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2016 DIGILAW 508 (JHR)

Purushottam Pandey v. State of Jharkhand

2016-03-19

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. In the accompanied writ application, the petitioner has inter alia prayed for issuance of an appropriate writ in the nature of certiorari for quashing the order dated 28.03.2008, passed by the disciplinary authority (Superintendent of Police, West Singhbhum, Chaibasa), pertaining to removal from services and for issuance of writ of mandamus for reinstatement of petitioner with all consequential benefits in accordance with law. 2. The factual matrix, as delineated in the writ application, in a nutshell, is that the petitioner was initially appointed as a Police Constable on 05.03.1987. While continuing, as such, basing on the complaint of one Geeta Devi, a departmental proceeding was initiated against the petitioner on 15.10.2005 on the alleged charges of having contracted with second marriage during the subsistence of first marriage without permission of the Department. The second charge against the petitioner was that the petitioner was not taking care of the respondent no. 5 and her son. In pursuance to the charge, the enquiry officer was appointed and the enquiry officer after perusing the documents and examining the evidences, came to the conclusion that the charges levelled against the petitioner are true but categorically stated in the enquiry report that both the marriages were solemnized before the petitioner's entry into service. It is further averred in the writ application that the case filed by the Respondent No. 5 in the court of the Chief Judicial Magistrate, Buxer, numbered as 25 (M) of 1993 against the petitioner under Section 125 of Cr.P.C. was dismissed by the learned court. The disciplinary authority on perusal of the findings of the enquiry officer, passed an order of removal of the petitioner from services on 28.03.2008 vide Annexure-5 to the writ application. Being aggrieved by the impugned order of punishment, the petitioner preferred an appeal before the respondent no. 3, i.e. Deputy Inspector General of Police, Kolhan Range, Chaibasa. During pendency of the writ application, the appeal preferred by the petitioner has been rejected vide order dated 21.08.2012, thereby confirming the order of the disciplinary authority. Being aggrieved by the impugned order of punishment, the petitioner having no other alternative, speedy and efficacious remedy, has invoked the extraordinary jurisdiction of the Court under Article 226 of the Constitution of India for redressal of his grievances. 3. Heard Mr. (Dr.) S. N. Pathak, learned senior counsel for the petitioner and Ms. Being aggrieved by the impugned order of punishment, the petitioner having no other alternative, speedy and efficacious remedy, has invoked the extraordinary jurisdiction of the Court under Article 226 of the Constitution of India for redressal of his grievances. 3. Heard Mr. (Dr.) S. N. Pathak, learned senior counsel for the petitioner and Ms. Nikita Agrawal, learned J.C. to A.G. for the respondent-State. 4. Mr. (Dr.) S. N. Pathak, learned senior counsel for the petitioner has vehemently submitted that the order of the disciplinary authority indicates that he has gone beyond the allegation/charges. According to the learned senior counsel, the concealment of information of bigamy is not the charge but the charge is that without obtaining permission of the authority, the second marriage has been solemnized. The learned senior counsel for the petitioner further submits that the second charge relating to grant of maintenance has been dismissed by the learned Chief Judicial Magistrate, Buxer vide Annexure-4 to the writ application. Since both the charges have not been proved, the action of the respondents in inflicting the major punishment amounts to colourable exercise of power. The learned counsel for the petitioner further submits that the impugned order is against the provision of the Bihar Government Servant's Conduct Rules as well as provisions of the Police Manual. In the last limb of the arguments, the learned senior counsel has submitted that the punishment of dismissal from service is very harsh, disproportionate, excessive and does not commensurate with the charges. In order to buttress his submissions, learned senior counsel for the petitioner has referred to the following decisions :- (i) in the case of Subodh Kumar versus Union of India reported in 2002 (4) PLJR 608 ; (ii) in the case of Gop Chand Rai versus State of M.P. reported in 2004 (2) MPHT 21 5. Per contra, counter affidavit has been filed, on behalf of the respondents, repelling the contentions made in the writ application. In the counter affidavit, it has been inter alia, submitted that the departmental proceeding No. 72 of 2005, which was commenced against the petitioner, based on serious charges. Per contra, counter affidavit has been filed, on behalf of the respondents, repelling the contentions made in the writ application. In the counter affidavit, it has been inter alia, submitted that the departmental proceeding No. 72 of 2005, which was commenced against the petitioner, based on serious charges. After considering all the pros and cons of the allegations and the evidences on record and the enquiry report, the disciplinary authority found the petitioner guilty of serious charges and passed an order of dismissal from services, therefore, there is no infirmity in the impugned order, nor the same suffers from any illegality. 