Dadabhai Sardarbhai Panpatil vs State Of Gujrat
2021 Latest Caselaw 232 Guj

        C/SCA/11044/2006                                JUDGMENT




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CIVIL APPLICATION NO.        11044 of 2006


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

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1     Whether Reporters of Local Papers may be
      allowed to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the
      fair copy of the judgment ?

4     Whether this case involves a substantial
      question of law as to the interpretation
      of the Constitution of India or any order
      made thereunder ?

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                     DADABHAI SARDARBHAI PANPATIL
                                 Versus
                      STATE OF GUJRAT & 1 other(s)
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Appearance:
MR HEMANG M SHAH(5399) for the Petitioner(s) No. 1
MR IS SUPEHIA(874) for the Petitioner(s) No. 1
MS MEGHA CHITALIYA AGP (1) for the Respondent(s) No. 1,2
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    CORAM: HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                           Date : 08/01/2021

                             ORAL JUDGMENT

1. By way of this petition, petitioner, an Armed Police Constable, who was at the relevant time serving under the Superintendent of Police, District: Navsari, challenges

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order of his removal from service vide an order dated 18.04.2001 passed by Superintendent of Police, Navsari, on the ground that, the petitioner having living spouse married with one Kanizaben without obtaining divorce from his first wife or obtaining permission from the State Government, which is in breach of Rule 26 of the Gujarat Civil Services (Conduct) Rules, 1971 (for short, 'the Rules'). At the same time, the petitioner is found to have stated false facts before the Deputy Superintendent of Police, Navsari when his statement was recorded on 6.1.1998 claiming that, he has not contracted second marriage, which is found false and therefore, charge against him in a departmental inquiry found to be proved by the Inquiry Officer. Against the order passed by Superintendent of Police i.e. Disciplinary Authority, the petitioner preferred an appeal before the Inspector General of Police, Surat Range, Surat, which also came to be dismissed vide an order dated 2.8.2001. Against the order of dismissal of his appeal, the petitioner preferred revision before the Director General of Police, which also met with the same fate and his revision application came to be dismissed vide an order dated 5.9.2001.

2. Not deterred by rejection of his appeal and revision, the petitioner preferred further revision before the State Government in its Home Department, which also came to be rejected by an order dated 1.2.2006. Against those orders, the petitioner has preferred this petition on the ground that, to keep a mistress is not a misconduct for a policeman relying on a decision in the

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case of Bodu Tarmamad V/s. District Superintendent of Police, Jamnagar and another reported in 1988 (1) GLR

101.

3. Mr.Hemang Shah, learned advocate for the petitioner submitted that the so called marriage with Kanizaben is not proved and therefore, on the ground of breach of Rule 26 of 'the Rules', the petitioner could not have been dismissed from service. He has further submitted that even Maintenance Application preferred by the Kanizaben against the petitioner under Section 125 of the Code of Criminal Procedure, 1973 (for short, 'the Code') has come to be dismissed. It is further submitted that not only that revision application preferred by Kanizaben against the order refusing her maintenance under Section 125 of 'the Code' also came to be rejected by the Revisional Court.

4. He has further submitted that the petitioner filed Regular Civil Suit No.218 of 2006 in the Court of learned Principal Senior Civil Judge, Valsad, praying for declaration to the effect that the marriage performed with Vaishaliben on 23.5.1989 as per Hindu rites is the valid marriage and she is legally wedded wife of the petitioner. Further declaration was sought for in the said suit that there is no marriage performed on 13.1.1994 with Kanizaben as per Muslim rites or a civil marriage and the registration thereof in the office of Sub-Registrar, Valsad is not undertaken by the petitioner and he had never assumed his name as Anil @ Burhan Sardar Panpatil. At the same time, it was prayed that the

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marriage with Kanizaben be declared as null and void and praying for restraining her to be known as wife of the petitioner in the society. However, he has further submitted that the said suit came to be partly allowed so far as declaration with regard to first marriage with Vaishaliben declaring her to be legally wedded wife and his marriage with her is subsisting whereas, for the other part of the relief claimed in the suit, came to be dismissed vide judgment and order dated 1.10.2015.

