Manbir Singh vs State Of U.P. And 2 Others
2021 Latest Caselaw 11286 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Court No. - 40
 

 
Case :- WRIT - A No. - 15656 of 2021
 

 
Petitioner :- Manbir Singh
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Siddharth Khare,Sr. Advocate
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Surya Prakash Kesarwani,J.

Hon'ble Vikas Budhwar,J.

1. Heard Sri Ashok Khare, learned senior advocate assisted by Sri Siddharth Khare, learned counsel for the petitioner and Smt. Subhash Rathi, learned Additional Chief Standing Counsel for the State-respondents.

2. This writ petition has been filed praying for the following relief:

"(i) a writ, order or direction in the nature of certiorari quashing the Judgment dated 02.09.2021 passed by the State Public Service Tribunal, Lucknow in Claim Petition No. 1350 of 2006 (Manbir Singh Vs. State of UP & Others). (Annexure 16 to the writ petition).

(ii) a writ, order or direction in the nature of certiorari quashing the order dated 28.06.2005 passed by the State Government (Annexure 13 to the writ petition).

(iii) a writ, order or direction of a suitable nature commanding the respondent to fix the final pension of the petitioner and to disburse the same regularly, every month along with all arrears arisen on account of the difference between the provisional pension and the final pension within a period to be specified by this Hon'ble court.

(iv) a writ, order or direction in the nature of which this Hon'ble court may deem fit and proper under the circumstances of the case.

(v) award cost to the humble petitioner throughout of the present writ petition."

Facts:-

3. Briefly stated, facts of the present case are that the petitioner was appointed as Assistant Prosecutor on 05.09.1970. Subsequently, he was promoted on the post of Public Prosecutor and further promoted on the post of Senior Public Prosecutor on 17.07.1999. He retired from service on 31.12.2004.

4. A disciplinary proceeding was initiated against the petitioner on the basis of complaint of his wife Smt. Rajendri Devi. A charge-sheet dated 15.09.1987 was served upon him. Another disciplinary proceeding was also initiated against the petitioner on the basis of similar allegations by virtue of charge sheet dated 30.06.1992 and the inquiry proceeding was conducted. Subsequently, the matter arising from the first inquiry was compromised before the A.D.M. Saharanpur on the basis of some statement allegedly made by the aforesaid Smt. Rajendri Devi. Consequently, the proceeding against the petitioner, was dropped on 13.06.1997. The second inquiry also met the same fate in the light of the alleged statement of Smt. Rajendri Devi. From records, it appears that the aforesaid Smt. Rajednra Devi has also stated that no children were born from the wedlock of the petitioner.

5. Subsequently, it came to light that the petitioner has two children, namely daughter - Kumari Preeti and son - Sangeet Chaudhari from the wedlock of one Rajni Devi. The petitioner moved an application dated 13.07.1999 for taking benefit of family planning in which he also decleared that he has two children. On these facts, amongst others, coming to light, a fresh inquiry was initiated against the petitioner on 07.11.2003. A charge-sheet was issued. The petitioner appeared before the inquiry officer and led evidences. However, for reasons best-known to him, he did not produce Smt. Rajendri Devi and instead took the stand that Rajendri Devi and Smt. Rajni Devi, both are one and the same person who is his legally wedded wife and as such, there is no question of second marriage.

6. When the petitioner did not produce Smt. Rajendri Devi before the inquiry officer, then the inquiry officer himself took the statement of Smt. Rajendri Devi, who stated that she is not Rajni Devi. She stated that she is the first wife and she is daughter of one Amrit Singh, resident of Meerpurkalan, P.S. Babugarh, Post Ghunghral, Hapur, Ghaziabad. She further stated that second wife of the petitioner is Smt. Rajni Devi who is daughter of one Chhatar Singh, resident of Hanuman Teela, Khurja, District Bulandshahar. The inquiry officer also afforded opportunity to the petitioner to cross-examine the aforesaid Smt. Rajendri Devi but the petitioner did not appear to cross-examine her.

