced the first wife even before the marriage with the second wife was registered on 18.1.89. The petitioner defended the first two charges by contending that he has not committed any act of bigamy as he has already divorced the first wife even before the marriage with the second wife was registered on 18.1.89. He also submitted that since the complaint by the first wife for bigamy was pending in C.C.No.259 of 1990, no departmental action could be taken till the disposal of the said complaint. The petitioner also denied the third charge. However, by report dated 2.3.95, the enquiry officer found all the three charges were proved. The findings of the enquiry officer were sent to the petitioner and remarks on the findings were called for. The petitioner submitted his remarks. After considering the explanation the first respondent of the Corporation by order dated 19.5.95 directed the dismissal of the petitioner. The appeal preferred by the petitioner to the second respondent viz., the Board of Directors was also dismissed on 27.9.95. Questioning the orders of the disciplinary authority and the appellate authority, the petitioner has filed this writ petition. 3. Mr.K.Chandru, learned Senior Counsel for the petitioner submitted that on the date when the act of bigamy alleged to have been committed viz., on 18.1.89, there was no rule in the Tamil Nadu Agro Industries Corporation Limited Service Rules defining the bigamous marriage as misconduct warranting any punishment and hence, no disciplinary proceedings could be initiated. The learned Senior Counsel therefore submited that the entire disciplinary proceedings are vitiated and the consequential orders of dismissal are liable to be set aside. The learned Senior Counsel would further submit that in any event, the petitioner had divorced his first wife before the village Panchayatdars during the year 1983 itself much before the second marriage on 18.1.89. The said divorce is customary and therefore there is no question of second marriage. The learned Senior Counsel would further submit that the first wife, the complainant, did not attend the enquiry to sustain her complaint. Moreover, when a criminal case for bigamy was pending, disciplinary proceedings ought not to have been initiated. He would also submit that the said criminal proceedings now has ended in acquittal of the petitioner by the orders of the Judicial Magistrate No.V dated 4.12.2000 in C.C.No.347 of 2000. Hence, the learned Senior Counsel submitted that the impugned orders are liable to be set aside. 4. He would also submit that the said criminal proceedings now has ended in acquittal of the petitioner by the orders of the Judicial Magistrate No.V dated 4.12.2000 in C.C.No.347 of 2000. Hence, the learned Senior Counsel submitted that the impugned orders are liable to be set aside. 4. Mr.K.Venkataraman, learned counsel for the respondent Corporation, on the other hand, submitted that though there was no specific rule in the Service Rules of the Corporation defining bigamy as a misconduct warranting any punishment, after the second marriage took place, the Board in its 168th meeting dated 12.12.90 resolved to adopt the Government Rules for conduct of disciplinary proceedings wherever there were no specific rules in regard to any particular misconduct. In the subsequent 178th meeting held on 22.3.93 also, the Board resolved to amend the service rules and Rule 55-A(C)(1)(i) was introduced making the bigamy as one of the misconduct warranting major punishment. This amendment was carried on after a due notice under Section 9-A of the Industrial Disputes Act. The learned counsel would further submit that the bigamy is a continuous act of misconduct so long as the first marriage subsists even on the date of the charge sheet was issued. The learned counsel also submitted that in the absence of a valid decree of divorce from a competent Court the customary divorce before the village Panchayatdars cannot be a ground to defend the misconduct of bigamous marriage. The learned counsel further submitted that in the matrimonial offences like the one viz., bigamy shall be automatically presumed to be an act of misconduct warranting enquiry, that could be conducted under rule 57 of the rules, which is an inclusive clause including "or of any other act of misconduct or misbehaviour". Even in the absence of specific rules the act of bigamous marriage can be considered as misconduct under the rules. The learned counsel submitted that the acquittal in the criminal Court shall not stand in the way of the disciplinary proceedings, as it is always open to the management to proceed with the disciplinary proceedings even if the delinquent employee is acquitted by a criminal Court for the same set of charges. 5. Before referring to the judgments relied upon by either side, it would be proper to first consider the facts of the case with reference to certain dates. The petitioner married the first wife during the year 1979. 