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2003 DIGILAW 907 (PAT)

Mahendra Kumar v. State Of Bihar

2003-08-27

NARAYAN ROY

body2003
Judgment Narayan Roy, J. 1. Heard counsel for the parties. 2. This writ application is directed against the order of termination dated 21-12-2002 issued vide Memo No. 1669 as contained in Annexure-10 whereby and whereunder services of the petitioner have been terminated. 3. According to the case of the petitioner, an enquiry was held against the petitioner pursuant to an application filed by his first wife, respondent No. 6 at the level of the Director, Health Services. After completion of the enquiry, an enquiry report was submitted indicating therein that the petitioner during the lifetime of his first wife married another lady. Pursuant to the enquiry report, notice was given to the petitioner dated 11-12-1995 by the Regional Administrative Medical Officer, E.S.I., Patna asking him to explain as to why action be not taken against him for marrying another lady during the lifetime of the first wife. The petitioner answered the notice vide application dated 14-12-1995 admitting the fact that he married another lady during the lifetime of his first wife as first wife was suffering from mental ailments. The authorities having considered reply to the notice filed by the petitioner issued orders as contained in Annexure-3 and Annexure-3/1 dated 21-2-2000 and 29-2-2000, respectively, whereby and whereunder half salary of the petitioner was directed to be given to his first wife, Geeta Devi, with effect from February, 2000. The orders as contained in Annexures 3 and 3/1 were given effect to and in the meantime, the order impugned as contained in Annexure-10 was passed terminating the services of the petitioner. 4. Learned counsel for the petitioner submitted that after due enquiry the authorities having been satisfied that the petitioner married another lady during the lifetime of his first wife, directed for payment of half of the salary to his first wife and thus the petitioner had legitimate expectation that no further action will be taken in the matter and almost after more than two years, the order impugned was issued terminating his services. It is further submitted that no opportunity whatsoever was given to the petitioner prior to passing of the order impugned as contained in Annexure-10, as required under Rule 23 of the Bihar Government Servants Conduct Rule, 1976 (hereinafter referred to as "the Rules") and, therefore, the order impugned is wholly without jurisdiction. 5. A counter-affidavit has been filed on behalf of respondent Nos. 5. A counter-affidavit has been filed on behalf of respondent Nos. 1 and 2 stating therein that the preliminary enquiry was held against the petitioner upon the complaint filed by his first wife, respondent No. 6 and the authorities having been satisfied about the allegations made against the petitioner, passed the Order impugned in Annexure-10. In paragraph 23 of the writ application, it is categorically stated by the petitioner that the order impugned as contained in Annexure-10 was passed without affording any opportunity of hearing to the petitioner. The statement made in paragraph 23 of the writ application has been answered in paragraph 24 of the counter-affidavit. The statement made in paragraph 24 of the counter-affidavit reads as follows:- - "That in reply to paragraph 23 it is stated that the order of dismissal (Annexure-10 of writ petition) has been passed after acceptance of second marriage by the petitioner in writing (see Annexure-9 of the writ petition) and considering the materials on record, enquiry report of the District Magistrate, Nalanda and after approval of concerned authorities. Hence in no way the respondents have violated Art. 311 (2) of the Constitution of India." 6. The statement made in paragraph 23 of the writ application has not been controverted to the extent as to whether any opportunity of hearing was again given to the petitioner before passing of the order impugned as contained in Annexure-10. From the tenor of the counter-affidavit, it appears that since the preliminary enquiry was already held in the matter against the petitioner and allegations were found true, there was no need to give any opportunity of hearing to the petitioner before passing of the order impugned. In the preceding paragraphs, I have already noticed that after holding an enquiry and finding the allegations against the petitioner true, the authorities passed the orders as contained in Annexures 3 and 3/1 directing for payment of half of the salary of the petitioner to his first wife. Rule 23 of the Rules reads as follows:- - 23. In the preceding paragraphs, I have already noticed that after holding an enquiry and finding the allegations against the petitioner true, the authorities passed the orders as contained in Annexures 3 and 3/1 directing for payment of half of the salary of the petitioner to his first wife. Rule 23 of the Rules reads as follows:- - 23. Restrictions regarding marriages.--(1) No Government servant shall enter into, or contract, a marriage with a person having a spouse living; and (2) No Government servant, having a spouse living shall enter into, or contract a marriage with any person; Provided that Government may permit a Government servant 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 Government servant and the other party to the marriage; (b) there are other grounds for so doing. (3) A Government servant who has married or marries a person other than of Indian Nationality shall forthwith intimate the fact to the Government." 7. On reading of Rule 23 of the Rules, it would be manifest that the authorities are required to consider the matter upon sufficient cause being shown by the petitioner as to whether there were other grounds to solemnise second marriage. In absence of any categorical statement made in the counter-affidavit that opportunity was given to the petitioner to show sufficient grounds for contracting another marriage, in my opinion, the requirements of the provisions, as laid down under Rule 23 of the Rules, have not been satisfied. The order impugned has been passed without any notice to the petitioner and in case notice could have been given, the petitioner could have satisfied the authorities about the grounds for contracting another marriage. Necessarily, therefore, it means that an opportunity was to be given to the petitioner prior to passing of the order of punishment as contained in Annexure-10, specially when the case was closed after passing of the orders as contained in Annexures 3 and 3/1 and in case any further action was required to be taken, then the authorities were duty bound to give an opportunity of hearing to the petitioner again, as required under Rule 23 of the Rules. 8. 8. Admittedly, no notice or opportunity was given to the petitioner to satisfy the authorities as to what were the grounds for contracting another marriage. The order impugned on that score is not sustainable in law. 9. For the reasons aforementioned, this application is allowed and the order impugned as contained in Annexure-10 is set aside. The authorities, however, may proceed in the matter afresh in accordance with law. There will be no order as to costs.