Delhi High Court
Mohd Siraj Ali vs Boarder Security Of Force & Anr on 6 February, 2018
$~39
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1088/2018 & CM No.4552/2018
MOHD SIRAJ ALI ..... Petitioner
Through: Mr.Brajesh Pandey & Ms.Spiti
Sarkar, Advocates
versus
BOARDER SECURITY OF FORCE & ANR ..... Respondents
Through: Mr.Ripu Daman Bhardwaj, Advocate
for R-1 & R-2/BSF
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE PRATIBHA RANI
ORDER
% 06.02.2018
1. The present petition has been filed by the petitioner who was recruited
in the respondent No.2/BSF on the post of a Constable (GD) on 15.01.2012,
praying inter alia quashing his termination order dated 24.09.2016 and for
directing the respondents to continue him in service.
2. The brief facts of the case are that the petitioner was recruited as a
Constable (GD) in the respondent/BSF on 15.01.2012. On 16.06.2014, he
got married to one Ms.Gulafsan. The petitioner claims that within a period of
three months, reckoned from 16.06.2014, he was forcibly made to marry
Ms.Zeenat Ara, his neighbour. It is the version of the petitioner that he had
to perform 'Nikah' with Ms.Zeenat Ara under the Muslim Law, on pressure
being exerted by a lady Police Officer in the Mahila Police Station, Dhanbad
and he was being threatened that if he does not do so, he shall be framed in a
case under Section 376 IPC. The petitioner claims that on threats being
extended by the family members of Ms.Zeenat Ara, who had arranged a
Qazi, his 'Nikah' was performed at her residence on 17.09.2014, where none
of his family members were present.
3. On a perusal of the petition filed by the petitioner under Section 39 of
the Code of Criminal Procedure, before the Sub-Divisional Magistrate,
Dhanbad, it transpires that on 19.06.2014, Ms.Zeenat Ara had lodged FIR
No.05/2014 at the Mahila Police Station stating inter alia that the petitioner
had established physical relations with her and that she got pregnant twice
and had to undergo abortions on his advice.
4. We have enquired from the learned counsel for the petitioner as to
whether the petitioner had taken any legal action against the lady police
officer, by filing a complaint before her superiors, for coercing him and
threatening him to perform a second marriage, the answer is in the negative.
We have also enquired from learned counsel for the petitioner that as it is
petitioner's version that the Qazi, who performed the Nikah ceremony, was
aware of the fact that he was being compelled to perform a second marriage
against his wishes, had he taken any action against the Qazi. Again, the
answer is in the negative. Admittedly, the petitioner did not lodge any
complaint with the local police station with regard to the threats extended to
him or the coercion faced by him at the hands of Ms.Zeenat Ara and the lady
Police Officer.
5. On receiving a complaint against the petitioner from Ms.Zeenat Ara
vide order dated 13.06.2015, the respondents/BSF, ordered a Court of
Inquiry to investigate into the circumstances under which he had entered into
a dual marriage with Ms.Zeenat Ara, while living with the first wife. The
Court of Inquiry found the petitioner guilty of plural marriage. Vide order
dated 25.06.2016, the Commandant, 167 Battalion, BSF issued a Show
Cause Notice to the petitioner informing him that as per the Central Civil
Services (Conduct) Rules, 1964, particularly Rule 21, Sub Rule (1) & (2),
there is a restriction on plural marriage of Government servants and no
Government servant having a living spouse, can contract or enter into a
marriage with any person. The petitioner was called upon to explain why he
should not be retired on the ground of unsuitability from the service due to
the aforesaid misconduct.
6. The petitioner responded to the said Notice of Show Cause vide letter
dated 26.07.2016, seeking extension of time to submit a reply to the Show
Cause Notice. Vide order dated 03.08.2016, the petitioner was granted an
extension of 30 days to submit his reply. On 17.09.2016, the petitioner
submitted a cursory reply to the Notice of Show Cause stating inter alia that
Ms.Zeenat Ara had registered a false and frivolous case against him with a
motive to blackmail him but she failed to produce any material before Court
and the said case is still pending adjudication. Except for filing a copy of the
petition filed by the petitioner against Ms.Zeenat Ara, no explanation was
offered by the petitioner with regard to the circumstances under which he
was allegedly coerced to perform a second marriage with the lady,
Ms.Zeenat Ara. After considering the reply of the petitioner and examining
the Rule position vide order dated 24.09.2016, the Disciplinary Authority i.e.
the Officiating Commandant, 167 Battalion, BSF declared that the petitioner
was un-suitable for further retention in the Forces and he shall be retired
from the service w.e.f. 24.09.2016, without any pensionary benefits.
Aggrieved by the said order, the petitioner has filed the present petition.
7. Learned counsel for the petitioner submits that his client has been
framed by Ms.Zeenat Ara; that he never got married to her voluntarily; that
Ms.Zeenat Ara and her family members had pressurized him to solemnize a
second marriage with her; that the impugned termination order is not
sustainable in the eyes of law because the second marriage itself is in
question before the Family Court where the petitioner has filed a divorce
petition against Ms.Zeenat Ara.
8. Per contra, learned counsel for the respondents defends the impugned
dismissal order and submits that the petitioner did not take any steps against
the lady police officer who had allegedly coerced him to perform a second
marriage with Ms.Zeenat Ara, while he was having a living spouse.
9. We have already enquired from the learned counsel for the petitioner
as to what was the need for the petitioner to approach the Family Court when
he had contracted a second marriage under the Muslim personal law, which
at that point in time, permitted him to divorce her under the very same law.
There is no answer coming forth from the learned counsel for the petitioner,
nor has he been able to explain the inaction on the part of the petitioner in
failing to lodge any complaint against the lady police officer or against the
Qazi who had forcibly got the 'Nikah' of the petitioner with the lady.
10. We are of the opinion that the entire story set up by the petitioner is a
sham and bereft of truth. There is no justification for us to interfere in the
impugned order dated 24.09.2016 whereunder the petitioner has been retired
after rendering services for a limited period of 4½ years.
11. The petition is accordingly dismissed in limine, alongwith pending
application.
12. At this stage, learned counsel for the petitioner states that though no
such prayer has been made in the writ petition, a prayer has been made in the
interim application for release of the balance provident fund of `1,80,000/-
lying deposited with the respondent/BSF.
13. Learned counsel for the respondents assures us that if that is the
position, then appropriate step shall be taken to release the amounts payable
to the petitioner, in accordance with law.
14. Needful shall be done within four weeks from today.
HIMA KOHLI, J.
PRATIBHA RANI, J.
FEBRUARY 06, 2018
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