5. Before referring to the judgments relied upon by either side, it would be proper to first consider the facts of the case with reference to certain dates. The petitioner married the first wife during the year 1979. This fact is not disputed by the petitioner. The fact that the petitioner had married the second wife on 18.1.89 is also not disputed by him. The second marriage is sought to be justified on the ground that there was no rule enabling the respondent Corporation to enquire and pass orders of dismissal when bigamous marriage is not one of the misconduct under the rules. It is true that on the date when the second marriage took place on 18.1.89, there was no rule under the service rules enabling the Corporation to proceed against the petitioner for the misconduct of bigamous marriage. However, the Board in its 168th meeting held on 12.12.90 resolved to adopt the rules of the Government Servants Conduct Rules, 1973. Rule 19 of the Government Servants Conduct Rules enables the Government to initiate disciplinary proceedings against a Government servant for the act of bigamous marriage. This claim of the Corporation in regard to the adoption of the Government Servants Conduct Rules is not denied by the petitioner. On and from the said date viz., 12.12.90, the respondent Corporation is empowered to initiate disciplinary proceedings against its employees for bigamous marriage on the ground that it is a misconduct. Further, in its 178th meeting held on 22.3.93, the Board by amendment introduced Rule 55-A(C)(1)(i) to the Service Rules. The said Rule reads as under:- "55-A(C)(1)(i): No employee shall enter into or contract, a marriage with person having a spouse living; and (ii) No employee having a spouse living shall enter into or contract, a marriage with any person; Provided that the Corporation may permit an employee to enter into, or contract, any such marriage as is referred to in clause (i) or clause (ii) if it is satisfied that (a) such marriage is permissible under the personal law applicable to such employee and the other party to the marriage; and (b) there are other grounds for so doing." This rule came into effect on and from 17.6.93 when the Corporation issued a circular in this regard. My attention was not drawn to any challenge made to the resolution of the Board in introducing the said rule in the Service Rules. In the absence of the same, the respondent Corporation is empowered to initiate disciplinary proceedings against an employee for bigamous marriage on and after 17.6.93. 6. The question now to be considered is as to whether the Corporation could initiate disciplinary proceedings on the strength of the above rule for the bigamous marriage committed by an employee before the said rule came into force. The act of bigamous marriage and its consequence continue so long as the first marriage subsists not only on the date of the second marriage, but also on the date when the disciplinary proceedings were initiated. Though the first wife complained on 3.3.90, after a preliminary enquiry, a charge memo was issued to the petitioner only on 22.12.94 on which date the Corporation was empowered to initiate disciplinary proceedings for bigamous marriage in terms of Rule 55-A(C)(1)(i) of the Rules. It is the contention of Mr.K.Chandru, learned Senior Counsel that the misconduct should be with reference to the date on which it was committed and not the date on which the charge memo was issued. He would also rely upon the judgment of the Apex Court in "GLAXO LABORATORIES (I) LIMITED v. LABOUR COURT, MEERUT AND OTHERS ( 1984 (I) LLJ 16 )". It is true that the Apex Court in the said judgment has held that "the act makes it obligatory to frame standing orders and get them certified and it is further obligatory upon the employer to draw up with precision those acts of omissions and commissions which in his industrial establishment would constitute misconduct". That was a case where the workmen resorted to illegal strike and gathered together near the gate of the factory and intimidated and obstructed other workmen desiring to report for duty. Some of the workmen manhandled the loyal workmen outside the premises who did not join the strike. Hence, a charge sheet was issued for manhandling the loyal workmen. It was argued before the Apex Court that there was no provision under the standing orders to initiate disciplinary proceedings for manhandling of the workmen outside the premises. In that context, the Apex Court has ruled that in the absence of any standing order in this regard, the disciplinary proceedings ought not to have been initiated. It was argued before the Apex Court that there was no provision under the standing orders to initiate disciplinary proceedings for manhandling of the workmen outside the premises. In that context, the