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Malkiat Singh vs Union Of India & Anr. on 17 January, 2012

Delhi High Court Malkiat Singh vs Union Of India & Anr. on 17 January, 2012Author: Anil Kumar

* IN THE HIGH COURT OF DELHI AT NEW DELHI + WP(C) No.8836/2011

% Date of Decision: 17.01.2012 Malkiat Singh …. Petitioner Through Mr.G.R.Choubey, Advocate

Versus

Union of India & Anr. …. Respondents Through Mr.Saquib, Advocate

CORAM:

HON’BLE MR. JUSTICE ANIL KUMAR

HON’BLE MR. JUSTICE J.R.MIDHA

ANIL KUMAR, J.

*

1. The petitioner has sought the quashing of the dismissal order dated 1st December, 2002 from the service of the Assam Rifles by Commandant No.15 on account of committing the violation of Section 21(i) of the Central Civil Services (Conduct) Rules, 1965 (Restriction regarding marriages) and for quashing the order dated 3rd November, 2008 dismissing the appeal filed by the petitioner against his order of dismissal dated 1st November, 2002. The petitioner has also sought the quashing of order dated 1st March, 2011 dismissing the revision petition of the petitioner.

WP(C) No.8836/2011 Page 1 of 13

2. Brief facts to comprehend the controversies are that the petitioner joined the Assam Rifles on 29th May, 1994 as a Rifleman General Duty. He contended that while being posted to the field area away from his family, certain temperamental and other differences arose between him and his wife. His wife, namely, Smt. Asha Devi had filed a case under Sections 498A, 494 & 109 of the Indian Penal Code. The wife of the petitioner had also filed an application seeking maintenance under Section 125 of the Code of Criminal Procedure which was decided by Sh.R.K.Sharma, Additional Chief Judicial Magistrate, Nurtu, District Kangra, Himachal Pradesh by his order dated 3rd October, 2000 awarding the maintenance of Rs. 500/- per month to the wife of the petitioner. The wife of the petitioner, Smt. Asha Devi filed a complaint against the petitioner contending that the petitioner has also married Ms. Anju Devi, resident of Village- Gangat, Tehsil-Nurpur, District Kangra on 28th February, 1998 though Smt. Asha Devi was the legally wedded wife of the petitioner. Pursuant to the complaint filed by the wife of the petitioner Smt. Asha Devi an inquiry was proposed against the petitioner by order 31st December, 2001 under Rule 14 of the Central Civil Services (Classification, Control & Appeals) Rules, 1965. The articles of charge were given to the petitioner and he was asked to file a reply/representation against the same.

3. In reply to the articles of charges, the petitioner sent a reply dated 7th January, 2002 contending that he was married to Ms. Asha Devi, WP(C) No.8836/2011 Page 2 of 13 however, she never wanted to stay with him and that she used to go to her parents‟ house time and again and also expected the petitioner to stay with her, by leaving his old parents. The petitioner in the said reply admitted that he had married to Smt. Anju Devi in June, 1999 without taking a legal divorce from Smt. Asha Devi as he was ignorant of this legal aspect. He also stated that he has two children, one son and a daughter from Smt. Anju Devi and that he cannot leave her and his children with her as well. He also admitted that he had married a second time without permission from the Govt. due to the ignorance of rules. The reply dated 7th January, 2002 filed by the petitioner to the articles of charge made against him is as under:- “REPLY TO MEMORANDUM

Sir,

1. It is in response to memorandum No.A/153996/MS/2001 dated

2. I have the honour to submit that I was married to Smt. Asha Devi, daughter of Shri Mallu Ram of village Gangat, Tehsil Nurpur, District Kangra on 08th November, 1993. I have three children, two daughters and a son from her.

3. Smt. Asha Devi never wanted to stay with me. Time and again she would to her parents‟ house and expected me also to stay there with her leaving my old parents. Whenever I went to my home during my leave, I found that she was staying with her parents. I tried to explain but she did not understand. She was not willing to stay with me.

