Central Administrative Tribunal - Delhi
Jung Bahadur vs Govt. Of Nct Of Delhi on 22 December, 2011
Central Administrative Tribunal
Principal Bench
OA NO. 3069/2010
New Delhi this the 22nd day of December, 2011
Honble Mr.G.George Paracken, Member(J)
Honble Dr. A.K.Mishra, Member(A)
Jung Bahadur
S/o Sh. Maha Singh
R/o Village & PO Singhu
Delhi.
. Applicant
(By Advocate: Sh. Ajesh Luthra)
Versus
1. Govt. of NCT of Delhi
Through Chief Secretary,
Players Building, ITO,
New Delhi.
2. The Principal Secretary [H&FW], GNCT,
Delhi Sachivalaya
9th Level, A Wing,
New Delhi.
3. The Medical Superintendent,
Satyawadi Raja Harish Chander Hospital
GNCT, Plot No.30, Sector 7A,
Narela, New Delhi.
.. Respondents
(By Advocate: Ms. Alka Sharma)
O R D E R
Honble Shri George Paracken:
In this Original Application filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, he has challenged the (i) Annexure A-3 enquiry officers report dated 6.3.2007 according to which the enquiry officer held that the article of charge against him has been proved. (ii) The Annexure A-1 order No.F.7(23)/2005/DHS/Vig./HQ dated 1.6.2007 passed by the disciplinary authority imposing upon him the punishment of dismissal from service and (iii) the Order No. 4(77)/85/MC/TRC/4480 dated 11.8.2008 passed by the appellate authority rejecting his appeal and upholding the order of the disciplinary authority.
2. He has also filed a Miscellaneous Application No.2374/2010 for condonation of delay in filing this Original Application challenging Appellate Authoritys order dated 11.08.2008. According to him, due to the impact of the punishment imposed upon him, he had gone into reactive depression and he recovered from it only in the first week of July, 2010. He has also produced the copies of Medical prescriptions, bills for the medicine and fitness certificate from Dr. Vimal Kumar, MD from Kochhar Psychiatry Centre, Pitampura, Delhi.
3. The charge against the applicant and the substance of imputation of misconduct alleged to have been committed by him are as under:
That Sh. Jung Bahadur, Driver while working as Driver in Satyawadi Raja Harish Chander Hospital, Narela, Delhi was reported that he has acted in a manner unbecoming of a Govt. Servant in as much as he has (been) entered into and contracted a second marriage there being a spouse living at the time of the marriage. Imputation of Misconduct That the said Sh. Jung Bahadur while working as Driver in Satyawadi Raja Harish Chander Hospital, Narela, Delhi was reported by his earlier said wife Smt. Usha that he has contracted a second marriage while the Govt. servant has a spouse living, which is legally null and void by reason of there being a spouse living. He is also neglecting his earlier said wife Smt. Usha and two daughters by stopping of maintenance allowance w.e.f. June, 2005 which was being paid regularly @ Rs.2000/- per month since August, 2003 and also stopping of saving deposits in Post Office @ Rs.500/- each per month in the name of his two daughters. A memo dated 22.8.2005 was served upon him with the directions to submit his explanation on the complaint his earlier said wife Smt. Usha. In response of our above memo the official has submitted his explanation dated 06.09.2005 in which he has admitted that Smt. Usha is his earlier wife. Whereas as per the nomination form of GPF, Insurance and Death-cum-Gratuity, the official has nominated Smt. Urmila as wife, Monika as daughter and Twinkle as son.
