Madhya Pradesh High Court
Jogender Singh vs Union Of India on 26 September, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:24317
1 WP. No. 3077 of 2008
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
WRIT PETITION No. 3077 of 2008
JOGENDER SINGH
Versus
UNION OF INDIA AND OTHERS
Appearance:
Shri D.P.Singh - Advocate for petitioner.
Shri Praveen Kumar Newaskar- Deputy Solicitor General for respondent/UOI.
Reserved on : 29.08.2025
Pronounced on : 26.09.2025
___________________________________________________________________
ORDER
This petition under Article 226 of the Constitution of India has been filed by the petitioner seeking the following relief:-
"It is, therefore, most humbly prayed that Hon'ble High Court may kindly be pleased to allowed the this petition and termination order dated 15.03.2008 Annexure P/1 and appellate order dated 06.06.2008 Annexure P/2 be quashed and order of any other Signature Not Verified Signed by: MONIKA SHARMA Signing time: 9/27/2025 10:23:07 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:24317 2 WP. No. 3077 of 2008 respondents who might have confirmed be dismissed and petitioner be re-instated with full back salary and benefits according to law."
2. Counsel for the petitioner submitted that petitioner was initially appointed as a Constable on 02.04.1990. The first wife of the petitioner Smt. Sarla Devi was ill for a long time. She was not able to look after her family. She was unable to do domestic work. In said circumstances, the petitioner had second married with other woman Smt. Raju Devi in year 1995 with consent of his first wife Smt. Sarla Devi.
3. Respondent/department issued a show cause notice to petitioner on 03.08.2005 in this regard. Thereafter, petitioner has submitted reply dated 16.08.2005 and admitted the fact of second marriage with Smt. Raju Devi. The petitioner also stated in his reply that before marriage, he has taken consent from his first wife and his parents. The petitioner has also enclosed the consent through affidavit of first wife Smt. Sarla Devi, Panchnama and other documents along-with reply dated 26.09.2005. Thereafter, Competent Authority has constituted a board of members through inquire into the case of petitioner. On the recommendation of the board, the Competent Authority is directed to petitioner to submit medical documents certificate about the illness or otherwise unsuitability of the first wife. Thereafter, respondent No.3 has issued termination Signature Not Verified Signed by: MONIKA SHARMA Signing time: 9/27/2025 10:23:07 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:24317 3 WP. No. 3077 of 2008 order dated 15.03.2008, thereafter petitioner filed an appeal against the termination order before Appellate Authority which was also dismissed by order dated 06.06.2008 by respondent No.2.
4. Learned counsel for the petitioner submitted that the consideration of the second marriage of the petitioner was very critical, because the petitioner's first wife had been ill for a long time and she was unable to look after his family and she was unable to do domestic work. In these circumstances, petitioner's first wife Smt. Sarla Devi had given her consent for second marriage. The petitioner has served 17 years 10 months service before the respondent/department. At the time of passing impugned order, the total service period has not been considered by the respondent. After dismissal of service of petitioner the family has come under starvation and it is very difficult to survive. As per Rule 10(2) of Indo Tibetan Border Police Force Rules, 1994 (for brevity "ITBP Rules"), any employee during his service period if he performs second marriage in the life time of his first wife then he would be disqualified for service and he can discharge or retire from his service. At the time of issuing the impugned order, the respondents have not considered Rule 10(2) of ITBP Rules. Signature Not Verified Signed by: MONIKA SHARMA Signing time: 9/27/2025 10:23:07 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:24317 4 WP. No. 3077 of 2008
5. Per contra, learned counsel for the respondent has submitted that the no cause of action a part of cause of action arise in the State of Madhya Pradesh and petitioner has filed the petition before this Court on the ground of ordinary residence of the petitioner in Madhya Pradesh, therefore, petition is not maintainable because the lack of the territorial jurisdiction to entertain the writ petition. It is further submitted that the petitioner is having alternative remedy of preparing revision before the Competent Revisional Authority and petitioner has directly come before the Court, therefore, the present petition is not maintainable. Action was taken under Section 10(2) read with Section 25(2) of Indo Tibetan Border Police Force Act, 1994 (for brevity "ITBP Act").
