Hanuman Singh vs State Of U.P. Thru ...
2018 Latest Caselaw 2552 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?AFR 
 
Court No. - 17
 

 
Case :- SERVICE SINGLE No. - 21823 of 2016
 

 
Petitioner :- Hanuman Singh
 
Respondent :- State Of U.P. Thru Prin.Secy.Deptt.Of Home Govt.Of Up & Ors.
 
Counsel for Petitioner :- Mahendra Prakash Raju,Suraj Narain Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Abdul Moin,J.

By means of the present writ petition, the petitioner has prayed for the following reliefs:-

"(i) To issue a writ, order or direction in the nature of certiorari quashing the impugned order of dismissal dated 09.06.2016 passed by Opposite Party no.3 as contained in Annexure No.1 to this writ petition and appellate order dated 02.08.2016 passed by the Opposite Party No.2 as contained in Annexure No.2 to this writ petition.

(ii) To issue a writ, order or direction in the nature of mandamus commanding the opposite parties to reinstate the petitioner in service with all consequential service benefits including arrears of pay and allowance, for which he would have been entitled in absence of the impugned order along with interest accrued thereon @ 12% per annum from the date they fell due to the actual date of payment.

(iii) To issue such other writ, order or direction as this Hon'ble Court deems fit and proper in the circumstances of the case.

(iv) To allow the writ petition with costs in favour of the petitioner."

The case set forth by the petitioner is that he was initially appointed on the post of Constable in the Police Department and joined on 07.10.1977 as a Constable. Even prior to entering into service, the petitioner had married Ms. Kamla Singh in the year 1976. During the existence of the first marriage itself, the petitioner got married with one Ms. Guddi in the year 1994. On 15.06.2015, the first wife of the petitioner namely Smt. Kamla Singh preferred a compliant before the Superintendent of Police, Sitapur, a copy of which is Annexure RA-2 to the rejoinder affidavit, in which she complained that she had got married with the petitioner and has two children of whom both are married. The petitioner has got married about 7 years' back with one Ms. Guddi. When Smt. Kamla Singh came to know about it, she complained to the petitioner but the petitioner threatened her and is also not supporting her. Consequently, she prayed for being given half of the salary of the petitioner and to ensure that the petitioner supports her.

On the basis of the said complaint, a charge sheet was issued to the petitioner on 06.02.2016, a copy of which is Annexure-6 to the writ petition, in which the petitioner was charged of having threatened his wife Smt. Kamla Singh, having got married with Ms. Guddi Singh and for not supporting Smt. Kamla Singh etc.

The petitioner submitted his reply thereto and an inquiry report was submitted on 12.04.2016, a copy of which is Annexure-8 to the writ petition, in which charges levelled against the petitioner were found proved. A show cause notice dated 22.04.2016 was issued to the petitioner against which he submitted explanation which was not found satisfactory which thus resulted in passing of the dismissal order dated 09.06.2016, a copy of which is Annexure-1 to the writ petition. Being aggrieved with that order, the petitioner preferred an appeal which too was rejected vide order dated 02.08.2016, a copy of which is Annexure-2 to the writ petition. Being aggrieved against both the aforesaid orders, the petitioner has filed the present writ petition.

Learned counsel for the petitioner submits that the respondents could not have proceeded to dismiss the petitioner from service on the ground of he having admittedly contracted a second marriage during the existence of the first marriage inasmuch as the complaint which was submitted by the first wife only pertains to the petitioner not supporting her and of having threatened her and consequently by no stretch of imagination can the said conduct of the petitioner result in the petitioner being dismissed from service. Learned counsel for the petitioner further argues that once the petitioner has rendered 37 years' of service, consequently the respondents are bound to consider his entire period of service and one error of judgment on his part in contracting the second marriage during existence of the first marriage would not be such grave misconduct so as to entail extreme penalty of dismissal from service and thus it is argued that the penalty imposed upon the petitioner is not commensurate with the offence committed by him.

Per contra, learned Standing Counsel, on the basis of averments made in the counter affidavit, has argued that it is an admitted fact that the petitioner has contracted a second marriage during the existence of the first marriage and when the first wife was living which itself is a grave misconduct and consequently once the petitioner himself has admitted this fact, the penalty of dismissal has been imposed upon the petitioner but after following the due procedure of law. Learned Standing Counsel also points out that in terms of Rule 29 of the Uttar Pradesh Government Servants Conduct Rules, 1956 (for short, '1956 Rules'),  no Government servant who has a wife living can contract another marriage without first obtaining the permission of the Government and consequently once the petitioner has himself admitted regarding the second marriage, as such the action taken by the respondents is perfectly in accordance with Rules more particularly when Rule 29 of 1956 Rules has been violated.

