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2009 DIGILAW 136 (GAU)

Zakir Hussain v. Union of India

2009-02-25

ASHOK POTSANGBAM

body2009
JUDGMENT Asok Potsangbam, J. 1. Heard Mr. A. Mohendro Singh learned Counsel for the Petitioner and Mr. C. Kamal Singh, learned CGSC appearing for the Respondents. 2. In this writ petition, the Petitioner has challenged the order dated 20.11.2006 (Annexure-3) issued by the Addl. DIGP-cum-Commandant, GC, CRPF, Imphal, Manipur (the disciplinary authority) dismissing him from service and also the order dated 22.01.2007 (Annexure-5) passed by the D1GP, CRPF, Imphal, Manipur, (the appellate authority), dismissing the statutory appeal and confirming the order dated 20.11.2006 passed by the disciplinary authority. 3. Briefly stated, the case of the Petitioner is that while functioning as CT(GD) in CRPF during the period from 29.05.99 to 05.10.2004, he contracted a second marriage with one Ms. Rehena Begumon 16.05.2002 when his first wile Piyarjan Begum was still alive and as such, the disciplinary authority initiated a disciplinary proceeding against the Petitioner on the charge that the Petitioner had violated Rule 15 of the CRPF Rules, 1955 read with Rule 21 of the Central Civil Services (Conduct) Rules 1964. After initiation of the disciplinary proceeding, a memorandum of charges dated 04.07.2006 under Memo No. P.VIII.2/2005-EC-II accompanied by Article of charge, imputation of charge were furnished to the Petitioner and one Mr. P.K. Choudhury, Second-in-Command Officer, GC, CRPF, Imphal, was appointed as an Enquiry Officer to enquire into the charges levelled against the Petitioner, vide order dated 15.07.2006 issued by the disciplinary authority. The Article of charge which may be relevant for consideration in the subsequent paragraph of this judgment, may be reproduced as hereinbelow: That the said No. 850787859 HC(GD) Mohad. Zakir Hussain while functioning as CT(GD) in CRPF during the period from 29.05.1999 to 05.10.2004 committed an act of misconduct in his capacity as a member of the Force under Section11(1) of CRPF Act, 1949 in that he contracted second marriage with Miss. Rehena Begum on 16.05.2002 when his first wife Smt. Piyarjan Begum is still alive, in violation of the CCS (Conduct) Rule, 1964, which is an act prejudicial to good order and discipline of the Force. 4. The Petitioner did not submit any written statement of defence in the disciplinary proceeding. However, the prosecution examined Petitioner's first wife Ms. Rehana Begum, Second wife Ms. Piyarjan Begum along with four other witnesses as prosecution witnesses. 5. 4. The Petitioner did not submit any written statement of defence in the disciplinary proceeding. However, the prosecution examined Petitioner's first wife Ms. Rehana Begum, Second wife Ms. Piyarjan Begum along with four other witnesses as prosecution witnesses. 5. The Petitioner did not deny the charges levelled against him by the authority but at one point of time i.e. on 17.06.2004, he produced a divorce certificate to demonstrate that he had already divorced his second wife Ms. Rehana Begam. Though many contentions have been raised in this petition, the Petitioner chose to confine and rest his arguments only on the following two points/grounds: i) Under the personal Law, the Petitioner, who is a Muslim by caste, is entitled to have three marriages i.e. three wives at a time, and ii) Secondly, in the nature of the charge levelled against the Petitioner, the punishment of dismissal from service is grossly disproportionate and as such, interference from the court is called for. 6. In order to understand the misconduct alleged to have been committed by the Petitioner, it is considered necessary to discuss Rule 15 of the Central Reserve Police Force Rules, 1955 (hereinafter referred to as the Rules, 1955). The Rule 15 of the Rules, 1955 is reproduced hereinbelow: 15. Plural marriages - No member of the Force who has wife living shall contract any other 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 the member of the Force. 7. A plain reading of Rule 15 of Rules, 1955, as a whole, would make it abundantly clear that there is no absolute prohibition to a member of the Force from contracting second marriage while his first wife is still alive. All that is required is to obtain prior permission from the appropriate authority for such subsequent marriage. In other words, second or subsequent marriage while the first wife is alive, is permissible and legal with the prior permission of the competent authority. 8. All that is required is to obtain prior permission from the appropriate authority for such subsequent marriage. In other words, second or subsequent marriage while the first wife is alive, is permissible and legal with the prior permission of the competent authority. 