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Madhya Pradesh High Court · body

2010 DIGILAW 542 (MP)

Natthu Lal Kori v. State of M. P.

2010-05-11

R.S.JHA

body2010
JUDGMENT : The petitioner, who was working as a Constable in the Police Force, has filed this petition being aggrieved by order dated 31-3-1992 passed by the Superintendent of Police, Jabalpur compulsorily retiring the petitioner from service and the orders passed by the Appellate and Revisional Authority dated 22-7-1992 and 31-3-2005 respectively, by which the aforesaid punishment imposed upon the petitioner has been affirmed. 2. The brief facts, leading to the filing of the present petition, are that the petitioner joined services in the Police Department as a Constable on 20-1-1967. At the time of joining service the petitioner was married to one Phoolmati and her name was, accordingly, recorded in the service record relating to the family details of the petitioner. In the year 1980, on account of constant illness of his wife Phoolmati and on her express agreement in writing, the petitioner kept one Sakun Bai with him without disturbing the status of Smt. Phoolmati as his legally married wife. A copy of the agreement executed by Smt. Phoolmati in this regard is filed by the petitioner as Annexure P-l. The aforesaid arrangement also stipulated that the land of the petitioner in village Doli shall be exclusively that of Smt. Phoolmati in order to cater for her maintenance. 3. That on the basis of a complaint and a certificate dated 16-6-1991, Annexure P-2, of the Sarpanch of Gram Panchayat, Doli alleging that the petitioner had committed bigamy and he had not maintained his first wife, a charge-sheet was issued to the petitioner on 7-9-1991. The petitioner filed a reply to the charge-sheet on 7-9-1991. Thereafter a departmental enquiry was instituted and the inquiry report was submitted by the Inquiry Officer on 4-3-1992. A show cause notice along with a copy of the report was served upon the petitioner on 12-3-1992 to which the petitioner filed a reply on 18-3-1992 and, thereafter, the Superintendent of Police, Jabalpur by order dated 31-3-1992 imposed a punishment of compulsory retirement upon the petitioner by recording a finding of guilt against him. 4. The petitioner, being aggrieved by the punishment imposed upon him, filed an appeal before the Appellate Authority, i.e. the Inspector General of Police, Jabalpur, which was dismissed by order dated 22-7-1992 and the revision filed by the petitioner thereafter was also rejected by the Director General of Police by order dated 27-11-1992. 5. 4. The petitioner, being aggrieved by the punishment imposed upon him, filed an appeal before the Appellate Authority, i.e. the Inspector General of Police, Jabalpur, which was dismissed by order dated 22-7-1992 and the revision filed by the petitioner thereafter was also rejected by the Director General of Police by order dated 27-11-1992. 5. Being aggrieved by the aforesaid orders the petitioner has filed the present petition alleging that the inquiry, conducted against him, was not in accordance with the provisions of the Police Regulations and that he was not given due and proper opportunity to defend himself before passing the impugned order of punishment. Additionally, the petitioner has submitted that though the charge levelled against him was under Rule 22 of the Conduct Rules which relates to bigamy, the Disciplinary Authority in the impugned order imposing punishment has categorically stated and held that no charge under Rule 22 of the Conduct Rules is made out as the petitioner has not entered into a second marriage in spite of which the punishment has been imposed upon the petitioner by treating his act to be a misconduct even though his act does not fall within any of the misconducts enumerated in the rules. In such circumstances, it is submitted that the impugned orders deserve to be set aside. 6. The aforesaid contentions of the learned counsel for the petitioner are vehemently opposed by the learned Government Advocate appearing for the respondent/State who submits that the petitioner has admittedly kept Sakun Bai with him who is living with him as his second wife and in such circumstances no fault can be found with the findings recorded by the authority or the imposition of punishment of compulsory retirement upon the petitioner. It is further submitted that the act of the petitioner falls within the category of a misconduct and, therefore, he has rightly been compulsorily retired from service. 7. I have heard the learned counsel for the parties at length. From a perusal of Regulation 972 of the M. P. Police Regulations it is clear that the provisions of the M. P. Government. Servants' Conduct Rules, 1959 have been made applicable to the petitioner's services. 