Heard learned counsel for the petitioner, learned Standing Counsel appearing for the respondents and perused the records.

From arguments and perusal of the record, it clearly comes out that the petitioner was appointed in the year 1977 as a Constable . Prior to entering into service, he had already married with Smt. Kamla Singh. In the year 1994 i.e. during the existence of the first marriage itself, the petitioner married with Ms. Guddi Singh. It is not the case of the petitioner that he ever obtained the permission from the Department while contracting the second marriage. Thus, the petitioner has clearly violated Rule 29 of 1956 Rules, which is reproduced as under:-

"29. 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.

(2). .........."

The second marriage would have continued to remain a secret from the Department but for the fact that the first wife Smt. Kamla Singh submitted a complaint to the Superintendent of Police, Sitapur, alleging her harassment at the hands of the petitioner, the threats being meted out to her and the marriage of the petitioner a second time. This complaint resulted in the petitioner being issued with a charge sheet dated 06.02.2016. After considering the explanation of the petitioner in which he has admitted the second marriage during existence of the first marriage itself, the inquiry report was submitted on 12.04.2016 in which the admission of the petitioner pertaining to second marriage was clearly recorded. After giving a show cause notice to the petitioner on 22.04.2016 and considering the explanation, the petitioner was dismissed from service by the competent authority on the ground of having contracted a second marriage which admittedly is a misconduct as per Rule 29 of 1956 Rules. The appeal submitted in this regard by the petitioner also did not contain any new grounds rather it admitted the fact of the petitioner having married twice and consequently the appeal was also rejected on 02.08.2016. The contention on the part of the petitioner that his second marriage cannot be considered to be such a grave misconduct so as to entail major penalty of dismissal from service is misconceived for Rule 29 of 1956 Rules itself stipulates about a Government servant not contracting marriage a second time and the petitioner in the capacity of being a Government servant was not expected to do so. Thus for all purposes, the second marriage of the petitioner during the existence of the first marriage, even if the conduct with the first wife is to be ignored, would entail a major penalty as has rightly been imposed upon the petitioner while dismissing him from service.

In this regard, this Court may also refer to a Division Bench judgment of this Court in the case of Satya Deo Singh Yadav vs. State of U.P. and others reported in 2015 (5) ALJ 285, wherein this Court has held as under with regard to similar controversy:-

"6. Now reverting back to the case in hand, admittedly, the petitioner- appellant has performed a second marriage during the lifetime of his first wife. Although the petitioner- appellant has taken a plea that he had divorced his first wife on 12.5.1998 before entering into the second marriage by way of an agreement but in absence of any such provision whereby divorce can be taken by a private agreement between two parties and without any decree of competent court/ Family Court it cannot be held that any divorce has taken place between them. We have also noticed that the agreement dated 12.5.1998 relying on which the appellant has stated that he had divorced his first wife, itself records that if in future the petitioner- appellant and his first wife have an issue, then that issue will be given due recognition and all the rights. This in itself indicates that the first marriage of the appellant was never determined finally amongst the parties even by mutual agreement/ consent.

7. The record shows that against the order of dismissal from service, the petitioner-appellant had filed a departmental appeal, which too was dismissed. Against the said order of dismissal of appeal, he had filed a revision before the authority concerned, which was also dismissed. The orders passed by the appellate authority and the revisional authority are available on the record, which clearly show that the agreement on which the petitioner- appellant is relying was obtained fraudulently from his first wife.

8. Thus it is clear that the first marriage of the petitioner- appellant was never finally determined by any competent court of law and the appellant, by performing second marriage, committed a clear violation of Rule 29 of the Uttar Pradesh Government Servants Conduct Rules, 1956, which completely bars a government servant to perform a second marriage in the lifetime of his spouse without first obtaining permission of the government.

9. It is not the case of the appellant that he even tried to obtain permission of government. Moreover, the petitioner being a Hindu could never have been granted such permission to marry second time because the provisions of Hindu Marriage Act applicable to the petitioner- appellant completely forbid such marriage by declaring them void.

10. In view of the clear mandate of Rule 29 of the Uttar Pradesh Government Servants Conduct Rules, 1956, the petitioner- appellant was disqualified from government service and he has been rightly discharged from the services by his department...."

Keeping in view the aforesaid discussions and the law laid down by the Division Bench of this Court in the case of Satya Deo Singh Yadav (supra), there cannot be said to be any illegality or infirmity in both the orders dated 09.06.2016 and 02.08.2016. Consequently, the writ petition is dismissed.

Order Date :- 13.9.2018

A. Katiyar