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2019 DIGILAW 632 (GAU)

Fulan Ahmed Laskar v. Union of India

2019-05-21

N.KOTISWAR SINGH

body2019
JUDGMENT : N. Kotiswar Singh, J. Heard, Mr. F.U. Borbhuiya, learned counsel for the petitioner. Also heard Mr. K.K. Parasar, learned CGC for the respondent Nos.1 to 4. 2. In this petition, the petitioner has challenged his dismissal from service, vide impugned order dated 30.06.2016 on the ground that the charge against the petitioner has been proved, as also can be seen from the order of penalty vide order dated 30.06.2016. The charge levelled against the petitioner is as follows: "ARTICLE OF CHARGE-1 The allegation/accusation leveled against F/No. 041739135 CT/GD Fulan Ahmed Laskar, F/1st Bn, CRPF is that while being a member of the Force (CRPF) as per the provision of section 11(1) of CRPF Act, 1949, F/No. 041739135 CT/GD Fulan Ahmed Laskar, F/1 st Bn, CRPF neglected orders/ neglected his duties/ committed lapses in performing his duties/ did other misconducts including that while being a member of the Force, he divorce to his first wife (Smt. Afsana Begum Laskar) and married with Smt. Nilima Begum Laskar and again divorce to Smt. Nilima Begum Laskar and remarriage with his first wife i.e. Smt. Afsana Begum Laskar without the permission from competent officer and thus violated the provision of Rule 21 of CCS Conduct Rules. The said action of the personnel is punishable as per the provisions of Section 11(1) of CRPF Act, 1949 and rule 27 of CRPF Rules." 3. Perusal of the aforesaid charge would indicate that the charge of misconduct alleged against the petitioner is that while his wife was alive, the petitioner contracted a second marriage, thus violating provisions of Rule 21 of Central Civil Services (Conduct) Rules, 1964 [in short, CCS (Conduct) Rules]. 4. In order to appreciate the aforesaid charge, this Court would like to examine the undisputed facts to see whether the aforesaid charge can be said to have been sustained against the petitioner or not. The facts which have not been disputed by either of the parties are as follows: (i) On 27.02.2008, the petitioner got married to Smt. Afsana Begum Laskar. (ii) On 10.06.2009, Smt. Afsana Begum Laskar filed a divorced case against the petitioner before the Court of District Judge, Aizawl, Mizoram, which was registered as Divorce Case No.01/2009. (iii) On 06.10.2009, the said divorce petition was allowed, thus divorce decree was granted. As a result, the marriage of the petitioner with the aforesaid Smt. Afsana Begum Laskar was accordingly dissolved. (iii) On 06.10.2009, the said divorce petition was allowed, thus divorce decree was granted. As a result, the marriage of the petitioner with the aforesaid Smt. Afsana Begum Laskar was accordingly dissolved. In other words, they were no more wife and husband upon grant of divorce decree. (iv) On 20.11.2009, an appeal was filed by the said Smt. Afsana Begum Laskar against the said decree before the Gauhati High Court, Aizawl Bench in RFA No.13/2009 and this Court stayed the said decree. By virtue of the stay order passed, the relationship of wife and husband between the petitioner and the said Smt. Afsana Begum Laskar was restored. (v) On 09.03.2010, the High Court dismissed the aforesaid appeal for non-prosecution. As a consequence, the petitioner and the said Smt. Afsana Begum Laskar no more remained as husband and wife from that day onwards. (vi) On 17.03.2010, soon after the dismissal of the appeal by the High Court, as the petitioner no more remained the husband of the said Smt. Afsana Begum Laskar, the petitioner married Smt. Smt. Nilima Begum Laskar, stated to be the second wife. (vii) On 05.07.2010, in the meantime, after the petitioner got married to Smt. Nilima Begum Laskar, the divorce appeal was restored to file by the High Court. (viii) On 10.03.2011, the divorce granted by the District Court, Aizawl was set aside by the High Court and as a result the petitioner and the aforesaid Smt. Afsana Begum Laskar again became husband and wife. In other words, as on 10.03.2011 the petitioner can be said to be married to both Smt. Afsana Begum Laskar and Smt. Nilima Begum Laskar. (ix) On 18.04.2013, the second wife Smt. Nilima Begum Laskar and the petitioner got divorced on mutual agreement. In other words, after 18.04.2013, the petitioner no more remained husband of the said Smt. Nilima Begum Laskar. (x) On 30.04.2013, the petitioner remarried Smt. Afsana Begum Laskar though the said re-marriage was not necessary as the divorce granted by the District Judge had been set aside, thus, restoring the relationship of the husband and wife between the petitioner and Smt. Afsana Begum Laskar. Thus, there was no legal necessity of entering into a marriage again by the petitioner with the said Smt. Afsana Begum Laskar on 30.04.2013. (xi) As far as the above factual narration of the case is concerned, there is no dispute amongst the parties. 5. Thus, there was no legal necessity of entering into a marriage again by the petitioner with the said Smt. Afsana Begum Laskar on 30.04.2013. (xi) As far as the above factual narration of the case is concerned, there is no dispute amongst the parties. 