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Gujarat High Court · body

2016 DIGILAW 2199 (GUJ)

Babubhai Asari v. Union of India

2016-11-29

A.Y.KOGJE, ANANT S.DAVE

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JUDGMENT : A.Y. Kogje, J. 1. This petition under Article 226 of the Constitution of India is filed with following prayers:- “16. a. That your honour be pleased to admit and allow this petition. b. That your honour be pleased to quash and set aside the said impugned order dated 31/5/2013 passed by the Resp no.2 herein by Dismissing the petitioner from Service; and the subsequent Appeal order passed by Resp no.3 herein & dated 20/7/13; as also the Revision order dated 22/11/2013 passed by the Resp no.4 herein for the reasons as contended by the petitioner in the present petition memo hereinabove. c. That your honour be pleased to so allow the present petition by directing the respondent authorities to allow the voluntary retirement of the petitioner” 2. The facts in nutshell are that the petitioner came to be recruited with the respondent Central Reserve Police Force on 3.4.1991 and served in the force till 31.5.2013. 2.1 It appears that the petitioner came to be dismissed from service on 31.5.2013 considering him to have committed misconduct of plural marriage barred under Rule 15 of Central Reserve Police Force Rules, 1955. 2.2 It appears that after having put in 20 years of service, when the petitioner was eligible for voluntary retirement had applied for voluntary retirement and during verification of his pension papers, the department realized that the petitioner was earlier married to one Bhuriben in the year 1990 and, thereafter, in the year 1999 he had married to one Ranjanben. 2.3 Based on this fact coming to light, the petitioner was charge-sheeted and after the departmental inquiry was dismissed from service and consequentially his application for voluntary retirement also came to be rejected. 2.4 As provided under the Central Reserve Police Force Act, 1949 (For short, “CRPF Act”) the petitioner first preferred an appeal under Section 28 of the Act which came to be rejected by an order dated 20.7.2013 and, against the order in appeal, the petitioner also preferred a revision application under Section 29 of the CRPF Act, the revision application also came to be rejected vide order dated 22.11.2013. It is against this decision of the department that the petitioner has filed present petition. 3. Heard learned advocate Mr. G. Ramakrishnan for the petitioner. He contended that the petitioner belongs to an Adivasi community (Asari), which is popularly known as Dungri Garasiya. It is against this decision of the department that the petitioner has filed present petition. 3. Heard learned advocate Mr. G. Ramakrishnan for the petitioner. He contended that the petitioner belongs to an Adivasi community (Asari), which is popularly known as Dungri Garasiya. He referred to the Caste Certificate which is at Annexure-D to substantiate his claim that the petitioner belongs to the Scheduled Tribe. 3.1 He contends that as the petitioner though was married to Bhuriben in the year 1990 on account of certain domestic differences, by mutual consent, adopted the customary divorce by calling the Panchayat of that tribal community on 29.6.1997 and that their marriage was declared to have ended by such customary divorce. 3.2 He contends that as his marriage with Ranjanben took place in the year 1999 i.e. after his customary divorce from Bhuriben, the first marriage was no more in existence and subsisting. 3.3 He also contends that the provisions of the Hindu Marriage Act, 1955 will also not be attracted as the petitioner is a member of the Scheduled Tribe, which is defined in Clause (25) of Article 366 of the Constitution of India and, therefore, the customary divorce within his community is a recognized mode of divorce to bring an end to an existing marriage. 3.4 He contends that therefore, Rule 15 of the CRPF Rules would not be attracted to the facts of his case and the marriage with Ranjanben in the year 1999 cannot be termed to be second marriage contracted while the first marriage was in force or his wife was living. He submits that considering the long and meritorious service the case of the petitioner ought to have been considered for voluntary retirement, more particularly, when the alleged act of misconduct is not even remotely connected to the discharge of his service. 4. As against this, learned advocate for the respondent while relying on the affidavit-in-reply on behalf of the CRPF contends that the petitioner while serving as a Head Constable, General Duty, has committed an act of indiscipline in his capacity as a member of the Force by entering into second marriage with Ranjanben without prior permission of the Government or lawful divorce decree with first wife Bhuriben. This act being prejudicial to the good order and discipline of the force, the department thought fit to embark upon an inquiry. This act being prejudicial to the good order and discipline of the force, the department thought fit to embark upon an inquiry. 4.1 He submits that the department had adopted proper procedure of appointing an inquiry officer and the inquiry officer having collected necessary evidence has given his finding as per the charges framed. The disciplinary authority having accepted the findings of the inquiry officer held that the charges framed against the petitioner are proved and, hence, passed an order of penalty of dismissal from service on 31.5.2013. He, therefore, would submit that the department has followed proper procedure and arrived at a proper finding of second marriage while first marriage was existing and, hence justified in inflicting the punishment. He further submits that so far as the voluntary retirement is concerned, initially the same was accepted by the competent authority but at the time of verifying the nominations the fact of second marriage came to the light and, hence, at that stage the department was justified in initiating the proceedings of departmental inquiry. 4.2 He also submits that even after the order of dismissal by the disciplinary authority the decision was upheld in the appeal provided for under the Act and the revision was also rejected. Therefore, no interference is required with the decision of the department. He, therefore, urges the petition be rejected. 5. We have heard learned advocates for both sides and have gone through the relevant documents for the purpose, which are produced on record. 