7. Based on evidences on record, the inquiry officer concluded that Rajednri Devi is the first wife of the petitioner and without permission from the State Government as required under Rule 29 of the U.P. Government Servants' Conduct Rules, 1956 (hereinafter referred to as ''the Rules, 1956'), the petitioner contracted the second marriage with one Smt. Rajni Devi, daughter of Chhatar Singh and has also led false evidences knowing fully well that he has contracted second marriage with Rajni Devi. After following due procedure of law, the appointing authority awarded punishment to the petitioner by forfeiting his pension inasmuch as before the order of punishment dated 28.06.2005 was passed, the petitioner had retired from service on 31.12.2004. Aggrieved with the aforesaid order of punishment/ office memorandum dated 28.06.2005, the petitioner filed Claim Petition No.1350 of 2006 before the State Public Service Tribunal, Indira Bhawan, Lucknow, which was dismissed by the impugned order dated 02.09.2021.

8. In paragraphs 14 to 25 of the impugned order dated 02.09.2021, the Tribunal has recorded the following findings of fact:-

"14. It appears from record that Smt. Rajendri Devi wife of petitioner had made a complaint against petitioner on 28.09.1978 in which she had stated that petitioner had married with another lady namely Smt. Rajni Devi. She could not give birth to any child. Before A.D.M. Smt. Rajendri Devi appeared before enquiry officer and filed her affidavit to the effect that since no child was born with her and Manbir Singh, she was mentally upset and that is why due to some misunderstanding, she had made a false complaint against her husband and now she did not want to pursue the matter. They have compromised before A.DM. Saharanpur, as such A.DM. dropped the matter against petitioner on 13.06.1997. Since this enquiry was dropped on the basis of compromise, and this time there is additional charge of giving wrong facts and concealment of facts, state government is fully justified to institute fresh enquiry, as such principle of double jeopardy does not apply in this case.

15. Study of enquiry report reveals that petitioner was given 4 opportunities to cross-examine Smt. Rajendri Devi, but he did not turn up.

16. Record also shows that petitioner has given his statement before enquiry officer on 10.01.2004 that his family members had changed the name of his wife from Smt. Rajendri Devi to Rajni Devi on the advice of astrologers and pandits. Statements of gram pradhan Sri Kishan Pal Singh, Shiv Kumar and Mahipal Singh were recorded by enquiry officer. They have given their statements in favour of petitioner. Another witness Sri Vijendra Singh has certified the family register issued by him on 25.12.2003.

17. In the birth certificate of petitioner's son Sri Sangcet Chaudhary issued by Nagar Panchayat, Mathura, name of mother of his son is mentioned as Rajni Devi and not Rajendri Devi. This is admitted by Petitioner.

18. Smt. Rajendri Devi has given statement before enquiry officer that she has no child and her name was never changed as Rajni Devi. Rajni Devi is a different lady from whom petitioner had conducted marriage and they have two children.

19. We find from record that petitioner in his application dated 30.06.1988 given before Dy. Director, Prosecution, himself admitted that he had married with Smt. Rajendri Devi and also admitted that she has no child while he has given an application dated 10.5.1999 claiming extra increment under family planning scheme that he has two children namely Km. Preeti Chaudhary and Sri Sangeet Chaudhary born in 1982 and 1984 respectively. This is own admission of petitioner. Since Rajendri Devi has no child as admitted by petitioner, he performed second marriage with Smt. Rajni Devi with whom two children were born in the year 1982 and 1984.

20. Thus, from his own admission and material available on record, it is established that petitioner had performed second marriage with Rajini Devi during the life time of his legally wedded wife Smt. Rajendi Devi, without permission of government.

21. It is evidently proved from the record that petitioner had not given correct facts before A.DM. Saharanpur in the earlier enquiry and concealed the material facts due to which enquiry was dropped.

22. So far as punishment is concerned. learned counsel has submitted that respondents should have taken a lenient view while awarding punishment and major punishment should not have been inflicted upon petitioner.

23. He has referred to a decision of Hon'ble Allahabad High Court given in the case of Shravan Kumar Pandey vs State of U.P & others in writ petition no.70379 of 2009 regarding Rule 29 of U.P. Government. Servants Conduct Rules, 1956. We could not find any provision which prohibits the state government from awarding major punishment.