4. I married Smt. Anju Devi in June, 1999 without taking legal divorce from Smt. Asha Devi as I was ignorant of this legal aspect. I have two children, one son and a daughter from Smt. Anju Devi. I cannot leave her also as I have children from her too.

WP(C) No.8836/2011 Page 3 of 13

5. I married for the second time without obtaining a legal divorce from a court of law/prior permission from the Government due to ignorance of rules for which I

unequivocally plead guilty.”

4. The statement of the petitioner as witness No.1 was also recorded on 9th May, 2001 wherein he categorically admitted that he has married to Ms. Anju Kumari in June, 1999 in Jorhat Civil Court. To the question that had he obtained divorce from his wife Smt. Asha Devi, he replied „No‟. He also deposed that he had two children from his marriage with Ms. Anju Devi and their names are Ms. Dinesh Bala date of birth being 6th February, 1999 and master Bhim Singh date of birth being 24th April, 2000. He deposed that his second wife Ms. Anju Devi and his children are living at Jorhat in Sharma Colony. The statement of the petitioner which was recorded was explained to him in Hindi and thereafter he had signed it as correct.

5. The petitioner in his statement recorded on 9th May, 2001 had also deposed that he had eloped with Ms. Anju Devi and with her consent had moved to Jorhat in the year 1998. The reason for the second marriage given by the petitioner in his statement was that Smt. Asha Devi is seven year older than him as her date of birth is 4th April, 1963 whereas the petitioner‟s date of birth is 3rd October, 1970 and that his wife remains sick as she gets fits. He also complained that before WP(C) No.8836/2011 Page 4 of 13 the marriage he was shown a different girl but after the marriage he learnt that he and his parents had been cheated.

6. Rule 21 of the CCS Rules stipulates restriction on entering or contracting a marriage if such an employee has a spouse living. Rule 21 is as under:-

“21. Restriction regarding Marriage

(1) No Government servant shall enter into, or contract, a marriage with a person having a spouse living; and (2) No government servant having a spouse living, shall enter into, or contract, a marriage with any person; Provided that the Central Government may permit a Government servant to enter into, or contract, any such marriage as is referred to in clause (1) or Clause (2), if it is satisfied that–

(a) such marriage is permissible under the personal law applicable to such Government servant and

the other party to the marriage; and

(b) there are other grounds for so doing.

(3) A Government servant who has married or marries a person other than of India nationality shall forthwith intimate the fact to the Government.”

7. Taking these facts into consideration, the respondents passed an order dated 1st December, 2002 holding that the petitioner has violated Rule 21 of the Central Civil Service (Conduct) Rules, 1965 and that consequently his further retention in the public service is undesirable. Therefore, in exercise of the power conferred under Rule 19 (i) of the WP(C) No.8836/2011 Page 5 of 13 Central Civil Service (Classification, Control & Appeals) Rules, 1965, the petitioner, Rifleman General Duty bearing No.153996N was dismissed from the service w.e.f. 1st December, 2002 (AN). Aggrieved by the order of dismissal dated 1st December, 2002, the petitioner filed a statutory appeal dated 6th January, 2003 under Rule 23 of the CCS (CCA) Rules, 1965.

8. The appeal of the petitioner was not decided in the year 2003 expeditiously. Consequently, the petitioner filed a writ petition being W.P.(C) No.6004/2003. The said writ petition was disposed of by order dated 12th May, 2008 directing the respondents to dispose of the statutory appeal of the petitioner by a speaking order and to communicate the order to the petitioner, as well as, his counsel.

9. In the meantime, a criminal case filed against the petitioner by his wife Smt. Asha Devi, under Sections 494, 498A & 109 of the Indian Penal Code was dismissed by Sh. Amit Mandial, Chief Judicial Magistrate, 1st Class, Court No.2, Nurpur, District Kangra, Himachal Pradesh. In the said criminal case the Court had held that the petitioner‟s first wife failed to lead any evidence regarding the marriage conducted by the petitioner with Smt. Anju Devi as per the customs prevailing in their religion and caste. In the absence of any such evidence, the Court held that there was no evidence that the marriage with Smt. Anju Devi was performed as per the customs and therefore, WP(C) No.8836/2011 Page 6 of 13 held that the petitioner is not liable to be convicted for an offence under Section 494 of the Indian Penal Code.

