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2015 DIGILAW 69 (MAN)

Union of India and Ors. v. Zakir Hussain

2015-05-12

KH.NOBIN SINGH, LAXMI KANTA MOHAPATRA

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JUDGMENT Laxmi Kanta Mohapatra, C.J. 1. Heard Mr. S. Suresh, learned CGC appearing on behalf of the appellants and Mr. M.I. Sharma, learned counsel appearing on behalf of the respondent. 2. This writ appeal is directed against the Judgment of the ld. Single Judge passed in W.P.(C) No. 205 of 2007. 3. The respondent while working as CT(GD) in CRPF contracted a second marriage with one Ms. Rehena Begam on 16.05.2002 while his first wife Piyarjan Begam was still alive and the marriage was in subsistence. In view of such second marriage without obtaining permission from the competent authority a Departmental Proceeding was initiated against the respondent on the charge that while working as CT(GD) in CRPF during the period from 29.05.1999 to 05.10.2004, he contracted a second marriage and as such, committed an act of misconduct in his capacity as a member of the Force under Section 11(1) of CRPF Act, 1949 since he contracted the second marriage with Ms. Rehena Begam while his first wife Smt. Piyarjan Begam was still alive, in violation of the CCS (Conduct) Rule, 1964. 4. In the Departmental Proceeding the respondent did not submit any written statement of defence and on the other hand admitted the charges levelled against him. However, it was the submission of the respondent that under the Personal Law, the respondent being a Muslim can have more than one wife. The Disciplinary Authority not being satisfied with such defence on consideration of the report of the Enquiry Officer in which the respondent was found guilty of charge, dismissed him from service. Challenging the said order of dismissal from service the writ application was filed before the Gauhati High Court (Imphal Bench). 5. It was contended on behalf of the respondent before the learned Single Judge that the respondent being a Muslim under the Personal Law, he is entitled to have more than one wife and so called misconduct alleged in the charge is curable one and therefore, the quantum of punishment being imposed against him dismissing from service is shockingly disproportionate. 6. It was contended on behalf of the respondent before the learned Single Judge that the respondent being a Muslim under the Personal Law, he is entitled to have more than one wife and so called misconduct alleged in the charge is curable one and therefore, the quantum of punishment being imposed against him dismissing from service is shockingly disproportionate. 6. It was the contention on behalf of the appellants before the learned Single Judge that contracting a second marriage, even if the Personal Law permits without permission of the Government is in violation of Rule 15 of the Central Reserve Police Force Rules, 1955 and such charge having been admitted by the respondent, the learned Single Judge should not have interfered with the punishment imposed. Shri Suresh, learned CGC appearing for the appellants relied on Rule 15 of the Central Reserve Police Force Rules, 1955 to substantiate his contention that even if the Personal Law permits a member of the Force to contract a second marriage, without obtaining prior permission from the Government for such second marriage if a member of the Force takes a second wife, it is in contravention of Rule 15 of the of the Rules, 1955 and therefore, the respondent was guilty of misconduct. It was further contended that the respondent admitted the charge levelled against him. Therefore, there was no scope on the part of the learned Single Judge to interfere with the order of punishment imposed by the Disciplinary Authority. 7. Shri M.I. Sharma, learned counsel appearing for the respondent, on the other hand, submitted that the only misconduct of the respondent was to have second wife without obtaining prior permission from the Government. It is further submitted that as the respondent was under impression that under the Personal law he is entitled to have a second wife, punishment of dismissal from service was grossly disproportionate. 8. Learned Single Judge took note of the relevant Rules as well as the personal law applicable to Muslims and concluded that not obtaining prior permission of the Government for second marriage is the only misconduct and for such misconduct, punishment of dismissal from service was uncalled for. The learned Single Judge also relied on some decisions and set aside the order of dismissal from service and directed the appellants to impose any appropriate punishment for the misconduct of the respondent. 9. The learned Single Judge also relied on some decisions and set aside the order of dismissal from service and directed the appellants to impose any appropriate punishment for the misconduct of the respondent. 9. Having heard the learned counsel appearing for the parties at length, we find that the charge levelled against the respondent for taking second wife without obtaining prior permission of the Government is admitted. There is no dispute that under the Personal Law, he is entitled to have more than one wife. It is true that the respondent could have more than one wife because of Personal law but he could take a second wife only after obtaining prior permission of the Government. Therefore, taking second wife as a Muslim being permissible under Personal Law the only charge is that prior permission of the Government before taking his second wife was not taken. Learned counsel appearing for the respondent relied on a decision of the Gauhati High Court in the case of Rohit Kumar Bhujel vs. Union of India reported in 2010 (1) GLD 102 (Gau). Exactly, under similar circumstances the Court was of the view that the punishment of dismissal from service was excessive and accordingly set aside the punishment of dismissal from service. In the case of Colourchem. Ltd. vs. A.L. Alaspurkar reported in 1998 (3) SCC 192 the Apex Court held that if the punishment imposed is shockingly disproportionate to the charges levelled against a delinquent, it may be open to the Court to interfere. Learned Single Judge has relied on the above decisions and referred to the decision of the Hon'ble Supreme court in the case of UP State Road Transport Corporation & Ors.-vs-Mahesh Kumar Linkra and others reported in 2000 (3) SCC 450 . 10. We have carefully examined the case in the light of the submissions made and conclusions arrived at by the learned Single Judge. Since Personal Law permits a Muslim to have more than one wife, the learned Single Judge was right in holding that not obtaining prior permission of the Government is the only misconduct which has been admitted and proved. Therefore, the learned Single judge was justified in holding that punishment of dismissal from service was shockingly disproportionate to the charge levelled against the respondent. While setting aside the order of punishment, the Court granted liberty to the appellants to impose any other appropriate punishment. Therefore, the learned Single judge was justified in holding that punishment of dismissal from service was shockingly disproportionate to the charge levelled against the respondent. While setting aside the order of punishment, the Court granted liberty to the appellants to impose any other appropriate punishment. We find no reason to interfere with the impugned order. 11. For the reasons stated above, we find not merit and dismiss the appeal. Interim order, if any, stands vacated. ___