7. I have heard the learned counsel for the parties at length. From a perusal of Regulation 972 of the M. P. Police Regulations it is clear that the provisions of the M. P. Government. Servants' Conduct Rules, 1959 have been made applicable to the petitioner's services. It is also clear from a perusal of the charge-sheet issued to the petitioner dated 7-9-1991, a copy of which has been filed as Annexure P-3 along with the petition, that the charge levelled upon the petitioner was that the petitioner has kept a second wife without the express consent of his first wife contrary to Government Rules and has thereby committed a criminal act. 8. It is settled law that the authority, while imposing a punishment upon an employee, is required to record and arrive at a finding based on facts to the effect that the employee is guilty of some misconduct or unlawful behaviour in relation to the discharge of his duties in service which act on his part is incorrect. The authority is also required to record a finding that the act of the employee amounts to a misconduct in accordance with the Rules governing the employees services. 9. From a perusal of the charge-sheet, the enquiry report and the order passed by the disciplinary authority it is evident that as many as 14 prosecution witnesses were examined and 3 defence witnesses were examined during the departmental enquiry. The enquiry officer on the basis of the analysis of the prosecution as well as defence witnesses has recorded a finding that the petitioner was initially married to Phoolmati. Thereafter in the year 1980 with the consent of his wife and in accordance with the custom and practice prevalent in their community the petitioner had called for a Panchayat wherein it was decided with the consent of Phoolmati that the petitioner would keep Sakun Bai along with him and for the purposes of maintenance of Phoolmati, his first wife, the petitioner's land in village Doli would be given to Phoolmati for her maintenance while the service benefits would go to Sakun Bai. The fact of existence of such a custom and practice has been affirmed by all the witnesses. The fact of existence of such a custom and practice has been affirmed by all the witnesses. It is also apparent from the aforesaid documents that Phoolmati Bai thereafter permanently resided in village Doli in accordance with the aforesaid decision of the Panchayat and did not object to the petitioners keeping Sakun Bai till 1991. 10. From the records it is also evident that the petitioner kept visiting village Doli and that in the nomination form regarding family pension the petitioner has nominated the name of Phoolmati Bai. From the facts it is also established that Phoolmati Bai for the first time complained against the petitioner after a long lapse of 11 years i.e. in the year 1991 and that also only on account of the fact that the petitioner apart from proceeds of the agricultural land in village Doli had stopped giving money to her. The enquiry officer as well as the disciplinary authority recorded a finding that the petitioner had not entered into a second marriage with Phoolmati and that he had kept Sakun Bai with the express consent of his wife Phoolmati. 11. In view of the aforesaid findings recorded by the authorities it is evident that the alleged charge levelled upon the petitioner of having kept a second wife without the consent of his first wife contrary to the rules which amounted to a crime is apparently not established. From a perusal of Rule 3 of the M. P. Civil Services (Conduct) Rules, 1965 it is clear that generally, every Government servant should at all times do nothing which is unbecoming of a Government servant. Rule 22 of the Rules does not permit bigamous marriage without first obtaining the permission of the Government even in case where subsequent marriage is permissible under personal law applicable to the employee. Rule 22A provides that without prejudice to the generality of the concept of misconduct, any act or omission in breach of directions or prohibition enacted in the rules shall amount to a misconduct punishable under the M. P. Civil Services (Classification, Control and Appeal) Rules, 1966. 