6. Learned counsel for the respondent further submitted that ITBP Rules is competent force wherein the maintain of the disciplinary at most important in order to provide best service to the nation. As such keeping a person life the petitioner is harmful for the force and consequently for the nation also. Hence, action of the answering respondent in terminating the service of the petitioner deserve to be maintained as legal and valid. During the life time to first marriage, the petitioner contracted the second marriage and suppressed material facts before the answering respondents. Thus, the service of the petitioner has been terminated by the disciplinary authority and upheld by the appellate Authority, Signature Not Verified Signed by: MONIKA SHARMA Signing time: 9/27/2025 10:23:07 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:24317 5 WP. No. 3077 of 2008 After following due procedure of law. It is further submitted that the petitioner has not submitted any material documents i.e. medical documents of first wife with respect to her illness or otherwise of her unsuitability. The Competent Authority has constituted a board of members to inquire into the case of the petitioner on the recommendation of the board. The Competent Authority has directed the petitioner to submit medical documents certificate. About the illness or otherwise unsuitability of the first wife but the petitioner has failed to submit the documents and has not filed any reply. On the basis of material on record, it is established by the Competent Authority that the second marriage of the petitioner was not legal and valid to continue as a member of ITBP Act. Learned counsel for the petitioner never applied for written permission before entering into second marriage. As per service rules, petitioner never submitted any documentary evidence with respect to illness or unfitness or otherwise of the first wife. In support of his submission, learned counsel for the respondents placed reliance upon the order passed by this Court in the case of Rajendra Singh Bhadoriya Vs. Union of India and others reported in 2020 (1) M.P.L.J. 168.
7. Heard learned counsel for the parties and perused the record. Signature Not Verified Signed by: MONIKA SHARMA Signing time: 9/27/2025 10:23:07 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:24317 6 WP. No. 3077 of 2008
8. First I decide the question of preliminary objection in respect of territorial jurisdiction.
9. Order of dismissal passed by respondent No.3 was served upon the petitioner in Arunachal Pradesh and in the impugned dismissal order address of petitioner was mentioned village Thatipur colony, Teshil Gwalior (M.P.). Since petitioner was the native of District Gwalior (M.P.), therefore, after removal from service, he came back to his native place at Gwalior. He challenged the said order of removal by way of appeal before the Deputy Inspector General (NE-I), Indian Tibbat Border Police Force, SHQ (NE) Khating Hill, Papumpara, Itanagar, Arunachal Pradesh. Although, initial order of removal was passed in Arunachal Pradesh but later on all proceedings were conducted by the petitioner while residing at Gwalior. Petitioner had sent the appeal from his resident at Bhind and appeal rejection order was served to the petitioner within the jurisdiction of this Court i.e., his residence at Bhind which falls within a jurisdiction of this Court and in similar fact situation, the Apex Court in the case of Nawal Kishore Sharma Vs. Union of India and Ors., reported in 2014 (9) SCC 329, wherein the appellant of said case received the order of removal (on medical ground) at Mundra (Gujrat) but being the native of District Gaya (Bihar), he made all correspondence from district Gaya and the Hon'ble Apex Court found that the Signature Not Verified Signed by: MONIKA SHARMA Signing time: 9/27/2025 10:23:07 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:24317 7 WP. No. 3077 of 2008 case of jurisdiction within the scope of Patna High Court. The fact situation of the present case is identical and virtually overlapping.
10. At the time of termination, petitioner was posted in Arunachal Pradesh and the order of termination dated 15.03.2008 was also passed while he was posted in Arunachal Pradesh. However, after termination of service, petitioner had no occasion to remain in the said State and returned to his native place wherefrom and all the correspondence pertaining to petitioner's services ensued. This fact is also evident from the impugned order dated 06.06.2008, which indicates that the order rejecting the appeal was conveyed to the petitioner at his native place.