10. In the statutory appeal dated 6th January, 2003, the petitioner asserted that the order of dismissal dated 1st December, 2002 was passed without complying with the rules of natural justice and that the petitioner was never served with any charge sheet, nor was any inquiry held as contemplated under the rules. The petitioner‟s assertion was that he has not been convicted under Rule 21 of the CCS (Conduct) Rules, 1965 and therefore, the order of dismissal under Rule 19(i) of CCS(CCA) Rules, 1965 could not be passed.

11. The appeal of the petitioner was, however, dismissed by the Director General, Assam Rifles by order dated 3rd November, 2008 holding that the charge of contracting second marriage had been established. While dismissing the appeal, it was noticed by the Appellate Authority that a number of statements/applications had been filed by the petitioner showing that he had contracted plural marriages which amounted to misconduct under Rule 21 of the CCS(Conduct) Rules, 1965.

12. Aggrieved by the dismissal of his appeal, the petitioner filed a revision petition under Rule 29 of CCS (CCA) Rules, 1965 contending inter-alia that the order of dismissal had been passed without WP(C) No.8836/2011 Page 7 of 13 complying with the rules of natural justice and the provisions of the statutory rules. It was also asserted that the petitioner was never convicted under Rule 21 of the CCS (Conduct) Rules, 1965.

13. The petitioner, thereafter filed another writ petition being W.P.(C) No.3639 of 2010, titled as „Malkiat Singh v. Union of India & Ors.,‟ which was also disposed of by order dated 14th February, 2011 directing that the revision petition filed on 23rd December, 2000 be disposed of by the respondents within a period of 12 weeks. The petitioner was also given the liberty to avail his remedies as per law if the decision in the revision petition would be adverse to the petitioner.

14. The revision petition of the petitioner pursuant to order dated 14th February, 2011 passed in W.P.(C) No.3639 of 2010, titled as „Malkiat Singh v. Union of India & Ors.‟, was dismissed by order dated 1st March, 2011 holding that the charge of contracting plural marriages against the petitioner violating Rule 21 (i) of the CCS(CCA) Rules, contracting the second marriage was made out and that in the circumstances, the order of dismissal of the petitioner is just and legal.

15. The petitioner has challenged his order of dismissal dated 1st December, 2002, order dated 3rd November, 2008 dismissing his appeal and order dated 1st March, 2011 dismissing his revision petition in the present writ petition inter-alia on the ground that the order of dismissal WP(C) No.8836/2011 Page 8 of 13 dated 1st December, 2002 was passed without complying with the rules of natural justice as also the constitutional safeguard enshrined in Article 311 of the Constitution of India. It is also contended that no charge sheet was served on the petitioner, nor was any inquiry conducted as contemplated under the rules. It has also been asserted that the petitioner was never „convicted‟ under Rule 21 of CCS(Conduct) Rules, 1965 and consequently, the order of dismissal pursuant to exercising the power under Rule 19(i) of CCS(Classification, Control & Appeals) Rules, 1965 could not be passed. The petitioner himself categorically asserted that no conviction is contemplated for violation of Rule 21 of CCS (Conduct) Rules, 1965.

16. The writ petition is opposed by the learned counsel for the respondents who has appeared on advance notice. Leaned counsel for the respondents has produced the entire record pertaining to the issuance of the charge sheet to the petitioner, reply filed by the petitioner to the charge sheet dated 7th January, 2002 and the statement of the petitioner recorded by the respondents which were read over to the petitioner in Hindi and were signed by him endorsing them to be correct.

