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2017 DIGILAW 863 (MP)

State of M. P. v. Kailashvan Goswami

2017-07-26

P.K.JAISWAL, VED PRAKASH SHARMA

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ORDER 1. Order dated 30.11.2007 passed by the learned writ Court in Writ Petition No.6711/2003 is impugned in this intra Court appeal. 2. The respondent started his career on 15.11.1972 as Constable in Madhya Pradesh Police. When he was posted as Constable in DRP Lines, Jhabua, a show cause notice dated 16.3.1998 was issued to him by the Department calling upon him to explain as to why he has married with one Kalawati while his earlier wife viz. Suganbai was alive, which amounts to contravention of rule 22 of the M.P. Civil Services (Conduct) Rules, 1965 (hereinafter, for short, “1965 Rules”). Minor penalty of stoppage of one increment for one year was also proposed. 3. Instead of proceeding with the aforesaid show cause notice proposing penalty, the Department commenced a regular departmental inquiry against the respondent by issuing a charge sheet under the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter, for short, “1966 Rules”) on 4.6.1998. Apart other witnesses, Smt. Suganbai and Smt. Kalawati were also examined in the departmental inquiry. The Inquiry Officer vide report dated 18.12.1998 found that the respondent has two wives alive. It was followed by a show cause notice with regard to infliction of penalty, which was responded to by the respondent. Thereafter, the respondent was handed over the punishment of compulsory retirement. The appeal preferred by the respondent so also the mercy petition filed against the order of compulsory retirement were dismissed. 4. The order of compulsory retirement, dismissal of appeal and order of dismissal of mercy petition were challenged by the respondent before the learned writ Court, inter alia on the ground that rule 22 of the 1965 Rules was squarely not applicable in the facts and circumstances of the case and that, the whole exercise of enquiry culminating in punishment of compulsory retirement of the respondent is completely illegal and void. It was further contended that the finding of Inquiring Officer is against the provisions of rule 22 of 1965 Rules and that the punishment handed over to the respondent was illegal and uncalled for. 5. The learned writ Court vide the impugned order found that the material produced in the departmental inquiry revealed that the respondent had performed the first marriage in 1964 and the second marriage in 1967, while he joined the Government service on 15.11.1972. 5. The learned writ Court vide the impugned order found that the material produced in the departmental inquiry revealed that the respondent had performed the first marriage in 1964 and the second marriage in 1967, while he joined the Government service on 15.11.1972. Thus, it was found that both the marriages were performed by the respondent prior to entering into employment i.e. he was not a Government servant. Learned writ Court was further of the view that in view of rule 22 of 1965 Rules, the Government servant cannot contract another marriage without prior permission else it will amount to misconduct and that the said rule does not disqualify the person who is aspirant to get the employment, rather it merely puts an embargo to seek permission to contract another marriage. As both the marriages were performed by the respondent prior to entering into employment, therefore, it was held that a case of misconduct within the purview of rule 22 of the 1965 Rules is not made out, hence, the order of penalty passed by the disciplinary authority and affirmed by the appellate authority and the order rejecting the mercy petition are liable to be quashed. Accordingly, the writ petition preferred by the respondent was allowed and the appellant Department was directed to forthwith reinstate the respondent, if he has already not attained the age of superannuation, with backwages and other consequent relief. 6. Feeling aggrieved with the aforesaid order of learned writ Court, the appellant State has come in this intra Court appeal. The contention is that the learned writ Court has committed a serious legal error in holding that the conduct of the respondent in entering into two marriages does not amount to infraction of rule 22(1) of the 1965 Rules, therefore, the impugned order setting aside the penalty of compulsory retirement is liable to be reversed. 7. Per contra, it is submitted by the learned counsel for the respondent that in the wake of the finding that the respondent contracted both the marriages prior to entering into service, rule 22(1) of the 1965 Rules was squarely not applicable. Reference in this regard is made to the language of rule 22(1) of 1965 Rules, which runs as under : “22. Reference in this regard is made to the language of rule 22(1) of 1965 Rules, which runs as under : “22. Bigamous marriages (1) – No Government servant who has a wife living shall contract another 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 him.” The submission is that in view of the explicit language of rule 22(1) and considering the fact that the Department failed to establish that the respondent contracted the second marriage after joining the Government service, the order passed by the learned writ Court cannot be said to be erroneous, therefore, this appeal is liable to be dismissed. 8. We have heard the learned counsel for the parties and perused the record. 9. A plain reading of rule 22(1) of 1965 Rules, (quoted supra), makes it clear that a Government servant who has a wife living, if contracts another marriage without first obtaining the permission of the Government, then he will be held liable for misconduct. The question of procuring permission for second marriage in the life time of first wife by a person who is not in employment, meaning thereby, prior to employment, may not at all arise, therefore, it is the second marriage during the life time of first wife after entering into service, which falls within the category of misconduct under rule 22(1) of 1965 Rules. In the instant case, the learned writ Court, on the basis of evidence adduced in the enquiry, particularly the statement of Smt. Suganbai and Smt. Kalavati, who were examined respectively as (PW1) and (PW2) in the departmental inquiry, has found that the first marriage was of year 1964 while the second marriage was of year 1967. The testimony of these two witnesses in this regard has remained unchallenged in the sense that no evidence was laid to controvert the same. As a matter of fact, no plausible evidence was there before the Enquiry Officer indicating that the respondent contracted the second marriage after entering into employment. 10. In the aforesaid premises, the finding arrived at in the departmental inquiry holding the respondent guilty of misconduct under rule 22(1) of 1965, was clearly contrary to the relevant Rules as well as evidence placed before the Enquiry Officer. 10. In the aforesaid premises, the finding arrived at in the departmental inquiry holding the respondent guilty of misconduct under rule 22(1) of 1965, was clearly contrary to the relevant Rules as well as evidence placed before the Enquiry Officer. Therefore, it cannot be said that the learned writ Court committed any error in setting aside the order of penalty imposed against the respondent. 11. In view of the aforesaid, this appeal having no force, deserves to be and is accordingly hereby dismissed. Parties to bear their own costs.