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2017 DIGILAW 56 (JHR)

Suhawan Paswan v. State of Jharkhand

2017-01-10

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. In the accompanied writ application, the petitioner has inter alia prayed for quashing memo dated 10.10.2006, whereby petitioner has been removed from services and appellate order dated 22.03.2007 whereby appeal preferred by the petitioner has been rejected confirming the order passed by the disciplinary authority and revisional order dated 27.12.2008, whereby revision preferred by the petitioner has been rejected and further direction upon the respondents to reinstate the petitioner in service with all consequential benefits. 2. The brief facts, as delineated in the writ application, is that the petitioner was appointed on the post of Constable on 01.12.1982. It has been stated that the prior to his appointment the petitioner married to one Yasodha Devi in the year 1967-68 and out of their wedlock one daughter and two sons are there. However, with the consent of her first wife, the petitioner contracted second marriage in the year 1992. After passage of time, basing on the application of her first wife along with the certificate of one Dharamvir Mahto, claiming himself to be the member of Panchayat Samitee dated 11.09.2003, a complaint was lodged before Superintendent of police, Jamshedpur that the petitioner has stopped to maintain his first wife and their children. Basing on these allegation, a departmental proceeding was initiated which resulted in passing of impugned order, whereby the petitioner has been dismissed from services. 3. Learned counsel for the petitioner submitted that the first wife of the petitioner has never instituted any case under Section 498-A or 494 of the Indian Penal Code against the petitioner and only by taking her L.T.I one complaint has been lodged against him and no opportunity has been afforded to cross-examine the said Dharamvir Mahto. It has further been submitted that petitioner though filed show cause reply denying the allegation leveled against him and submitted that he is maintaining his first wife and their children properly and further he contracted second marriage with the consent of his first wife but that has been disbelieved without any rhyme and reason by the enquiry officer. It has further been submitted that when the first wife of the petitioner was examined on 30.12.2003, she did not speak anything on the specific question that whether she had made any protest when the petitioner brought his second wife or did she ever make any complaint in writing. It has further been submitted that when the first wife of the petitioner was examined on 30.12.2003, she did not speak anything on the specific question that whether she had made any protest when the petitioner brought his second wife or did she ever make any complaint in writing. Petitioner has also assailed the impugned order on the specific ground of parity and contended that in the case of one Rajwali Rai, who also contracted second marriage during the life time of first wife only the punishment of ‘Nindan’ (Annexure 10) has been passed. Similarly, in the case of Gopal Paswan, only ‘forfeiture of salary’ for one year has been passed and further in the case of one Arvind Pandey, he has been awarded punishment of ‘reduction of pay-scale with cumulative effect’. But, in the case of petitioner extreme punishment has been awarded. It has further been submitted that after removal from services, since the petitioner failed to pay maintenance to his first wife, she moved before Family Court, Patna for ad-interim maintenance, which was allowed vide order dated 13.06.2006, since the petitioner is out of service, hence, it was not possible to deduct the salary of the petitioner. It has further been submitted that having left with no alternative, the first wife of the petitioner sworn an affidavit that they are now staying together and the allegation made against the petitioner was not written by her. 4. Learned counsel for the respondents submitted that bigamy is legally barred under the Hindu law and basing on such complaint a departmental proceeding was initiated against the petitioner resulting in passing of impugned order. The petitioner being in police force is supposed to be well-versed with the legal aspects of second marriage and is highly expected to abide by law, hence, the impugned order of punishment needs no interference. 5. Having heard learned counsel for the parties at length and on giving my anxious consideration to the materials available on record, it is not in dispute that the petitioner contracted second marriage during the life time of his first wife but for more than a decade the first wife remained mum over the issue and when on her complaint her husband has been ousted from service and she has not been paid maintenance, she has sworn an affidavit stating that she had not filed any written complaint against her husband. Be that as it may be, it is well settled that bigamy is legally barred under the Hindu law but for the same offence the petitioner has cited some cases where lesser punishment has been awarded that submission has not been controverted by the respondents, hence, the submission to that effect remains intact on the doctrine of non-traverse. 6. Generally Court precludes from interfering with the impugned order, unless the punishment order is one which shocks the conscience of the Court but, in the case at hand, the impugned order appears to be shockingly disproportionate and in not commensurate with the charges, hence, on the ground of doctrine of proportionality also needs interference. 7. Regard being had to the aforesaid discussions, the impugned order dated 10.10.2006, whereby petitioner has been removed from services and the appellate order dated 22.03.2007 and revisional order dated 27.12.2008 are hereby quashed and set aside and the respondents are directed to reinstate the petitioner in services forthwith, without back wages, and after reinstatement pass a fresh order taking into consideration the observations made by this Court in the preceding paragraphs, particularly on the ground of parity and doctrine of proportionality within a period of twelve weeks from the date of receipt/production of copy of this order. 8. With the aforesaid observations and directions, the writ petition stands disposed of. Petition disposed of.