Apex Court has ruled that in the absence of any standing order in this regard, the disciplinary proceedings ought not to have been initiated. The learned Senior Counsel further relied upon the judgment of the Apex Court in "SHRI RASIKLAL VAGHAJIBHAI PATEL v. AHMEDABAD MUNICIPAL CORPORATION AND ANOTHER ( 1985 (I) LLJ 527 )" for the same proposition of law. That was a case of suppression of material facts and misrepresenting of his past on the material aspect and an act of omission and commission. While considering the same the Apex Court held that "it cannot be left to the vagaries of the management to say ex post facto that some acts of omission and commission nowhere found to be enumerated in the relevant standing order is nonetheless a misconduct not strictly falling within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty". The Apex Court further held that "unless an act or omission non-enumerated as misconduct either in the standing order or in the service regulations, it is not open to the employer to fish out some conduct as misconduct and punish the workmen even though the alleged misconduct would not be comprehended in any of the alleged misconduct". In that case also disciplinary proceedings were initiated for certain acts of omission or commission in the absence of any provision under the rules to initiate disciplinary proceedings on the date when the proceedings were initiated. The learned Senior Counsel also relied upon the Division Bench judgments of this Court in "S.ALAMELU v. THE SUPERINTENDING ENGINEER, SOUTH ARCOT ELECTRICITY SYSTEM (S), VILLUPURAM ( 1990 (II) LLJ 96 )", in "J.DHANARAJ v. T.N.E.B. AND OTHERS (1995 (I) LLJ 931)" and in "TAMIL NADU ELECTRICITY BOARD v. CENTRAL ORGANISATION OF TAMIL NADU ELECTRICITY EMPLOYEES AND ANOTHER ( 1997 (II) LLJ 1043 )". All the cases arose under the Industrial Employment (Standing Orders) Act, 1946. This Court has taken the view that in the absence of the enumerated misconduct under the standing orders, nothing can be read into service standing orders to include misconduct. All the cases arose under the Industrial Employment (Standing Orders) Act, 1946. This Court has taken the view that in the absence of the enumerated misconduct under the standing orders, nothing can be read into service standing orders to include misconduct. The learned Senior Counsel would also rely upon the order of the Division Bench in W.A.No.2027 of 2002 dated 9.9.2003 which arose under Rule 25 of the Tamil Nadu Water Supply and Drainage Board Officer's and Servants Conduct Regulations. The said rule reads as under:- "25. Bigamous Marriages: (1) No officer or servant who has a wife living shall contract another marriage without first obtaining the permission of the Managing Director of the Board, notwithstanding that such subsequent marriage is permissible under personal law for the time being applicable to him." The Division Bench of this Court on the facts of that case found that the rule speaks of second marriage and not about the moral conduct of the employee in living with another woman during the subsistence of a valid marriage. That was not a case of second marriage as it was a case of living with another woman without marriage. The rule did not make such act as a misconduct. 7. A survey of the judgments relied upon by the learned Senior Counsel for the petitioner would undoubtedly indicate that in the absence of any provision either in the rule or in the regulations or in the Board's Standing Order viz., a particular act of omission or commission as a misconduct, no disciplinary proceedings can be initiated. The facts in all those cases relate to an act of either commission or omission committed and those acts of commission are not continuous. Thus the act of omission or commission which are not continuous cannot be equated with the act of bigamous marriage. The act of misconduct viz., bigamous marriage though commences on the date the second marriage took place while the first marriage was subsisting, it continues to be a bigamous marriage and consequently an act of misconduct till such time the first marriage is dissolved or a valid decree of divorce is ordered by a competent Court. The act of misconduct viz., bigamous marriage though commences on the date the second marriage took place while the first marriage was subsisting, it continues to be a bigamous marriage and consequently an act of misconduct till such time the first marriage is dissolved or a valid decree of divorce is ordered by a competent Court. Facts of this case would indicate that though the second marriage took place on 18.1.89 and on which date admittedly, there was no rule enabling the Corporation to initiate disciplinary proceedings, in view of the fact that the act of bigamous marriage is a continuous one and amounts to misconduct in terms of Rule 19 of the Government Servants Conduct Rules that were adopted