11. The judgment in the case of Rajendra Singh Bhadoriya (supra), relied upon by the counsel for the respondents, is different on facts. The action was taken as also the orders were passed by the respondents therein in the State of West Bengal, it is only after passing of the order, the petitioner subsequently settled down at Gwalior. In those facts this Court held that the entire cause of action arose at West Bengal and no cause of action was available to the petitioner therein to approach this Court. Thus, the judgment rendered in the case of Rajendra Singh Bhadoriya (supra) is not helpful to the respondents. Signature Not Verified Signed by: MONIKA SHARMA Signing time: 9/27/2025 10:23:07 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:24317 8 WP. No. 3077 of 2008 Accordingly, the preliminary objection raised by the respondents is rejected and therefore, in the considered opinion of this Court, this would give him cause of action to file this petition before this Court.
12. If this Court is not having territorial jurisdiction and as present petition is admitted petition and pending since 10.07.2008 and I take a lenient view of the matter as I am of the opinion that if I direct the appropriate authority to pass on merit of the petitioner's reply/representation, nobody will be prejudiced.
13. In the instant case, it is an admitted fact that petitioner has worked from 02.04.1990 and worked for 18 years. The misconduct is in respect of bigamy. There is no such allegation that the petitioner has not performed his duty properly or was neglected in the same. Thus, I am of the opinion that removal from service of the petitioner on the charge of bigamy is too harsh punishment as bigamous marriage not being connected with performance of duties by the petitioner and the second marriage of the petitioner has nothing to do with either his official position or discharge of official duties.
14. The act of entering into a second marriage during the validity of the first marriage, if such second marriage is not permissible under the personal law of the concerned person, is an offence covered by Section 494 of the Indian Penal Signature Not Verified Signed by: MONIKA SHARMA Signing time: 9/27/2025 10:23:07 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:24317 9 WP. No. 3077 of 2008 Code. However, by virtue of the provisions contained in Section 320(2) of the Code of Criminal Procedure the offence under Section 494 of the Indian Penal Code is compoundable with the leave of the court. Section 320(8) of the Cr.P.C. contemplates that on an offence being compounded in the accordance with the provisions of Section 320, the person charged with the offence stands acquitted. Section 320 a of the Code of Criminal Procedure does not make all the offences under the Indian Penal Code compoundable. There are some offences which are compoundable without permission of the court and some other offences are compoundable with permission of the court. There is a third category of offences which are not compoundable at all. The effect of an offence, being compounded has also been noted. From the above provisions of the Cr.P.C. it will not be incorrect to come to the conclusion that the law itself treats different offences on a different, if not unequal, footing. The aforesaid fact would be relevant because it furnishes an objective basis for deciding as to what punishment should be imposed on a delinquent in a departmental proceeding where the subject-matter of the charge also amounts to a criminal offence. Punishment imposed by the employer in a disciplinary proceeding must always be by application of objective standards and not on the basis of personal perceptions of the disciplinary authority. It is here where the provisions contained in Section 320 of the Code of Signature Not Verified Signed by: MONIKA SHARMA Signing time: 9/27/2025 10:23:07 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:24317 10 WP. No. 3077 of 2008 Criminal Procedure making the offence of bigamy a compoundable offence would furnish a reasonable, objective and acceptable basis for imposition of punishment in a departmental proceeding where the charge also is one of bigamy. For commission of misconduct under the provisions of the Indo Tibetan Border Police Force Rule, 1994. Three different shades of punishment starting with retirement, removal and dismissal on the ground of unsuitability and also mentioned that Central Government may, if satisfied that there are sufficient grounds for so ordinary, exempt any person from the operation of this rule. Rule 10 of Indo Tibetan Border Police Force Rules and Indo Tibetan Police Force Act, 1992 reads as under:-
"10. Ineligibility.-(1) No person, who has more than one wife living or who having a spouse living marries in any case in which such marriage is void by reason of its taking place during the life time of such spouse, shall be eligible for appointment, enrolment, or employment in the Force. (2) Any person subject to the Act, who contracts or enters into a second marriage during the life time of his first spouse shall render himself ineligible for retention in service and may be dismissed, removed or retired from service on ground of unsuitability:
Provided that the Central Government may, if satisfied that there are sufficient grounds for so ordering, exempt any person from the operation of this rule."
