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2003 DIGILAW 473 (JHR)

Rama Shankar Ram v. State Of Bihar

2003-04-15

TAPEN SEN

body2003
JUDGMENT Tapen Sen, J. 1. Heard Mr. P.P.N. Roy, learned counsel for the petitioner and Mr. Shekhar Sinha, learned counsel for the respondent No. 5 namely Smt. Shanti Devi and Mr. Rajeev Ranjan Mishra, learned G.P.- II who appears for the respondent Nos. 1 to 4. 2. The petitioner is aggrieved by the order dated 15.01.1999 passed by the respondent No. 2 (Commandant, Bihar Military Police - 04, Bokaro Steel City) as contained at Annexure - 5, whereby and whereunder, the petitioner was dismissed from service. The petitioner further prays for a direction upon the authorities to reinstate him in service. The short facts which are necessary to be taken note of for purposes of adjudication of this case are that the petitioner was initially appointed as a Constable in the Bihar Military Police, Bokaro in 1986. His wife namely the respondent No. 5 (Smt. Shanti Devi), filed a complaint alleging bigamy and cruelty and accordingly demanded maintenance. On the basis of such a complaint having been made, the petitioner received a chargesheet dated 02.11.1996 as contained at Annexure- 1 wherein the petitioner was informed that he had committed misconduct on account of having married for the second time during the lifetime of the first wife and that too, without having obtained permission from the Government and that he was not maintaining his wife. 3. Having received the aforementioned notice, the petitioner filed his cause vide Annexure-2 wherein he refuted the charges brought against him. In the said reply/cause, he categorically stated that he had only one wife. Thereafter, by Annexure-3, yet another charge was served upon the petitioner wherein while referring to the reply filed by the petitioner, it was stated that the charge leveled against him had been found to be established. It appears that, thereafter, an inquiry was conducted and a report to that effect was also filed and the Inquiry Officer who submitted his report whereafter comments were given by the Inquiry Officer holding the petitioner to be guilty of the charges. Thereafter, the petitioner was served with a notice to show cause against the proposal to dismiss him from the service and finally, the impugned order dated 15.01.1999 was passed. Thereafter, the petitioner was served with a notice to show cause against the proposal to dismiss him from the service and finally, the impugned order dated 15.01.1999 was passed. At Paragraphs 18 and 19, the Writ Petition has stated that his wife had filed an application under Section 125 of Cr PC, before the learned Judicial Magistrate, 1st Class, at Bhabhua which was registered as Miscellaneous Case No. 9/1998. In the said application, she also filed a petition subsequently compromising the matter vide Annexure-6 appended to the Writ Application. According to the petitioner, on the basis of the aforesaid compromise petition, the learned Judicial Magistrate dismissed the maintenance application vide Order dated 10.12.1998. According to the learned counsel for the petitioner, in view of the compromise, the charge of bigamy will be deemed to have been obliterated and therefore, the order of dismissal needs to be modified. 4. A counter affidavit has been filed by the respondent Nos. 2 to 4 wherein they have stated that the petitioner, is not entitled to any relief inasmuch as during the lifetime of his first wife he married again without sanction of the appropriate authority in violation of Rule 707(A) of the Police Manual, as also in violation of Rule 23 of the Government Servants Conduct Rules. These respondents have further stated that against the order of dismissal, the petitioner had also filed a representation before the D.I.G. Military Police which was also rejected on 14.04.1999 and thereafter, the petitioner had also filed an appeal before the Additional Director and without waiting for the result of the appeal, the petitioner should not have filed the instant Writ Application. The respondents have further justified the passing of the order of the dismissal and they have stated at paragraph 10, that neither the compromise petition nor the dismissal of the maintenance application filed by her can affect the charges framed for departmental action. 5. Mr. P.P.N. Roy, learned counsel for the petitioner however states that there has been no suppression on the part of petitioner and in fact, at paragraph-11, the facts in relation to the filing of the appeal was stated and it was also stated that the appeal had not been disposed off till date. 6. 5. Mr. P.P.N. Roy, learned counsel for the petitioner however states that there has been no suppression on the part of petitioner and in fact, at paragraph-11, the facts in relation to the filing of the appeal was stated and it was also stated that the appeal had not been disposed off till date. 6. The respondent No. 5, who is the wife of the petitioner has filed a counter affidavit on 18.07.2000, wherein she has stated that the matter has been settled out of Court and that all her grievances have been settled and that she is living with the petitioner and that conjugal relationship is good. However, due to dismissal from service, both are starving. 7. It appears that subsequently on 08.09.2000, an interlocutory joint application has been filed by both the petitioner and the respondent No. 5, wherein they have stated at Paragraph 5, that the wife (respondent 5) had filed a compromise petition and accordingly, her case was dropped. They have further stated that the parties are living peacefully and conjugal rights have been restored. 8. Looking into the case from another angle, i.e. the petition of compromise and the attitude of the wife in repeatedly filing applications in the manner indicated above, does go to show that at least she, who is the legally wedded wife of the petitioner and who should have been the most aggrieved has filed petitions after petitions both before the trial Court as also before this Court stating that all is well at the home front. The charge of second marriage does not appear to have been established anywhere nor has it been found as a matter of fact that the so-called second woman was actually the second wife of the petitioner. On the contrary, the respondent No. 5, filed a petition before the Trial Magistrate vide Annexure-6 and from a perusal thereof it appears that what she wants to say is that the case had been instituted on the basis of the marital discord. 9. Be that as it may, the charge of bigamy and the factum of bigamy having not been established by a competent Court save and except in the departmental proceeding in Annexure-5, it appears that the punishment of dismissal from service is extremely harsh in the facts and circumstances of this case. 9. Be that as it may, the charge of bigamy and the factum of bigamy having not been established by a competent Court save and except in the departmental proceeding in Annexure-5, it appears that the punishment of dismissal from service is extremely harsh in the facts and circumstances of this case. One of the reasons why the departmental authorities came to a conclusion that he had married for the second time is because the petitioner had take a house in Hanuman Nagar at Bokaro where, according to charges, he used to live with one Sumitra Devi as husband and wife. The owner of that house Suraj Deo Pandit had given a statement to the effect that Sumtira Devi used to live in that house along with the petitioner as tenants in the capacity of husband and wife and therefore the departmental authorities came to a conclusion that he had married for the second time without there being any evidence of the "Marriage". 10. Be that as it may and now considering the fact that the petitioner is living along with respondent No. 5, it appears that the punishment of dismissal from the service is extremely harsh and the same needs reconsideration at the hands of the respondents. Consequently, the matter is remanded to the respondent No. 2 (Commandant of the corresponding force of Jharkhand), to look into the matter and pass a fresh order in accordance with law. It will be totally at the discretion of the authorities to consider as to what other lesser punishment should be imposed upon the petitioner and the authorities shall be free to impose such conditions as they may deem fit and proper. Consequently, the impugned order of dismissal is set aside and the matter is remanded to the authorities for passing a consequential order of reinstatement on such terms as has already been indicated above. The respondent authorities shall do the needful as expeditiously as possible but not later than a period of three months from the date of receipt a copy of this order. With the aforesaid observations and directions, this Writ petition is allowed. No order as to costs.