24. Submission that enquiry could not be instituted for 4 years old. We find that petitioner raised the issue on 10.05.1999 claiming extra increment under family planning scheme on the ground that he had two children, while he had earlier concealed this material fact. On account of admitted facts of petitioner, enquiry was again instituted on 25.03.2003 before retirement of petitioner. Due to concealment of the facts and compromise reached between petitioner and Rajendri Devi, enquiry was dropped by A.D.M. In the year 1997, as such this submission of learned counsel fails.

25. Petitioner not only performed second marriage with Rajni Devi without taking permission of state government during life time of his first wife, but he also tried to mislead the state government by concealing the material facts that he has two children."

Submissions:-

9. Learned counsel for the petitioner submits that the petitioner has not contracted a valid marriage with Smt. Rajni Devi and as such in the absence of any proof of his legal marriage with Smt. Rajni Devi, the question of contracting second marriage does not arise at all, as well as provisions of Rule 29 shall also not be attracted.

10. He, therefore, submits that the impugned orders passed by the Tribunal as well as by the disciplinary authority deserve to be quashed. In support of his submissions, he relied upon a judgment of Hon'ble Supreme Court in the case of (1994) 5 SCC 545 Laxmi Devi (Smt.) vs. Satya Narayan and others and two single Judge judgments of this Court, i.e. Aneeta Yadav vs. State of U.P. and 5 others in Writ-A No.24493 of 2015, decided on 02.05.2016 and Gore Lal Verma vs. State of U.P. and 4 others in Writ-A No.5204 of 2021, decided on 14.07.2021.

11. Learned Standing Counsel has supported the impugned orders.

Discussion and Findings:-

12. We have carefully considered submissions of the learned counsels for the parties and perused the records of the writ petition.

13. Perusal of the record shows that the first enquiry was dropped against the petitioner on the basis of the alleged compromise of Smt. Rajendri Devi. The second enquiry also met with the same fate as departmental proceeding was dropped. The third enquiry was initiated on the basis of the materials coming into the hands of the department, which indicated that the petitioner has contracted the second marriage and he had misrepresented. In the third enquiry, charges were found proved against the petitioner on the basis of the evidences available on record.

14. We have perused the enquiry report and we find that the case set up by the petitioner was that Rajendri Devi and Rajni Devi were one and the same person. The said stand was disbelieved by the enquiry officer and it was held that Rajendri Devi and Rajni Devi are two different persons, as the first wife Smt. Rajendri Devi is the daughter of Amrit Singh, resident of Meerpurkalan, P.S. Babugarh, Post Ghunghral, Hapur, Ghaziabad and Smt. Rajni Devi (second wife) is the daughter of one Chhatar Singh, resident of Hanuman Teela, Khurja, District Bulandshahr.

15. A specific finding of fact has also been recorded by the enquiry officer on the admitted facts that with the wedlock of petitioner and Smt. Rajni Devi, two children were born namely Km. Priti and Sangeet Chaudhary. Thoroughly inconsistent and contradictory stand has been taken by the petitioner right from the very inception. On one hand, he has come up with the story that Rajendri Devi and Rajni Devi are one and the same person and on the other hand, he has taken the stand before us that Smt. Rajni Devi is not his legally wedded wife. Both the stands cannot co-exist. It was not disputed by the petitioner either before the inquiry officer or before the Tribunal that Smt. Rajni Devi is his legally wedded wife. Therefore, the submission of the learned counsel for the petitioner that he has not legally contracted second marriage with aforesaid Rajni Devi, has no legs to stand.