6. Section 2 of the Hindu Marriage Act, 1955 relates to application of the Act and Section 2 (2) reads as under:- “2. (2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.” 7. Article 366 of the Constitution of India provides for definitions for giving meanings to the expressions, whereby Clause-(25) defines “Scheduled Tribe” and reads as under:- “(25) “Scheduled Tribes” means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution;” 8. Article 342 which falls in Part 16 of the Constitution of India relates to special provisions relating to certain classes and it reads as under:- “Art. 342. Scheduled Tribes.- (1) The President [may with respect to any State [or Union territory], and where it is State, after consultation with the Governor thereof], by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State [or Union territory, as the case may be]. (2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.” 9. In exercise of powers conferred by Clause (1) of Article 342, the Constitution (Scheduled Tribes Order) 1950 was issued wherein for the State of Gujarat covered in para 4 of the order Tribe Dungri Garasiya is reflected at serial no.4. The Court also perused the Caste Certificate produced at Annexure-D to ascertain that the petitioner, who belongs to Village-Malasa, Taluka-Bhiloda of Sabarkantha District in Gujarat is an Adivasi Dungri Garasiya covered under the aforementioned order. 10. In view of aforementioned fact, it is clear that as the petitioner is a member of the Scheduled Tribe he is exempted from the provisions of the Hindu Marriage Act, which otherwise envisages a decree of divorce to be pronounced by a Court of competent jurisdiction to bring an end to an existing marriage. The customary divorce is, therefore, an accepted mode of annulling existing marriage for a member of the Tribe. 11. Therefore, when the petitioner is divorced under the procedure adopted for the customary divorce from his first wife Bhuriben in the year 1997 and thereafter in the year 1999 has entered into second marriage with Ranjanben then it cannot be said that the petitioner, who is a member of CRPF, has contracted any other marriage without obtaining permission of the Government. Rule 15 of the CRPF Rules as under:- “15. Rule 15 of the CRPF Rules as under:- “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.” 12. This Court is, therefore, unable to accept the arguments of the department that when the petitioner married Ranjanben, the first marriage with Bhuriben was existing. The petitioner who had already divorced under the practice of customary divorce and once divorced there was no obligation under Rule 15 for the petitioner to seek permission of the Government before entering the marriage with Ranjanben. This Court is, therefore, of the view that, in the facts of this case, there is no plural marriage as contemplated in Rule 15 of the CRPF Rules. The Court also perused the relevant documents in support of the fact that the marriage is annulled by way of customary divorce executed in writing, which is produced along with the case papers by the department. The record produced by the department also indicates the relevant documents in the form of Certificate from the Panchayat to establish the divorce from the first wife and marriage with Ranjanben subsequently. Considering these documents on record, it appears that the department has erroneously proceeded on the plurality of marriage clause. 13. As the department has invoked Section 11 of the CRPF Act 1949, while passing the order of dismissal, it would be useful to reproduce Section 11 of the CRPF Act, 1949. “Section 11. 3. Considering these documents on record, it appears that the department has erroneously proceeded on the plurality of marriage clause. 13. As the department has invoked Section 11 of the CRPF Act 1949, while passing the order of dismissal, it would be useful to reproduce Section 11 of the CRPF Act, 1949. “Section 11. 3. Minor punishments.- (1) The Commandant or any other authority or officer as may be prescribed, may, subject to any rules made under this Act, award in lieu of, or in addition to, suspension or dismissal any one or more of the following punishments to any member of the Force whom he considers to be guilty of disobedience, neglect of duty, or remissness in the discharge or any duty or of other misconduct in his capacity as a member of the Force, that is to say,- (a) reduction in rank; (b) fine of any amount not exceeding one month's pay and allowances; (c) confinement to quarters, lines or camp for a term not exceeding one month; (d) confinement in the quarter-guard for not more than twenty-eight days, with or without punishment drill or extra guard, fatigue or other duty; and (e) removal from any office of distinction or special emolument in the Force.” 14. The close reading of Section 11, which provides for minor punishments for the member of the Force, he is considered to be guilty of disobedience, neglect of duty or remissness in the discharge of any duty or of other misconduct. If the case of the department is to be believed then also the act for which the department has proceeded against the petitioner, at best will fall under the heading of “other misconduct” and the minor punishment prescribed therein if taken into consideration then also the department was not justified in inflicting the punishment of dismissal as the same is not even contemplated under Section 11 of the CRPF Act. 15. For the foregoing reasons, this petition is allowed. This Court is of the view that the department has proceeded on an erroneous premise to attract Rule 15 of the CRPF Rules for plural marriage in the facts of the present case and, hence, the order impugned dated 31.5.2015 in this petition deserves to and is hereby quashed and set aside. Consequentially, the order in appeal dated 20.7.2013 and the order in revision dated 22.11.2013 are also quashed and set aside. 16. Consequentially, the order in appeal dated 20.7.2013 and the order in revision dated 22.11.2013 are also quashed and set aside. 16. In view of the aforesaid, the department is directed to process the application of the petitioner for voluntary retirement as if the order of dismissal dated 31.5.2013 is not existing, subject to fulfillment of other requirements under the Scheme of Voluntary Retirement. Rule is made absolute to the aforementioned extent. In the facts of this case, no order as to costs.