6. After hearing the learned counsel for the respective parties and on perusal of the records and having given my anxious consideration to the documents on records, I am of the considered view that the learned senior counsel for the petitioner has been able to make out a case for interference due to the following facts :- (i) Admittedly, in the case in hand, the charge pertains to solemnization of second marriage during subsistence of the first marriage and for grant of maintenance. As has been disclosed in the writ application, the first marriage of the petitioner was solemnized in the year 1979 and the second marriage of the petitioner was solemnized in the year 1982 much prior to entry of petitioner into the Government service i.e. of the year 1987, therefore, by no stretch of imagination, the petitioner could have obtained prior permission from the respondents-authorities to contract the second marriage. So far as Rule 707 A of the Police Manual is concerned, Rule 707 A envisages, Bigamous marriages – (i) No police officer who has wife living, shall contract another marriage without first obtaining the permission of the Government. It would be pertinent to refer to Rule 23 of the Bihar Government Servant's Conduct Rules, which reads as under :- 23. Restriction regarding marriage– (1) No Government Servant shall ever enter into, or contract, a marriage with a person having a spouse living ; and (2) No Government Servant having a spouse living shall enter into, or contract, a marriage with any person. Restriction regarding marriage– (1) No Government Servant shall ever enter into, or contract, a marriage with a person having a spouse living ; and (2) No Government Servant having a spouse living shall enter into, or contract, a marriage with any person. In the instant case, the aforesaid provisions is applicable only after entering into Government service, but admittedly, the alleged second marriage has taken place in the year 1982 and the petitioner entered into service in the year 1987, so by no means, the second marriage would amount to bigamous marriage or would amount to any violation of Conduct Rules. (ii) The question that falls for determination is as to whether even if the charges against the petitioner are held to be proved, the punishment of dismissal could be justified. Ordinarily, this Court does not interfere with the quantum or the nature of the punishment, which falls within the realm of the power of the disciplinary authority. The Hon'ble Apex Court has held that even though the High Court cannot interfere with the nature or quantum of punishment, in an appropriate case whether the punishment order to the delinquent is found to be harsh, excessive or disproportionate, it may direct the disciplinary authority to reconsider the same. The effect of committing plural marriage would undoubtedly attract the mischief of Rule 23 of the Bihar Government Servant's Conduct Rules and Rule 707 A of the Police Manual. The question is whether the effect of committing plural marriage should invite the extreme punishment of dismissal from service. Though, the effect of contracting plural marriage may undoubtedly be violative of the statutory provisions pertaining to conduct of the person concerned, it may have no connection with the acts of disobedience, neglect of duty or remissness in discharge of any duty and/or other misconduct in his capacity as a member of the disciplined force. (iii) So far as the instant case is concerned, relatively minor punishment may serve the ends of justice, because it would be in the ends of justice to reinstate the petitioner and to give him a chance. After all, the question of livelihood is involved. In the circumstances, relatively minor punishment may serve the ends of justice. (iii) So far as the instant case is concerned, relatively minor punishment may serve the ends of justice, because it would be in the ends of justice to reinstate the petitioner and to give him a chance. After all, the question of livelihood is involved. In the circumstances, relatively minor punishment may serve the ends of justice. Another fact, which cannot be lost sight of, is the human problem, whether a person should be meted with such a severe punishment for not obtaining the prior permission of the second marriage, will have to be determined by this Court, taking into account the consequences that will be visited on both the first wife as well as the second wife and the children. (iv) As far as the misconduct is concerned, this is an open and shut case. However, the folly committed by the petitioner, was that he did not disclose the factum of second marriage to the authorities, therefore, it can be safely said that the punishment of dismissal from service will leave both the wives and the child shattered and in a state of penury and destitution. 7. For the reasons stated in the foregoing paragraphs, the impugned order of punishment dated 28.03.2008 and the order of the appellate authority (Respondent No. 3) dated 21.08.2012 are quashed and set aside and the respondents are directed to reconsider the case of the petitioner on the quantum of punishment, strictly in accordance with law, keeping in view the facts and circumstances of the case and the observation made hereinabove. 8. This writ petition is accordingly, disposed of.