16. It is admitted case of the petitioner that no issue was born from Smt. Rajendri Devi. Smt. Rajendri Devi has stated that she is not Rajni Devi and no issue has born to her from the wedlock of the petitioner. Statement of Smt. Rajendri Devi was recorded by the inquiry officer who afforded opportunity to the petitioner to cross-examine Rajendri Devi, but the petitioner did not appear to cross-examine her. The petitioner could not dispute that he has two children, namely Kumari Preeti and Sangeet Chaudhary. The name of mother of these two children as per school certificates and municipal records is Smt. Rajni Devi and petitioner is shown as father of these two children. This clearly indicates that the petitioner and Smt. Rajni Devi are husband and wife and from their wedlock, two children were born but the petitioner has initially suppressed these facts. In his letter dated 30.03.1988, addressed to the Deputy Director of Prosecution, Agra Zone, Agra, the petitioner has stated that his wife is Rajendri Devi and no issue was born to her. When this letter was confronted to the petitioner by the inquiry officer, then he stated that under some confusion he has given a wrong application. Thus, while the petitioner has stated on 30.03.1988 that he has no children, sufficient documentary evidences came to light that daughter - Preeti was born in the year 1982 and the son Sangeet Chaudhary was born in the year 1984 from the wedlock of the petitioner and Smt. Rajni Devi. On the basis of the aforesaid facts and other material and evidences on record, the inquiry officer concluded that the petitioner's first wife is Rajendri Devi daughter of Amrit Singh, resident of Meerpurkalan, P.S. Babugarh, Post Ghunghral, Hapur, Ghaziabad and his second wife is Smt. Rajni Devi daughter of Chhatar Singh, resident of Hanuman Teela, Post Nayaganj, Khurja, District Buland Shahar and the two children have born from the wedlock of the petitioner and the aforesaid Smt. Rajni Devi. The findings recorded by the Tribunal in paragraphs 14 to 25 of the impugned order are based on evidences and relevant materials on record which go to show that the petitioner has contracted second marriage with Smt. Rajni Devi while his first wife Smt. Rajendri Devi is alive. Considering the facts and circumstances of the case, it cannot be said that there was absolutely no evidence before the inquiry officer or the Tribunal to hold that the petitioner has contracted second marriage with Smt. Rajni Devi.

17. The judgment in the case of Laxmi Devi (supra), relied by learned counsel for the petitioner is clearly distinguishable on the facts of the present case. That apart, the aforesaid judgment was rendered by Hon'ble Supreme Court in a criminal appeal arising from a criminal case under Section 494, I.P.C. The judgment of learned single Judge of this court in the case of Aneeta Yadav (supra), is also of no help to the petitioner. In the said case, anonymous complaint was made that Aneeta Yadav had solemnized marriage with Sri Brijesh Kumar Yadav who was already married with one Smt. Kusum Devi and has four children. Thus, Aneeta Yadav had not contracted the second marriage but it was her husband who contracted the second marriage and she had no knowledge about the first marriage of her husband. Therefore, it was held that no punishment could be awarded to Aneeta Yadav in terms of Rule 29 of the Rules, 1956. Thus, the facts of the case of Aneeta Yadav (supra) are entirely different from the facts of the present case. The other judgment of learned Single Judge in the case of Gore Lal Verma (supra) relied by the learned counsel for the petitioner is also of no help to the petitioner inasmuch in the case of Gore Lal Verma the dismissal order was passed solely on account of having maintained live-in relationship outside the marriage. It is not the case of the petitioner herein.

18. At this juncture, it would be appropriate to reproduce the provisions of Rule 29 of the U.P. Government Servant Conduct Rules, 1956 as under:

"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) No female government servant shall marry any person who has a wife living without first obtaining the permission of the government."

19. The aforesaid provisions of Rule 29 was considered by a coordinate bench of this court in Special Appeal No.570 of 2012 (Pawan Kumar Misra vs. State of U.P. thru its Principal Secretary Home, Government of U.P. and others), decided on 02.05.2014 and it was held as under:

"9. A plain reading of Rule 29 reveals that a government servant cannot marry again without permission of the state government. The legislature to their wisdom has used the word "notwithstanding" which means, even if the marriage is permissible under personal law for the time being applicable to a government servant, such government servant cannot be allowed to marry again without permission of the state government.

14. We are of the view that the appellant-petitioner cannot take assistance of the provisions contained in Hindu Marriage Act or alike personal law being a government servant. The 1956 Rules has got statutory force and also got overriding effect over the provisions contained in the statute dealing with personal law.

17. In the case in hand, the appellant-petitioner had committed an offence of bigamy after enjoying 11 years of matrimonial life. Once the 1956 Rules provides that second marriage by a government servant during the lifetime of first wife is an offence, and it amounts to misconduct, then it is not open for the court to take a different view than what has been considered by the disciplinary authority.