4. According to the impugned Annexure A-3 enquiry report, the aforesaid article of charge has been proved against the applicant during the enquiry. While coming to the said conclusion, the enquiry officer considered the explanation given by the applicant in writing that Smt. Usha is his wife and two daughters, namely, Ms. Savita aged 18 years and Ms. Monika aged 6 years were born in that wedlock. Further, his submission was that he lives with Smt. Urmila and he has two children from her, namely, Ms. Monika, daughter 11 years and son Master Twinkle, 9 years. The Enquiry Officer has also taken into consideration all other material facts including the fact that the applicant has nominated Urmila as his wife and Monika and Twinkle as children in all the nomination forms such as death-cum-Retirement form, First hand information report (i.e. at the time of joining at SRHC Hospital, Narela, Delhi, nomination form for insurance, form No.3 i.e. details of family members), nomination form of GPF. The concluding part of the said report is as under:
After examining & evaluating the list of documents on the basis of which articles of charges are framed against Sh. Jung Bahadur, Driver and keeping in view all the facts which came into light while conducting inquiry and on the basis of nomination forms in which sh. Jung Bahadur, Driver nominated Smt. Urmila, as wife and further his acceptance of having his two children from Smt. Urmila namely Savita as daughter and Twinkle as son, in the light of these facts, it is clear the Sh. Jung Bahadur, Driver has acted with Smt. Urmila in such a manner a common man deals with his wife.
5. The disciplinary authority after considering the aforesaid findings of the enquiry officer and the representation of the applicant on the enquiry report came to the conclusion that applicant was guilty of the charges leveled against him and he has violated Rule 3 (iii) of CCS (Conduct) Rules, 1964 and he is liable to be punished by major penalties specified under Rule 11 of CCS (CCA) Rules, 1965. Accordingly, the disciplinary authority has imposed the penalty of dismissal from service upon him vide the impugned Annexure A-1 order dated 1.6.2007. The appellate authority has considered the appeal made by the applicant against the disciplinary authoritys order in the light of Rule 21 of CCS (Conduct) Rules, 1964 which reads as under:
(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-
Such marriage is permissible under the personal law applicable to such Government servant and the other party to the marriage; and There are other grounds for so doing.
(3) A Government servant who has married or marries a person other than of Indian nationality shall forthwith intimate the fact to the Government.
The appellate authority has held that the applicants case falls under Rule 21 (2) above and being a self-confessed Jat he is governed by the provisions of Hindu Marriage Act, 1955. Therefore, he cannot claim any protection of any personal law for seeking exemption from the stipulation of Rule 21 (2) above. The appellate authority has also considered the fact that applicant himself has admitted in the appeal that he had entered into a second marriage since he did not have a son from his first wife. Accordingly, the aforesaid appeal was rejected and the order of dismissal passed by the appellate order was upheld.
6. The aforesaid impugned orders have been challenged in this Original Application on the ground that he has never contracted a second marriage. He has further submitted that since the allegation against him is that he has contracted a second marriage it has to be proved in accordance with the rules. In this regard, the learned Counsel for the Applicant Shri Ajesh Luthra has relied upon the judgment of Apex Court in Surjit Kaur Vs. Garja Singh and others, AIR 1994 SC 135 wherein it has been held as under:
13. Reliance placed on Charan Singh's case (AIR 1961 Punjab 301) (FB) (supra) is not correct because that will apply only if the widow were to marry the brother of the husband. But, here Gulaba Singh is a stranger. As rightly contended by the respondent, mere living as husband and wife does not. at any rate, confer the status of wife and husband. In B.S. Lokhande's case (AIR 1965 SC 1564) (supra) it was laid down that the bare fact that the man and woman living as husband and wife does not at any rate, normally give them the status of husband and wife even though they may hold themselves out before the society as husband and wife and the society treats them as such. The following extract is useful for this purpose (at p.1565 of AIR) :
"Prima facie, the expression 'whoever......... marries' must mean 'whoever....... marries validly' or 'whoever....... marries and whose marriage is a valid one'. If the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises. If the marriage is not a valid marriage, it is no marriage in the eye of law. The bare fact of a man and a woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife."