15. Which particular punishment should be imposed in a particular case, undoubtedly is the prerogative of the employer. But such a decision has to be taken on an objective basis and not on individual and personal perceptions. When Signature Not Verified Signed by: MONIKA SHARMA Signing time: 9/27/2025 10:23:07 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:24317 11 WP. No. 3077 of 2008 the charge of bigamy under the criminal law has been made a compoundable offence, compoundable at the volition of the affected parties, the effect of which is an acquittal of the offender, the extreme punishment imposed on the petitioner in the present case in a situation where the first wife had given her consent for second marriage, cannot but be understood to be wholly disproportionate and made without due application of mind. Any action without due application of mind cannot have judicial approval. If another punishment which could have brought in lesser consequences can be contemplated, the imposition of extreme punishment of removal has to be construed by the court to be disproportionate.
16. As per Hon'ble Supreme Court in the case of State Bank of India and Ors. Vs. Samarendra Kishore Endow and another reported in (1994) 2 SCC 537, paragraphs 14 and 15 read as under:-
"14. Now coming to the facts of this case it would appear that the main charge against the respondent is putting forward a false claim for reimbursement of expenditure incurred for transporting his belongings from Phek to Amarpur. So far as charge 5 is concerned there is no finding that the account become irregular or that any loss was incurred by the bank on account of the irregularity committed by the respondent. In the circumstances it may be that the punishment of removal imposed upon the respondent is harsh but this is a matter which the Disciplinary Authority or the Appellate Authority should consider and not the High Court or the Administrative Tribunal. In our opinion, the proper course to be adopted in such situations would be to send the matter either to the Disciplinary Authority or the Appellate Authority to impose appropriate punishment.Signature Not Verified Signed by: MONIKA SHARMA Signing time: 9/27/2025 10:23:07 AM
NEUTRAL CITATION NO. 2025:MPHC-GWL:24317 12 WP. No. 3077 of 2008
15. For the above reasons, the appeal is allowed and the order of the High Court is set aside, with the observation that the Appellate Authority shall consider whether a lesser punishment is not called for in the facts and circumstances of the case. The Appellate Authority shall pass orders in this behalf within four months of the receipt of the copy this Order. No costs."
17. As per Hon'ble Supreme Court in the case of V. Ramana Vs. A.P. SRTC and Others reported in (2005) 7 SCC 338, paragraphs 11 and 12 read as under:-
"11. The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision for that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
12. To put it differently unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court Tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed."
18. The Apex Court in several subsequent decision has taken the view that the proportionality of the punishment imposed should be judge by application of the Wednesbury principles and an application of such principles if the Court has satisfied that the punishment imposed is disproportionate on shockingly excessive, the High Court would have the option to sending the matter back to Signature Not Verified Signed by: MONIKA SHARMA Signing time: 9/27/2025 10:23:07 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:24317 13 WP. No. 3077 of 2008 the authority or in an appropriate case to impose the punishment itself. In case of Ramana's (supra), the misconduct was in the context of performance of duties of the post held by the incumbent. In the present case, clearly and evidently, the second marriage of the petitioner has nothing to do with either his official position or discharge of official duties.
19. In the case of Colour-chem Ltd. Vs. A.L. Alaspurkar reported in (1998) 3 SCC 192, the Apex Court held that if the punishment imposed is shockingly disproportionate to the charges levelled against a delinquent, it may be open to the Court to interfere. Hon'ble Supreme Court in the case of UP State Transport Corporation Vs. Mahesh Kumar Linkra reported in (2000) 3 SCC 450 again same view has been taken by Hon'ble Apex Court.