5. Mr.Shah, learned advocate for the petitioner submitted that against the order passed by the Principal Senior Civil Judge, Valsad in the aforesaid suit, an appeal has come to be filed and if appeal is allowed and the marriage with Kanizaben is declared as null and void, the charge levelled against the petitioner in the proceedings would fall to the ground. Therefore, he has requested that this petition should be heard after the disposal of the appeal, as aforesaid.

6. He has further submitted that according to the case of the petitioner, there is no such marriage with Kanizaben and therefore, he cannot be held guilty of having entered or contracted plural marriages. If that is so, he could not have been dismissed from the service. It is further submitted that even presuming that Kanizaben was staying with the petitioner by that legal and valid marriage with her cannot be presumed and therefore, it cannot be termed as unbecoming of a Government servant and no proceedings for the misconduct on that ground could be initiated against the petitioner. Therefore, he

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has submitted that this petition be allowed and the orders passed by the Disciplinary Authority and confirmed by the hierarchical authorities be set aside and he be reinstated in the service.

7. As against that, Ms.Megha Chitaliya, learned AGP submitted that Inquiry Officer conducted the inquiry and on analysis of the material produced and proved during the course of inquiry suggests that the petitioner entered or contracted marriage with Kanizaben and therefore, he has committed misconduct by entering into plural marriages rendering him liable for dismissal from the service. She has further submitted that the petitioner himself has stated in his statement dated 19.2.2000, as referred to in the inquiry report, that on 13.1.1994, he has contracted registered marriage with second wife, namely, Kanizaben. It is further revealed that in a statement dated 6.10.1998, through oversight, the factum of second marriage with Kanizaben was not informed. She has further submitted that not only his own statement but there are statements of other witnesses clearly established that the petitioner contracted or entered second marriage having living spouse with Kanizaben and stayed under same roof as husband and wife. To name few witnesses, she has submitted that, the statement of witnesses, Devidas Sampat, Amarsinh Kalubhai, Unarmed Police Constable, Rafiudin Mohsinmiya, etc. It is further submitted that though during the course of inquiry, the petitioner has claimed that he has not entered a second marriage and has not kept mistress but the material evidence and the documents available on

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record proves that the petitioner entered into a second marriage with Kanizaben and that is also confirmed by registration thereof with the Registrar of Marriages. It is further submitted that the said Registration Certificate is a secondary proof of marriage having performed. She has further submitted that the very fact that Kanizaben filed an application against him claiming maintenance under Section 125 of 'the Code' proves that the petitioner entered or contracted a marriage with her having living spouse without the permission of the State Government and rendered him liable for the disciplinary action, which is ended in his dismissal. It is further submitted that rejection of Maintenance Application filed by Kanizaben would not come in the way of authority as under the provisions of Section 125 of 'the Code', only legally wedded wife can claim maintenance and therefore, second marriage entered or contracted with Kanizaben cannot entitle her for the maintenance under 'the Code'.

8. She has further submitted that for Registration of the Marriage, the petitioner has also changed his name so that it may appear to be Muslim person who can have plural marriages under the religion. Thus, according to the submission of learned AGP, the petitioner, who was working in a police force, has undertaken due care so that his marriage with Kanizaben may not come to light in the form of documentary evidence. It is further submitted that since there is concurrent finding of fact recorded by at-least 3 (three) different authorities, it may not be interfered with in this petition, though it may be titled as petition under Article 226 of the Constitution

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of India, it is essentially under Article 227 of the Constitution of India. She has relied on a decision of the Supreme Court in the case of Khursheed Ahmad Khan V/s. State of Uttar Pradesh and others reported in (2015) 8 SCC 439 for a proposition that, contracting second marriage during the existence of first marriage without permission of the Government amounts to misconduct in terms of Rule 26 of 'the Rules', as it is prohibited under it.

9. Having heard learned advocates for the appearing parties and going through the record and the precedents cited, relevant provisions under 'the Rules' and the orders passed by the Disciplinary Authority and confirmed by the Appellate and Revisional authorities require to be scrutinized to determine this petition.