17. This Court has heard learned counsel for the parties in detail and has perused the entire record pertaining to the petitioner produced before this Court, as well as, the orders challenged by the petitioner. WP(C) No.8836/2011 Page 9 of 13 From the perusal of the record, it is apparent that the charge sheet was served on the petitioner and that he had filed the reply dated 7th January, 2002 which is reproduced hereinabove. The petitioner in his reply to the charges framed against him regarding the allegation of a second marriage, had categorically stated that he had married Ms. Anju Devi, resident of Village Gangat, Tehsil-Nurpur, District Kangra, Himachal Pradesh though his legally wedded wife Smt. Asha Devi is alive. He had rather justified the second marriage to Ms. Anju Devi in June, 1999 without taking legal course on the ground that he was not aware about legal requirement to obtain prior permission for contracting the second marriage from the Govt. due to the ignorance of the rules. Since the petitioner in the reply to the articles of charge had admitted that neither he had taken permission for his second marriage from the Govt. under Rule 21 of CCS(Conduct) Rules, 1965, nor had he obtained a divorce from his first wife Smt. Asha Devi who was also alive at the time, it cannot be held that violation of Rule 21 of CCS(Conduct) Rules, 1965 is not made out. Since the violation of Rule 21 of CCS(Conduct) Rules, 1965 was made out, the Disciplinary Authority awarding the punishment to the petitioner under Rule 19(i) of CCS(Classification, Control & Appeals) Rules, 1965 cannot be faulted. Learned counsel for the petitioner in the circumstances, has failed to show violation of any statutory rule or denial of principle of natural justice. The word „convicted‟ is not to be understood so as to mean that if the charged officer is acquitted of the offence of bigamy the same WP(C) No.8836/2011 Page 10 of 13 would also absolve him of any consequences of violation of Rule 21 of the CCS(Conduct) Rules, 1965.

18. The statement given by the petitioner on 9th May, 2001 admitting his marriage to Smt. Anju Devi his second wife and the justification given for the marriage has not been denied in the appeal and the revision petition filed by the petitioner. It is also not the plea of the petitioner that he was coerced into giving such statements or was forced to give such statements during the inquiry. Reply dated 7th January, 2002 to the charge sheet has also not been denied by the petitioner either in the appeal or the revision petition filed by him which were dismissed by order dated 3rd November, 2008 and 1st March, 2011. In the present writ petition also it has not been denied that the petitioner had filed the reply dated 7th January, 2002 to the charge sheet admitting second marriage to Smt. Anju Devi and the fact that he has two children from the said marriage as well as the reasons for contracting the second marriage stipulated in the reply.

19. The Disciplinary proceedings initiated against the petitioner were not stayed on account of the criminal complaint filed by the wife of the petitioner, Smt. Asha Devi under Section 494 of the Indian Penal Code on 29th April, 1998. In the criminal proceedings, just because the first wife of the petitioner could not produce the necessary evidence regarding the solemnization of the marriage by the petitioner with Smt. WP(C) No.8836/2011 Page 11 of 13 Anju Devi, the admissions made by the petitioner before the Disciplinary Authority will not be negated on account of it, nor will the decision of the Disciplinary Authority be impacted in the present facts and circumstances on account of the dismissal of the complaint under Section 494 of the Indian Penal Code filed by the first wife of the petitioner on account of lack of evidence.

20. Learned counsel for the petitioner is also unable to substantiate that the punishment is disproportionate to the charges made out against the petitioner. The petitioner cannot take shelter under the plea that he was cheated into entering into the matrimony since he was allegedly shown some other girl, but was married off to Smt. Asha Devi and also that she is older to her and is suffering from illnesses and is not fit and had allegedly declined to live with him and his parents, as she was insisting on living with her parents. The petitioner is also not entitled for any relief on account of the fact that he was ignorant of the rules of obtaining legal permission before entering into a second marriage as admitted by him in his reply dated 7th January, 2002 to the articles of the charge as ignorance of law is no excuse.

21. In the totality of the facts and circumstances, there is no illegality, irregularity or any such perversity or jurisdictional error which will require any interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India in respect of WP(C) No.8836/2011 Page 12 of 13 the orders passed by the respondents dismissing the petitioner from service. The writ petition is, therefore, dismissed. ANIL KUMAR, J.

J.R.MIDHA, J.

January 17, 2012

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WP(C) No.8836/2011 Page 13 of 13

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