20. The Hon'ble Supreme Court in the case of State of Meghalaya v. Mecken Singh N. Marak, reported in (2008) 7 SCC 580, has also held that if the punishment is shockingly disproportionate to the proved misconduct this Court by exercising jurisdiction under Article 226 of the Constitution can interfere with the quantum of punishment but the court has to give reasons. The relevant paragraph is reproduced as under:-
"14. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases The jurisdiction of the Signature Not Verified Signed by: MONIKA SHARMA Signing time: 9/27/2025 10:23:07 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:24317 14 WP. No. 3077 of 2008 High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice."
21. In the instant case, it is an admitted fact that petitioner has worked from 1990 and worked for 18 years. The misconduct is in respect of bigamy. There is no such allegation that the petitioner has not performed his duty properly or was negligent in the same. Thus, I am of the opinion that removal from service of the petitioner of the charge of bigamy is too harsh punishment.
22. Rule 10 of Indo Tibetan Border Police Force, Rule 1994 provides for nature of penalties. There are three types of penalties prescribed. Dismissal and removal from service is a major penalty. There is another major penalty which is prescribed in the rules which is which is retired from service on the ground of unsuitability. In case of removal, the petitioner who has served the department for 17 years 10 months will not get any monthly benefit, but in case of compulsory retirement he will get same. Even as per Rule 10, there is provision that Central Signature Not Verified Signed by: MONIKA SHARMA Signing time: 9/27/2025 10:23:07 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:24317 15 WP. No. 3077 of 2008 Government may if satisfied that there are sufficient grounds for so ordering, exempt any person from the operation of this rule.
23. Not only this, in another case decided by Manipur High Court in the case of Union of India and Ors. Vs. Mohammad Jakir Hussain, 2015 SCC Online Manipur 67, a similar view has been taken in respect of Constable in CRPF and punishment of dismissal has been set aside.
24. I, therefore, interfere with the punishment imposed and as the same had been imposed without due consideration of the relevant facts and circumstances as pointed out in the present order, I am of the view that the respondent/Disciplinary Authority/Central Government should be directed to reconsider what should be correct measure of punishment to be imposed on the petitioner. Such reconsideration will be done by respondent, as per Rule 10 of Indo Tibetan Border Police Force Rules and Indo Tibetan Police Force Act, 1992 reads as under:-
"10. Ineligibility.-(1) No person, who has more than one wife living or who having a spouse living marries in any case in which such marriage is void by reason of its taking place during the life time of such spouse, shall be eligible for appointment, enrolment, or employment in the Force.
(2) Any person subject to the Act, who contracts or enters into a second marriage during the life time of his first spouse shall render himself ineligible for retention in service and may be dismissed, removed or retired from service on ground of unsuitability:Signature Not Verified Signed by: MONIKA SHARMA Signing time: 9/27/2025 10:23:07 AM
NEUTRAL CITATION NO. 2025:MPHC-GWL:24317 16 WP. No. 3077 of 2008 Provided that the Central Government may, if satisfied that there are sufficient grounds for so ordering, exempt any person from the operation of this rule."
Also considering that the petitioner has served 17 years 10 months and also considering the relevant facts and circumstances as pointed out in the present order within a period of two months from the date of receipt of a certified copy of this order and if on such recommendation any other punishment is imposed on the petitioner which may have the effect of his future, I deem it appropriate to leave it to the respondent/Disciplinary Authority/Central Government to make appropriate order for award of such consequential benefits as may be found to be due to the petitioner.
25. Consequently, the impugned orders dated 15.03.2008 (Annexure P/1) and 06.06.2008 (Annexure P/2) are hereby set aside and consequently, this writ petition stands partly allowed as indicated above.
(Anand Singh Bahrawat) Judge Monika Signature Not Verified Signed by: MONIKA SHARMA Signing time: 9/27/2025 10:23:07 AM