5. It may be observed that on 17.03.2010, when the petitioner got married to Smt. Nilima Begum Laskar, there was no subsisting relationship of husband and wife between the petitioner and the Smt. Afsana Begum Laskar. Therefore, when the petitioner married Smt. Nilima Begum Laskar on 17.03.2010, the question of committing any offence of misconduct contemplated under Rule 21 of the CCS (Conduct) Rules does not arise. It may be also mentioned that on 17.03.2010, when the petitioner married Smt. Nilima Begum Laskar, he could not have anticipated at that time that the appeal pending before the High Court would be restored and the divorce decree would be set aside, thus restoring the original relationship of husband and wife between the petitioner and Smt. Afsana Begum Laskar. In other words, when the petitioner married Smt. Nilima Begum Laskar on 13.07.2010, there was no intention of contracting a second marriage during the subsistence of first marriage, as the first marriage did not exist at that time. The first marriage was restored/ revived only after the High Court dismissed the appeal, set aside the divorce decree only on 10.03.2011. Therefore, only after 10.03.2011 it can be said that the petitioner is married to both the first and second wife. 6. This Court is of the view that the aforesaid situation was not a deliberate creation of the petitioner but a consequence of a legal procedure of which perhaps he did not contemplate. Misconduct cannot be misconduct if there was no intention to commit such an offence. The misconduct covered under Rule 21 contemplates that the person during the subsisting of a valid marriage knowingly contracts another marriage, which is prohibited under Rule 21. Rule 21 does not contemplate such a situation arising as in the present case where there was no intention to marry another time during the subsistence of an earlier marriage. 7. That apart, the charge against the petitioner is not merely contracting marriage with Smt. Nilima Begum Laskar but re-marriage with first wife Smt. Afsana Begum Laskar without permission to the Competent Authority as mentioned in the charge. 8. 7. That apart, the charge against the petitioner is not merely contracting marriage with Smt. Nilima Begum Laskar but re-marriage with first wife Smt. Afsana Begum Laskar without permission to the Competent Authority as mentioned in the charge. 8. On this issue also, this Court is of the view that no such offence is made out. When the divorce granted by the District Judge in Aizawl was set aside by the High Court, the relationship of husband and wife between petitioner and the Smt. Afsana Begum Laskar was restored and as such the question of re-marriage the said Smt. Afsana Begum Laskar does not arise, even if the petitioner arranged to have the second marriage performed with Smt. Afsana Begum Laskar. That was not required and it was a redundant exercise for the reason that once the divorce decree was set aside, the original marital status of husband and wife got restored automatically, which would not require any further undergoing of any remarriage. Once, the divorce decree was set aside, it would be deemed that there was no divorce. 9. This Court has also noted that after the divorce was set aside by the High Court as mentioned above, on 10.03.2011, the second wife Smt. Nilima Begum Laskar, got divorced from the petitioner on mutual agreement on 18.04.2013 and it was only after the mutual divorce from Smt. Nilima Begum Laskar that the petitioner contracted re-marriage with Smt. Afsana Begum Laskar. Even if assuming that the petitioner contracted re-marriage with Smt. Afsana Begum Laskar on 30.04.2013 at that time, there was no valid relationship between petitioner and second wife Smt. Nilima Begum Laskar as prior to it on 18.04.2013 she had already got divorced from the petitioner. In other words, when the petitioner contracted the second marriage again with the said first wife Smt. Afsana Begum Laskar, he was not married to Smt. Nilima Begum Laskar. 10. Under the facts and circumstances as narrated, which are not disputed amongst the parties, this Court fails to understand how the petitioner can be charged of committing the offence of misconduct for violating of provisions of Rule 21 of the CCS (Conduct) Rules. 10. Under the facts and circumstances as narrated, which are not disputed amongst the parties, this Court fails to understand how the petitioner can be charged of committing the offence of misconduct for violating of provisions of Rule 21 of the CCS (Conduct) Rules. If that is only the charge, this Court is afraid, the penalty also cannot be sustained for the reason that the petitioner cannot be said to have committed any offence for violating the provisions of Rule 21 of the CCS (Conduct) Rules. 11. In that view of the matter, the impugned order of penalty of dismissal order dtd. 30.06.2016 cannot be sustained and is accordingly set aside. The petitioner is entitled to be reinstated in service with immediate effect. 12. It is also clarified that the period from the date of dismissal on 30.06.2016 up to the date of reinstatement will be treated to be in service and shall be entitled to all the benefits including seniority etc. 13. This Court is of the view that since the petitioner has been visited with the penalty of dismissal for no fault of him, as the order of penalty of dismissal cannot be justified on any ground for commission of alleged violation of Rule 21 as mentioned above, he will be entitled to full benefits including salary. Learned counsel for the petitioner has relied on the following decisions of Hon'ble Supreme Court, (1). K.R. Deb Vs. The Collector of Central Excise, Shillong, (1971) 2 SCC 102 and (2). Kanailal Bera Vs. Union of India and Others, (2007) 11 SCC 517 and also submits that when such penalty is unreasonable and no fault can be attributed to the employee, the petitioner will be entitled to full salary. 14. In view of the above, this Court is of the opinion that it may not be necessary to dwell open other raised in this petition as the petition succeeds on the aforesaid ground. 15. With the above observations and directions, this petition is allowed.