Afroz Khan vs State Of U.P. And Others
2014 Latest Caselaw 1265 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 59
 

 
Case :- WRIT - A No. - 43147 of 2010
 
Petitioner :- Afroz Khan
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Prateek Sinha,Anand Ji Mishra,Bhaiya Ram Maurya,K.K.Pandey,Kamal Kesarwani
 
Counsel for Respondent :- C. S. C.
 

 
Hon'ble B. Amit Sthalekar,J.

The petitioner in this writ petition is seeking the quashing of the order dated 19.04.2008 by which the penalty of dismissal from service was imposed against the petitioner who was a Constable in U.P. Civil Police. The second order dated 19.01.2009 is the order rejecting the petitioner's appeal. The third order is dated 23.04.2010 by which the petitioner's revision has also been rejected.

The petitioner was a Constable in U.P. Civil Police. He was married to one Smt. Shahroz and had one son aged 9 years through that marriage. During the existence of the first marriage, he entered into a second marriage with one Smt. Rubina Bano from whom he had no issue. A charge sheet was issued to the petitioner on 7.4.2007 on the ground of having contracted a second marriage during the subsistence of the first marriage in spite of the fact that he was a government servant and could not have contracted a second marriage without the permission of Competent Authority. The petitioner submitted his reply to the charge sheet on 18.5.2007. An inquiry was held and on the basis of the report of the Inquiry Officer the petitioner was dismissed from service by impugned order dated 19.4.2008. Thereafter, the petitioner preferred a departmental appeal which has been dismissed by order dated 19.01.2009. The petitioner, thereafter, filed revision under Rule-23 of the U.P. Police Officers of Subordinate Rank (Punishment & Appeal) Rules, 1991 which was also dismissed by the third impugned order dated 23.4.2010. The petitioner in this writ petition has nowhere denied the fact that he had not obtained the permission of the Competent Authority before entering into a second marriage with Smt. Rubina Bano. It is also not disputed that the second marriage was contracted by the petitioner during the subsistence of his first marriage with Smt. Shahroz. Therefore, the charge against the petitioner has not been disputed by him anywhere either in the departmental proceeding or even before this Court. The only ground taken in the writ petition is that the punishment of dismissal from service is extremely harsh and disproportionate to the misconduct of the petitioner. It is alleged that the Rules of procedure have also not been followed, but the allegation has not been substantiated by averments in the writ petition or documents on record.

I have heard Sri Kamal Kesarwani, learned counsel for the petitioner and the learned standing counsel for the respondents.

Learned counsel for the petitioner submitted that the punishment of dismissal from service was extremely harsh but he could not dispute that the petitioner had contracted a second marriage during the subsistence of the first marriage, and that too without obtaining the permission of the Competent Authority but sought to justify it on the  ground  that  it  was  permitted  under  the  personal  law  of  the  petitioner.

Learned standing counsel on the other hand submitted that the petitioner was a government servant and therefore he could not raise plea of personal law in such a matter as, as a government servant he would be governed by the service rules as applicable to all government servants and even if he wanted to enter into a second marriage, he ought to have taken permission from the Competent Authority and having not done so his misconduct was writ large and the petitioner would not escape from the consequences of his own misconduct.

I have considered the submissions of the learned counsel for the parties and perused the documents on record. The facts are not disputed that the petitioner is a government servant. He was posted as Constable in the U.P. Civil Police. He was married to one Smt. Shahroz and out of the said marriage he had a son aged 9 years. During the subsistence of the first marriage, the petitioner married one Smt. Rubina Bano without obtaining permission from the Competent Authority. It was not permissible in the case of a government servant and therefore the invocation of personal law by the petitioner is wholly misconceived and untenable as he is governed by Rules of Conduct as applicable to a Government servant.

The next submission of the learned counsel for the petitioner that the punishment imposed against the petitioner of dismissal from service was extremely harsh and disproportionate to the misconduct also does not appeal to the conscience of the Court, inasmuch as the petitioner being a government servant was obliged to abide by the Rules of Conduct as applicable to all government servants and not try to carve out a special class for himself who could act in any manner as he wished seeking shelter behind his personal law. The Rules of conduct as applicable to a government servant are applicable to all government servants equally irrespective of which caste or creed or religion or region he may belong to and it is no defence to the petitioner to state that under his personal law he was permitted to take a second wife during the subsistence of the first marriage. There is no doubt that service rules do permit a government servant to take a second wife but it is possible only with the permission of the Competent Authority for proper reasons to be disclosed and upon consideration of those reasons by the Competent Authority based upon the satisfaction of the said authority.

In the present case admittedly the petitioner is guilty of gross misconduct. He has relied upon two decisions, one of which is of the Gauhati High Court in the case of Amal Kumar Bakuah vs. State of Assam dated 07.03.2006 wherein the Gauhati High Court has held that the punishment imposed by the employer in a disciplinary proceeding must always be by application of objective standard and not on the basis of personal perspections of the disciplinary authority. However, it is to be noticed that in that case the Court interfered only on the question of the punishment of dismissal being an extreme punishment. The said decision appears to have been referred to by a learned single Judge of the Allahabad High Court in Writ Petition No.25871 of 2009 (Pancham Giri Vs. State of U.P. And others) which was also a case where the petitioner had taken a second wife during the life time of the first wife. In that case also the order of dismissal passed by the revisional court was set aside and the matter was remitted to the said authority to consider the matter again on the limited aspect of proportionality.

No doubt the facts involved in the present case are somewhat identical to the case referred to by learned counsel for the petitioner but I am still not inclined to interfere with the impugned orders as in my opinion one who contracts a second marriage during the subsistence of the first marriage knowingly and willingly and thereafter choses to justify the same with the plea that the second marriage was in the knowledge of first wife and that the first wife had not taken any objection to the second marriage is no ground and does not condone the misconduct of the petitioner. In para-10 of the writ petition it is admitted by the petitioner that Smt. Rubina Bano, the second wife had made a complaint to the Director General of Police, Lucknow against the petitioner, copy filed as Annexure-1 to the writ petition. It cannot be gainsaid that what should be the penalty in such cases is ultimately within the realm of personal satisfaction of the disciplinary authority and it is not for the Court to substitute its own opinion with that of the disciplinary authority or the appellate authority or the revisional authority in the matter of penalty to be imposed but when the matter is before this Court, this Court has to consider as to whether the misconduct of the petitioner has been established and whether his misconduct falls within the domain of conduct which is prohibited under the service rules and if it is ultimately found that such conduct is prohibited by the service rules and amounts to a gross misconduct the punishment imposed by the departmental authorities must be upheld and not interfered with lightly on sympathetic or other considerations of human approach or personal hardship.

A government servant has to be abide by the laws of the government and the rules governing his service conditions and if anyone does not find the service rules conducive to him on whatever ground, be it ground of personal law or any other ground, there are other job avenues available for him and government service is not the only parking place for such a person. In this view of the matter, I do not find any illegality or infirmity with the impugned orders.

The writ petition, in my opinion, lacks merit and is accordingly dismissed.

Order Date :- 28.4.2014

M. Kumar