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2010 DIGILAW 1498 (PNJ)

Tapinder Singh v. State Of Punjab

2010-04-23

RANJIT SINGH

body2010
Judgment Ranjit Singh, J. 1. The appellant, who was serving in the police, was accused of performing second marriage for which he was charge sheeted and ultimately dismissed from service. Having failed in his departmental appeal, he had filed the suit, challenging the order of his dismissal. The suit was dismissed and so also the appeal filed against the same. He has accordingly filed this Regular Second Appeal. 2. As per the counsel for the appellant, the substantial question of law that will arise in this case is that the departmental enquiry can not determine the civil rights of a party and can also not go into the complicated matters effecting the civil rights of the parties. This was the only ground of attack made by the counsel for the appellant to impugn the concurrent finding recorded against the appellant. 3. The present case is not a simple case of a second or a plural marriage. There are certain peculiar features in this case, which may be noticed. In fact, brother of the petitioner, Constable Sukhdev Singh, was killed by the extremists on 7.1.1991. He left behind wife, named, Chhinder Pal Kaur. As per the customs, she was married to the appellant with his consent in the presence of all relatives. Out of this wedlock, Chhinder Pal Kaur gave birth to a son. In view of the Government policy, Chhinder Pal Kaur and/or her children were entitled to a Government job on priority or compassionate basis. Chhinder Pal Kaur, being wife of Constable killed by the extremists, was also entitled to the pensionary benefits of her deceased husband. Appellant having married the wife of his deceased brother was able to obtain the Government job as Constable and also all the pensionary benefits being husband of Chhinder Pal Kaur. Having obtained all these benefits, the appellant started harassing Chhinder Pal Kaur and drove her away from his house. Thus, Chhinder Pal Kaur stayed with the appellant for a year and a half and thereafter started living in a Government quarter at Jamalpur Police Colony. Appellant joined her there for 15 to 20 days. When Chhinder Pal Kaur had gone to her village, the appellant broke open the locks of the room belonging to Chhinder Pal Kaur and misappropriated her belongings. Later the appellant married one Gurmit Kaur daughter of Mohinder Singh on 22.9.1999 without obtaining divorce from Chhinder Pal Kaur. Appellant joined her there for 15 to 20 days. When Chhinder Pal Kaur had gone to her village, the appellant broke open the locks of the room belonging to Chhinder Pal Kaur and misappropriated her belongings. Later the appellant married one Gurmit Kaur daughter of Mohinder Singh on 22.9.1999 without obtaining divorce from Chhinder Pal Kaur. She had accordingly moved complaint against the appellant for which a charge sheet was framed against him and departmental enquiry ordered. The enquiry was conducted by DSP Gurnam Singh, who found the appellant guilty of the misconduct and thereafter he was dismissed from service by competent authority on 30.11.2001. As per the respondent-State, the appellant was afforded full opportunity to present his defence during the course of enquiry. He had examined and cross-examined witnesses at length. He had produced witnesses like Balraj Singh, Jagdev Singh, Sukhwinder Singh and Harbans Kaur in his defence. The appellant, however, was found guilty and accordingly punished. 4. In the background as aforementioned, it is to be seen if the appellant could be proceeded against with the allegation of having performed second marriage and further if enquiry could be held for such a misconduct, which according to the counsel, effected the complicated civil rights of the parties. 5. The findings by the Courts is that enquiry was properly held, affording full opportunity to the appellant. No submission as such was made before me to find fault with the enquiry or to urge that the enquiry was held in violation of any provisions of law or procedure or in violation of any principles of natural justice. The only question, thus, requiring consideration is whether the enquiry could be held for the misconduct alleged against the appellant or it was such a matter where the Enquiry Officer was not competent to decide or determine the issues, which are said to be complicated matters effecting the civil rights. In support of his submission, the counsel for the appellant has referred to the decision of Delhi High Court in the case of M.S. Mann v. Union of India and others, 1976 (1) SLR 350. It is held in this case that if the existence of first marriage or previous marriage is admitted, then obviously the Conduct Rule would stand violated by the Government servant for contracting second marriage without permission. It is held in this case that if the existence of first marriage or previous marriage is admitted, then obviously the Conduct Rule would stand violated by the Government servant for contracting second marriage without permission. It is further observed that if the plea is that the previous marriage does not subsist, then the enquiry can not proceed without a competent finding as to the subsistence of the previous marriage. It is also observed that the only situation in which an enquiry as to the violation of the rules can proceed departmentally or in what are called disciplinary proceedings are :- "(a) Where subsistence of the first marriage is admitted; (b) Where subsistence of the first marriage can be established without entering into complicated questions of law and fact; (c) Where a Court of competent jurisdiction has held that the previous marriage subsists; and (d) The dissolution of the previous marriage alleged by the officer/official charged with violation of Rule 21 can on the very face of it be held to be a false plea." 6. In my view the ratio of law laid down in the above-noted case of M.S.Mann (supra) would not make any difference in the present case. The appellant has not disputed the subsistence of his first marriage with Chhinder Pal Kaur. Thus, no complicated question of law in regard to civil rights concerning the subsistence of first marriage arises in this case. The misconduct alleged was not in regard to subsistence of the previous marriage or the first marriage and accordingly any decision would not adversely effect any civil rights of the parties. In M.S.Manns case (supra) the situation when enquiry can be held are laid down and would clearly cover the situation in present case. It is a case where first marriage is admitted and its subsistence is not denied and the first marriage is thus established. The allegation against the appellant was for performing a second marriage with Gurmit Kaur. The appellant perhaps was denying his second marriage with Gurmit Kaur, a fact which was enquired into and stood established. It may not be out of place to observe here that even Gurmit Kaur had lodged against the appellant under Sections 406, 498A IPC. The acquittal of the appellant for these offences would be immaterial to dispute second marriage. The appellant perhaps was denying his second marriage with Gurmit Kaur, a fact which was enquired into and stood established. It may not be out of place to observe here that even Gurmit Kaur had lodged against the appellant under Sections 406, 498A IPC. The acquittal of the appellant for these offences would be immaterial to dispute second marriage. Lady would complain of offence under Sections 406 and 498-A if she was married to appellant. There was, thus, sufficient material that the appellant had solemnized a second marriage with Gurmit Kaur and this was without getting divorce from Chhinder Pal Kaur. There was no complicated question of law in regard to existence of custom, which was arising in this case as was the case in M.S.Mann (supra). No civil rights of the parties have been decided in this case. It could not be disputed before me that Conduct Rules applicable to the appellant made a provision for prohibiting a second marriage. The employer, in my view, will be well competent to lay down condition on which employer would employ a person. Such a Rule was said to be not offending any condition of service even in the case of M.S. Mann (supra). A rule prohibiting second marriage was found in consonance with the valid law and the plea to term the same as ultra-vires of Article 21 was rejected in this very case. 7. There is, thus, no merit in the appeal and the same is accordingly dismissed in limine. Appeal dismissed.