by the Corporation in its 168th meeting held on 12.12.90, the respondent Corporation is entitled to initiate disciplinary proceedings so long as the bigamous marriage continues. That apart, factually, a new rule 55-A(C)(1)(i) was also introduced with effect from 17.6.93. The charge memo was issued only on 12.12.94 much after the introduction of the rule. On the date when the charge memo was issued, the respondent Corporation was empowered to initiate disciplinary proceedings against the petitioner for the alleged misconduct of bigamous marriage. The act of misconduct of bigamous marriage continues and subsists on that date also. Hence, the judgments relied upon by the learned Senior Counsel for the petitioner are not applicable to the facts of this case and consequently the challenge to the impugned orders. 8. Coming to the claim of divorce before the second marriage, the petitioner had married the first wife in the year 1979 and married the second wife on 18.1.89. The defence of the petitioner appears to be that there was a customary divorce in front of the village Panchayatdars on 20.10.83. Except the petitioner contending that it is a customary divorce, no material was placed before the enquiry to sustain the said claim. That apart, it is the specific case of the petitioner that the terms and conditions of divorce were reduced in writing with the following two conditions:- (1) D.Jayaraj should deposit Rs.5,000/- in the Bank in the name of two children for their maintenance. (2) He should pay in cash Rs.5,000/- to Thazhaiammal for her maintenance. That apart, it is the specific case of the petitioner that the terms and conditions of divorce were reduced in writing with the following two conditions:- (1) D.Jayaraj should deposit Rs.5,000/- in the Bank in the name of two children for their maintenance. (2) He should pay in cash Rs.5,000/- to Thazhaiammal for her maintenance. Both Jayaraj and Thazhaiammal agreed for the above conditions and signed in the divorce deed." Even according to the petitioner, he has not complied with the said conditions by depositing the amount as agreed. In the absence of such deposit, it cannot lie in the mouth of the petitioner that the said agreement has been given effect to. In view of the above, it has to be held that there is no valid divorce in the eye of law before the petitioner married the second wife on 18.1.89. In that event, the act of bigamous marriage of the petitioner amounts to misconduct warranting disciplinary proceedings. 9. Coming to the next submission of the learned Senior Counsel for the petitioner that when the criminal Court has acquitted the petitioner, the respondent Corporation ought not to have proceeded with the disciplinary enquiry. In this regard, reference could be made to the judgment of the Apex Court in "STATE OF KARNATAKA AND ANOTHER v. T.VENKATARAMANAPPA ( 1996 (6) SCC 455 )". That was also a case of bigamy when the delinquent was issued with the charge memo for bigamous marriage while the criminal proceedings were pending and the employee was subsequently acquitted. While considering the scope of the disciplinary proceedings, the Apex Court has held thus:- "The prosecution evidence in the criminal complaint may have fallen short of those standards but that does not mean that the State was in any way debarred from invoking Rule 28 of the Karnataka Civil Service Rules, which forbids a government servant to marry a second time without the permission of the Government. But, here, the respondent being a Hindu, could never have been granted permission by the Government to marry a second time because of his personal law forbidding such marriage. But, here, the respondent being a Hindu, could never have been granted permission by the Government to marry a second time because of his personal law forbidding such marriage. It was thus beyond the ken of the Tribunal to have scuttled the departmental proceedings against the respondent on the footing that such question of bigamy should normally not be taken up for decision in departmental enquiries, as the decisions of competent courts tending to be decisions in rem would stand at the highest pedestal. There was a clear fallacy in such view because for purposes of Rule 28, such strict standards, as would warrant a conviction for bigamy under Section 494 IPC, may not, to begin with, be necessary. 10. In view of the above, I find no merit in the challenge to the disciplinary proceedings and the writ petition must fail. The disciplinary authority has imposed the penalty only on the ground that the charges 1 and 2 were proved. Both the learned Senior Counsel for the petitioner and respondents did not argue on the third charge. Therefore, I am not inclined to go into the third charge. 11. For the foregoing reasons, I find no grounds to interfere with the impugned orders. Accordingly, the writ petition is dismissed. No costs.