8. It is submitted by the learned Counsel of the Petitioner that as far as the personal law of the Petitioner is concerned, it is legally permissible for him to have a second marriage or to have a second wife and, therefore, even if misconduct is established in terms of Rule 15 Rules, 1955, the so called misconduct is a curable one. In support of the aforesaid contention, the learned Counsel for the Petitioner has relied upon a Judgment of this Court reported in 2006 (2) GLT 569 Amal Kumar Baruah v. State of Assam and Ors. In that case, the Petitioner was dismissed from service on charge of bigamy after holding a departmental enquiry into the charge that the delinquent official contracted a second marriage while his first wife was still alive. Rule 26 of the Central Civil Services (Conduct) Rules, 1965 is pari materia to Rule 15 of the Rules, 1955. In short, both the Rules require prior permission from the competent authority for a member of the Force or an employee of the State Government to contract second marriage while the first wife is alive. 9. In the case of Amal Kumar Baruah v. State of Assam and Ors. (supra), the parties are Hindu and as per Hindu Law, second marriage during the subsistence of first marriage is not only prohibited but also is an offence Under Section 494 IPC. In the aforesaid case, the Court considered three categories of offence i.e. (i) compoundable offence without permission of the Court (ii) compoundable offence with permission of the Court and (iii) non compoundable offence. The offence under Section 494 IPC for Bigamy (plural marriage) being a compoundable offence with permission of the Court by virtue of provisions contained in Section 320(2) Code of Criminal Procedure, any person who commits an offence of bigamy can get acquitted or discharged from the charge of bigamy if the Court grants the requisite permission whereas in the third category of offence, the Court will have to proceed with trial without any scope of compounding the offence charged with. Therefore, when a person is charged with an offence Under Section 494 IPC, which is a misconduct as defined in Rule 26 of the Assam Civil Services (Conduct) Rules, 1964, the offence being a compoundable offence with permission from Court, as discussed above, the award of punishment of dismissal from service was found grossly disproportionate and accordingly, the impugned punishment was interfered with and set aside by the Court. I am in respectful agreement with the reasoning given in the aforesaid case (supra). 10. Coming back to the instant case, the Petitioner cannot be charged with the offence of bigamy under Section 494 IPC for having contracted a second marriage while the first wife is still alive because the Petitioner, being a Muslim, is allowed by his Personal law to have three wives at a time and there is no illegality in having a second or third wife while the first wife is still alive. Secondly, having a second wife without permission is nothing to do with discharge of his duties as a member of the Force as the misconduct alleged to have committed by the Petitioner is purely personal and familial in nature. 11. Considering the matter in its entirety, the Court is of the considered opinion that the punishment of dismissal from service awarded to the Petitioner is grossly disproportionate and it shocks the conscience of the Court. In (1998) 3 SCC 192 Colour-chem Ltd. v. A.L. Alaspurkar the Apex Court held that if the punishment imposed is shockingly disproportionate to the charges held proved against the employee, it will be open to the Court to interfere. In (2000) 3 SCC 450 U.P. State Road Transport Corporation and Ors. v. Mahesh Kumar Linkra and Ors. the principle of law laid down in (1998) 3 SCC 192 is reiterated. Following the law laid down by the Apex Court, as discussed above, the impugned order dated 20.11.2006 (Annexure-3) issued by the Addl. DIGP-cum-Commandant, GC, CRPF, Imphal, Manipur dismissing the Petitioner from service and also the order dated 22.01.2007 (Annexure-5) passed by the DIGP, CRPF, the appellate authority, dismissing the statutory appeal and confirming the order dated 20.11.2006 passed by the disciplinary authority, are set aside and quashed. The Petitioner shall be reinstated in service immediately. DIGP-cum-Commandant, GC, CRPF, Imphal, Manipur dismissing the Petitioner from service and also the order dated 22.01.2007 (Annexure-5) passed by the DIGP, CRPF, the appellate authority, dismissing the statutory appeal and confirming the order dated 20.11.2006 passed by the disciplinary authority, are set aside and quashed. The Petitioner shall be reinstated in service immediately. However, it is left to the Respondent authority to reconsider what should be the correct measure of punishment to be imposed on the Petitioner in the light of the observations and discussions made above. Such reconsideration should be done by the Respondent authority within a period of three months from the date of receipt of a certified copy of this order. Further, I leave it to the Respondent authority to make appropriate orders for granting the consequential benefits on reinstatement of the Petitioner in service. 12. With the above observations and directions, the writ petition shall stand disposed of.