10. The finding of fact recorded by the Inquiry Officer to the effect that the petitioner himself in a statement dated 19.2.2000 admitted that he contracted or entered second marriage with Kanizaben, which came to be registered with the Registrar of Marriages on 13.1.1994. At the same time, there is further assertion in it that in a statement dated 6.10.1998 by mistake, he had not informed about the second marriage with Kanizaben. At the same time, the statements recorded of Devidas Sampat, Amarsinh Kalubhai and Rafiudin Mohsinmiya would go to show that the petitioner contracted or entered into a marriage with Kanizaben and they stayed under same roof as husband and wife. Over and above that, filing of Maintenance Application by Kanizaben against the

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petitioner, though it is claimed that the Marriage Registration Certificate does not bear the name of the petitioner, is a primary proof of the fact that petitioner entered into a marriage or in a relationship in the nature of marriage with Kanizaben having living spouse. It is a different thing that her Maintenance Application came be rejected on a question of law as only legally wedded wife is entitled for the maintenance under Section 125 of 'the Code' and not the second wife of Hindu male.

11. As such, the finding of fact with regard to marriage with Kanizaben is not challengable and rightly not challenged. Rule 26 of the 'the Rules' does not speak about the only legal and valid marriage. For the Government servant, that too, serving in a disciplined force high standards of morality are expected. The factum of second marriage or in a relationship like marriage having living spouse is not permissible and it is highly immoral.

12. The word 'Marriage' used in Rule 26 of 'the Rules' does not mean legal and valid marriage. It means a marriage which has been entered or contracted, irrespective of whether such a marriage is in law void or not. If one goes by the facts and the documents proved on record, not only the petitioner has assumed Muslim name to contract the marriage with Kanizaben who was Muslim by religion and the Registration Certificate reflects that as per Muslim rites, the official priest Ramzan Ali performed the said marriage. Even place of marriage is

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also shown to be Nana Tarvad Masjid, Taluka: Valsad, District: Valsad. The said certificate being proof of marriage considered along with the admission of the petitioner himself and the statements of other witnesses, it goes to show that petitioner contracted or entered marriage with Kanizaben having living spouse and has incurred disciplinary proceedings against him for the breach of Rule 26 of 'the Rules'.

13. In view of the decision of the Supreme Court in the case of Khursheed Ahmad Khan (supra) which upheld the constitutional validity of similar Rule 29(1) of the U.P. Government Servants' Conduct Rules, 1956 upholding the decision of the High Court holding that penalty of removal from service on that ground was not shockingly disproportionate to charge on established judicial parameters. In view of the aforesaid decision, the judgment relied on by the petitioner which is annexed with the petition in the case of Bodu Tarmamad (Supra) though it is on different facts, would not be applicable to the present case. In the said reported case, there was only an allegation that the delinquent allowed one girl to stay with him in the police line quarter. In the said case, the Court had said that there is no prohibition that the Government servant cannot allow an unmarried girl to stay in the Government quarters occupied by him. However, the Court took note of the fact that in the said case, there was no allegation at all against the petitioner that he was misusing the girl or he had any illicit relations with her and that the police line quarter were being used for such immoral purposes.

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Therefore, in that different fact situation, the Court held that, to permit an adult girl to stay with one's own family is not 'misdeed' or 'misconduct' whereas, in the present case, not only the statement of the petitioner himself, statement of other witnesses and documentary evidences in the form of suit filed by the petitioner himself, Maintenance Application preferred by the Kanizaben, second wife, unequivocal proof that petitioner contracted or entered marriage having living spouse and thereby committed misconduct.

14. Thus, reliance placed on the decision in the case of Bodu Tarmamad (Supra) by the petitioner is misplaced.

15. Needless to say that the aforesaid observation are restricted to the case pleaded in this departmental proceedings only in the facts which has been brought on record during the course of the departmental proceedings.

16. In that view of the matter, I see no reason to interfere with the concurrent finding of facts recorded by the authorities, as aforesaid which requires no interference by this Court as even a punishment of removal has also not shockingly disproportionate as held in the case of the Supreme Court in the case of Khursheed Ahmad Khan (Supra).

17. Hence, this petition is rejected. Rule discharged.

(UMESH A. TRIVEDI, J) ASHISH M. GADHIYA