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Subhash Uddhavrao Rathod vs The Union Of India And Others on 24 August, 2018

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

WRIT PETITION NO. 7351 OF 2013

Subhash s/o Uddhavrao Rathod,
age 45 years,occ. Labour,
R/o Achari Tanda, Murum,
Taluka Omerga, Dist.Osmanabad …Petitioner

VERSUS

1] The Union of India,

2] The Director General,
Border Security Force,
Block 10, C.G.O. Complex,
Lodhi Road, New Delhi,

3] Narendra Singh Dagawas Irala,
age major, occ. Service
as Inspector General,
Border Security Force Frontier,
Headquarters (North Bengal),
P.O. Kadamtala, District Darjiling,
State of West Bengal,
Residential Address :
8/36, Hari Nagar,
Near Shastri Nagar,
Logal Road, Ajmer
(Rajasthan State),

4] T.G.Simte,
age 48 years, occ. Service as
Commandant, 48 Battalion,
Baikunthpur, Dist. Jalpaigudi,
(North Bengal),
State of West Bengal …Respondents

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…..
Mr. R.B.Ade, advocate for the petitioner
Mr.S.B.Deshpande, ASG for respondent nos. 1 and 2
Respondent no.3 served
—-

CORAM : S.V.GANGAPURWALA SUNIL K.KOTWAL, JJ.

DATE OF RESERVING THE JUDGMENT : 16.7.2018

DATE OF PRONOUNCEMENT OF JUDGMENT : 24.8.2018

J U D G M E N T (Per Sunil K. Kotwal, J.)

Rule. Rule is made returnable forthwith.

With the consent of the learned counsel for the

parties, the petition is taken up for final hearing.

2. This petition is filed for quashment of the

order, dated 30.4.2010, passed by respondent no.4,

dismissing the petitioner from the service of Border

Security Force (BSF).

3. Learned counsel for the petitioner submits

that petitioner joined service in BSF as constable on

23.1.1990. Initially he married with one Fulshree

alias Alka on 28.5.1996. However, on account of

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matrimonial dispute, petitioner was constrained to

file divorce petition in the Court of Civil Judge,

Senior Division, Osmanabad against his wife Fulshree

on 25.7.1997. As a counter blast, even Fulshree

filed FIR against the petitioner, which resulted into

registration of offence against the petitioner under

Section 498 A of the Criminal Procedure Code. Even

proceeding under Section 125 of the Criminal

Procedure Code was filed against the petitioner by

his first wife Fulshree.

4. Next submission of learned counsel for the

petitioner is that on 3.1.1999 petitioner received

telegram at his head quarter which was sent by the

brother of Fulshree that Fulshree died in accident.

Therefore, petitioner rushed to the parental home of

Fulshree and he was informed that Fulshree was no

more. Being satisfied that Fulshree was dead, the

petitioner performed second marriage with Gauri

daughter of Hamla Pawar on 9.5.1999. After marriage,

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petitioner got recorded name of his second wife in

his service record.

5. Next contention of learned counsel for

petitioner is that subsequently on 24.8.2003 the

first wife of petitioner submitted written complaint

to respondent no.3 regarding second marriage of the

petitioner. In the result, petitioner was suspended.

Subsequently, his suspension was revoked by

respondent no.3. However, because petitioner made

certain complaints against respondent no.3 regarding

fake encounter, with mala fide intention show cause

notices were served to the petitioner for termination

of his service.

6. Learned counsel for the petitioner submits

that without holding departmental inquiry against the

petitioner and without giving opportunity of hearing

the petitioner was dismissed from service on

30.4.2010. He submits that the order of dismissal

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being passed in violation of principles of natural

justice is illegal and deserves to be set aside.

7. Learned Additional Solicitor General for

respondent nos. 1 and 2 submits that in the case at

hand the second marriage of the petitioner during the

subsistence of his first marriage with Fulshree alias

Alka is an admitted fact and even petitioner has

admitted the same by submitting application at his

head quarter on 25.8.2003. His contention is that

under Rule 21 (1) of the Central Civil Services

(Conduct) Rules, 1964 (CCR) government servant cannot

enter into or contract a marriage having his first

wife living. He has drawn our attention to Rule 7

(1) of the Border Security Force Rules, 1969, which

indicates that performing second marriage by member

of BSF during the subsistence of his first marriage

amounts to disqualification.

8. His next submission is that before passing

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order of dismissal show cause notice as mandated

under Rule 22 BSF Rules was served on the petitioner.

Opportunity of submitting explanation was given to

him. Therefore, obviously there is no violation of

principles of natural justice while passing the order

of dismissal.

9. For clarification Rule 21 of CCR and Rule 7

BSF Rules are reproduced 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 a
person other than of India Nationality shall
forthwith intimate the fact to the Government.”