12. In the instant case, the authorities concerned have recorded a finding that the petitioner has not entered into a second marriage and, therefore, no charge of bigamy is made out against him. 12. In the instant case, the authorities concerned have recorded a finding that the petitioner has not entered into a second marriage and, therefore, no charge of bigamy is made out against him. It is also evident that the punishment of compulsory retirement has been imposed upon the petitioner by stating that he has committed a misconduct. On scrutinizing the facts of the present case in juxtaposition with the conduct rules it is clear that keeping another woman without marrying her with the express consent of the wife in accordance with the custom and practice prevalent in the community and after approval of the same by the Panchayat is not enumerated as a misconduct in the rules. I may hasten to clarify that this Court has not held that keeping of another woman without marrying her during the life time of the first wife would not as a rule be a misconduct under any circumstances, but in the peculiar facts of the present case, namely, existence of a custom, community practice, approval of the Panchayat, consent of the first wife making provision for her maintenance by giving her agricultural land in village Doli, nominating her name in the family pension papers and acceptance of this arrangement by the wife for a long period of 11 years when considered with the facts and evidence on record compel this Court to differ with the disciplinary and Appellate Authority only to the extent of imposition of a punishment of compulsory retirement from service upon the petitioner. 13. In the instant case, it is pertinent to note that the petitioner has kept Sakun Bai with the express consent and permission of his wife Phoolmati and that the petitioner with a view to secure the future of Phoolmati still continues to affirm the status of a wife upon her by mentioning her name in all the nomination forms in his service record and has also given his entire agricultural land in Village Doli to Phoolmati for the purpose of her maintenance and upkeep. 14. In the backdrop of the aforementioned provisions of the Rules, the factual situation as enumerated and the social background from which the petitioner comes, I am of the considered opinion that the conclusion recorded by the authority, regarding gravity of the misconduct by the petitioner is not sustainable. 15. 14. In the backdrop of the aforementioned provisions of the Rules, the factual situation as enumerated and the social background from which the petitioner comes, I am of the considered opinion that the conclusion recorded by the authority, regarding gravity of the misconduct by the petitioner is not sustainable. 15. At this stage it is relevant to take into consideration a Division Bench Judgment of this Court reported in Gop Chand Rai vs. State of M. P., 2004(2) MPHT 21 . In the aforementioned case the charge against the petitioner, who was also a constable, was under Rule 22 of the Conduct Rules for having contracted a second marriage during the life time of the first wife without obtaining the consent of the State Government. In that case also the wife had no objection to the second marriage but as the petitioner therein had contracted the second marriage he was found guilty of misconduct and was dismissed from service. This Court while considering the aforesaid aspect and taking into consideration the fact that the wife was not aggrieved and was being maintained by the petitioner, reduced the punishment to withholding of one increment with cumulative effect in spite of the fact that the petitioner therein had committed a misconduct under Rule 22 of the Conduct Rules specifically taking the human angle into consideration. 16. In the instant case, admittedly the petitioner has not contracted a second marriage and it has been categorically held to that effect by the Disciplinary Authority. It is also clear that the petitioner has kept Sakun Bai with the specific written consent of his wife Phoolmati and that he has secured her future by giving her all his land in village Doli and has also nominated her in all his service records as his wife. In such circumstances the punishment imposed upon the petitioner by the impugned orders dated 31-3-1992, 22-7-1992 and 31-3-2005 passed by the Superintendent of Police, Jabalpur and by the Appellate and Revisional Authority respectively, is hereby set aside. 17. Though, normally the proper course to be adopted in such a case would be to remit the matter back to the disciplinary authority for reconsideration of the quantum of punishment but looking to the fact that the present case is a very old one, that the petitioner has crossed the age of superannuation as on date and that the necessary facts are undisputed. I think it appropriate to decide the matter here itself instead of sending it back to the disciplinary authority. Looking to the peculiar circumstances and facts of the case and the Division Bench judgment of this Court in the case of Gop Chand Rai (supra), the punishment imposed upon the petitioner is reduced to stoppage of one increment with cumulative effect. The petitioner shall be entitled to all consequential benefits accordingly as well as recomputation of his pension. The petition is accordingly allowed to the extent indicated above. 18. In the peculiar facts and circumstances of the case there shall be no order as to the costs. Petition allowed.