22. Any liberty given by the courts or interference with such matters, may result with ill consequence in due course of time or may break the discipline in police force. It is not a case where misconduct has been committed by not an ordinary government servant. Being a member of disciplined police force, it is always expected that such person shall be abide law and in case, a member of the police or Armed forces is permitted to break the law and abuse the powers conferred by the statutes, it shall send a wrong message to the society."

(Emphasis supplied by us)

20. In the case of Javed vs. State of Haryana, (2003) 8 SCC 369, Hon'ble Supreme Court has dealt with the question of second marriage and affirmed the judgment of this court in Ram Prasad Seth vs. State of U.P., AIR 1957 All. 411 and Badruddin vs. Aisha Begum, 1957 All.LJ 300 in which it was held by this court that the act of performing a second marriage during the life-time of one's wife cannot be regarded as an integral part of Hindu religion nor could it be regarded as practising or professing or propagating Hindu religion and even if bigamy be regarded as an integral part of Hindu religion, Rule 27 of the U.P. Government Servants' Conduct Rules, 1956 requiring permission of the Government before contracting such marriage must be held to come under the protection of Article 25(2)(b) of the Constitution.

21. In the case of Kursheed Ahmad Khan vs. State of U.P., (2015) 8 SCC 439, Hon'ble Supreme Court held that the provisions of Rule 29 of the aforesaid Rules, 1956, to be valid and further held that performance of second marriage during currency of the first marriage resulting in punishment of removal from service cannot be held to be shockingly disproportionate to the charge on established judicial parameters (see para 11 of the judgment).

22. Similar view has been taken by a learned single Judge in his judgment dated 18.05.2006 in Civil Misc. Writ Petition No.27190 of 1997 (Veerpal Singh vs. Senior Superintendent of Police, Agra, and others).

23. Learned counsel for the petitioner lastly submitted that there may be misconduct on the part of the petitioner but it does not amount to grave misconduct so as to attract Rule 29 of the Rules, 1956 read with Article 351A of the Civil Services Regulation. The submission made by the learned counsel for the petitioner has no substance inasmuch as the petitioner has misrepresented before the authorities and made every effort to mislead them as if he has not contracted the second marriage. The evidences on record proved that according to own admission of the petitioner, Smt. Rajni Devi is his wife and proved to be his second wife. The conduct of the petitioner is in breach of the U.P. government Servants' Conduct Rules, 1956 and unbecoming of a government servant. That apart, the conduct of the petitioner is a gross-misconduct attracting the provisions of Rule 29 of Rules, 1956. In the case of Khursheed Ahmad Khan (supra), on contracting second marriage during lifetime of the first wife and on that account, the punishment of removal from service, was held to be valid. Therefore, we have no hesitation to hold that the conduct of the petitioner was a gross-misconduct and the provisions of Rule 29 of the Rules, 1956 read with Article 351A of the Civil Services Regulations were rightly invoked.

24. The issue can also be analysed from another angle that in case the logic and the proposition so advanced by learned counsel for the petitioner is taken on its face value, it may create havoc and undesired results inasmuch as it will tantamount to create a situation wherein there would be violence to the statutory provisions of Rule 29 of the U.P. Government Servants Conduct Rules, 1956. Rule 29 was consciously enacted stipulating that no government servant, who has a wife living shall contract another marriage without obtaining the permission of the government notwithstanding that such subsequent marriage is permissible under the personal law for the time being applicable to him. Once Rule 29 is clear and applicable to the petitioner being government servant, he has no option but to face consequences on breach of it.

25. The findings recorded by the Tribunal in the impugned order are findings of fact based on consideration of relevant evidences and materials on record. The scope of interference with the order of the Tribunal by this Court under Article 226 of the Constitution of India exercising extra-ordinary, equitable and discretionary jurisdiction, has its own limits. The scope of judicial review is extended only when there is no evidence or the conclusion or finding is such as no reasonable person would have ever reached on the basis of the material available. Perusal of the impugned order of the Tribunal shows that the Tribunal has passed the order on the basis of relevant material and evidences available on record establishing that the petitioner has contracted the second marriage in breach of Rule 29 of the Rules, 1956.

26. For all the reasons afore-stated, we do not find any good reason to interfere with the impugned order of the Tribunal. Consequently, the writ petition fails and is hereby dismissed.

Order Date :- 08.11.2021

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