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” 1[7.Disqualification.–

(1) No person–

(a) who has entered into or contracted a marriage
with a person having a spouse living, or

(b) who having a spouse, has entered into or
contracted a marriage with any person, shall be
eligible for appointment into Force : Provided
that the Central Government may if satisfied that
such marriage is permissible under the personal
law applicable to such person and the other party
to the marriage and that there are other grounds
for so doing, exempt any person from the operating
of this rule.] ”

10. In the case at hand, after hearing learned

counsel for the parties and after going through the

record placed before this Court by both the rival

parties, it reveals that admittedly during the

subsistence of first marriage of Fulshree and during

her life time petitioner performed second marriage

with one Gauri on 9.5.1999. Even petitioner has

admitted the performance of second marriage by

submitting application dated 25.8.2003 to his

Commander (Annexure R-3). In view of these admitted

facts, question of holding fresh inquiry regarding

the second marriage of the petitioner does not arise.

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11. The only defence raised by the petitioner is

that on 3.1.1999 he received telegram at his head

quarter regarding accidental death of his wife

Fulshree, sent by brother of Fulshree. According to

the petitioner, after getting knowledge of the said

mishap, he rushed to his native place and to the

parental home of Fulshree and he was informed that

Fulshree was no more and, therefore, he performed

second marriage with Gauri on 9.5.1999. However,

such plea raised by petitioner is not at all

acceptable. On the contrary, it must be observed

that the petitioner did not hesitate even to make

false statement before this Court regarding the above

said telegram. Respondents placed on record the said

telegram (Annexure R-1) which shows that it was

received at the head quarter of petitioner on

10.10.2000 and it was sent by brother of the

petitioner namely Shri Vasant Rathod. Thus,

obviously after performance of second marriage on

9.5.1999 petitioner has tried to create such false

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defence by managing to issue the above said telegram

dated 10.10.2000 through his brother, with intent to

absolve himself from the charge of misconduct. This

conduct of the petitioner is absolutely

objectionable.

12. Thus, we have no hesitation to hold that the

defence raised by the petitioner regarding

performance of his second marriage on account of

receipt of news of death of his first wife is not at

all acceptable. On the other hand, the above

circumstances on record indicate that the petitioner

knowingly performed second marriage during the

subsistence of his first marriage and during the life

time of his wife Fulshree.

13. In view of this undisputed second marriage

of the petitioner during the subsistence of first

marriage and during the life time of his first wife,

certainly the petitioner is guilty of misconduct

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under Rule 21 of CCR and disqualified under Rule 7

(1) of BSF Rules.

14. Record shows that as mandated under Rule 22

of the BSF Rules, show cause notices of termination

were served on the petitioner on 13.4.2009,

17.12.2009 and 3.3.2010. In response to these

notices, explanation was also submitted by the

petitioner. The impugned order, dated 30.4.2010,

passed by respondent no.4 Commandant indicates that

the explanations submitted by the petitioner were

considered by the competent authority and as those

explanations were not satisfactory the order of

dismissal was passed on 30.4.2010.

15. After service of order of dismissal dated

30.4.2010, representations were submitted by the

petitioner to the Director General, BSF on 10.5.2010,

3.5.2010 and 3.6.2010. All representations were

rejected by competent authority on 29.9.2010. Again

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last representation was submitted by petitioner to

the Director General on 12.9.2011, which was also

rejected on 8.11.2011 by assigning detailed reasons

for rejection. Thus, by no stretch of imagination,

it can be held that opportunity of hearing was not

given to the petitioner or there was violation of

principles of natural justice. On the other hand,

we are satisfied that the disciplinary authority has

duly followed proper procedure under BSF Rules and

after giving sufficient opportunity of hearing to the

petitioner passed well reasoned impugned order dated

30.4.2010.

16. Last submission of learned counsel for the

petitioner is that considering the young age of the

petitioner and his responsibility, the punishment of

dismissal is disproportionate and some lesser

punishment be imposed. However, in view of “Chief

Executive Officer Krishna District Co-operative

Central Bank Ltd. and another Vs K. Hanumantha Rao

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and asnother (2017 (4) Mh.L.J. 484)” while exercising

their powers of judicial review over such matters,

Courts do not sit as appellate authority. Decision

qua the nature and quantum is the prerogative of the

disciplinary authority. It is not the function of

the High Court to decide the same. Court can

interfere only when the punishment is shockingly

disproportionate to the extent that it shakes the

conscience of the Court. In the case at hand,

considering the over all conduct of the petitioner

and gravity of the misconduct, we are satisfied that

the punishment of dismissal from service is

absolutely appropriate punishment and it needs no

interference by this Court. It follows that this

Writ Petition fails. Writ Petition is dismissed.

Rule is discharged. No costs.

[SUNIL K.KOTWAL, J.] [S.V.GANGAPURWALA, J.]

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