7. The learned counsel for the Applicant has also argued that in order to prove the contract of marriage the essential ingredients of the marriage have to be proved in the enquiry. In this regard, he has relied upon the judgment of the Apex Court in Kanwal Ram and another Vs. Himachal Pradesh Administration, AIR 1966 (SC) 614 wherein it has been held as under:
7. The learned Judicial Commissioner, however, thought that apart from the evidence about the marriage ceremonies earlier mentioned there was other evidence which would prove the second marriage He first referred to a statement by the appellant Kanwal Ram that he had sexual relationship with Kubja. We are entirely unable to agree that this, even if true, would at all prove his marriage with Kubja. Then the learned Judicial Commissioner relied on a statement filed by Kubja, Hira Nand and Hiroo in answer to an application for restitution of conjugal rights filed by Sadh Ram against Kubja and others, in which it was stated that Kubja married Kanwal Ram after her marriage with Sadh Ram had been dissolved. Now the statement admitting the second marriage by these persons is certainly not evidence of the marriage so far as Kanwal Ram and Seesia are concerned; they did not make it. Nor do we think, it is evidence of the marriage even as against Kubja. First, treated as an admission, the entire document has to be read as a whole and that would prove the dissolution of the first marriage of Kubja which would make the second marriage innocent. Secondly, it is clear that in law such admission is not evidence of the fact of the second marriage having taken place. In a bigamy case, the second marriage as a fact, that is to say, the ceremonies constituting it, must be proved: Empress v. Pitambur Singh, ILR 5 Cal 566 (FB), Empress of India v. Kallu, ILR 5 All 233, Archbold, Criminal Pleading Evidence and Practice (35th Ed.) Art. 3796. In Kallu's case, ILR 5 All 233 and in Morris v. Miller, (1767) 4 Burr 2057 : 98 ER 73, it has been held that admission of marriage by the accused is not evidence of it for the purpose of proving marriage in an adultery or bigamy case: see also Archbold, Criminal Pleading Evidence and Practice (35th Ed.) Art 3781. We are unable, therefore, to think that the written statement of Kubja affords any assistance towards proving her marriage with Kanwal Ram.
8. The other contention of the learned counsel was that Smt. Usha herself has withdrawn her complaint against the applicant vide her Annexure A-5 letter dated 17.5.2002. In this regard, he has relied upon the following three judgments passed by the different High Courts. The relevant parts of the same are as under:-
(1) Rohit Kumar Bhujel vs. Union of India and others, MANU/GH/0258/2009, the relevant part of the judgment is as under:
14. Rule 21 of the CCS (Conduct) Rules, 1964, as such does not contemplate a prior permission. The permission may be prior or it may be also ex-post factor. Obviously, the discretion is left on the Government either to give permission or refuse it, on evaluation of the fact situation as indicated in Clause (a) and (b) of Rule 21 of the CCS (Conduct) Rules, 1964. It is the Government alone who has to, in the facts and circumstances of the case, either permit or refuse the second marriage to the petitioner. The rule does not indicate such permission must always be prior permission as has been held by the disciplinary authority. However, it cannot be lost sight of that the entire provision is included in the Rule in order to establish discipline and control in the establishment of the Government institutions as well as to maintain peace and harmony in the family of the employees in the society.
15. Thus keeping in view the entire gamut of affairs leading to Inquiry and punishment awarded to the petitioner, I am of the considered view that the punishment of dismissal for contracting second marriage, in the facts and circumstances of this case is an excessive punishment, therefore, the same is required to be set aside. Accordingly, I set aside the impugned order of removal of the petitioner from service and leave the question of imposing lighter punishment to the disciplinary authority. The disciplinary authority will be at liberty to pass any order of punishment except dismissal or removal from service, after taking into consideration of the entire facts and circumstances of the case. (2) S.Nagalingm vs. Sivagami, (2001) 7 SCC 487, the relevant part of the judgment is as under:
10. It is undoubtedly, true that the second marriage should be proved to be a valid marriage according to the personal law of the parties, though such second marriage is void under Section 17 of the Hindu Marriage Act having been performed when the earlier marriage is subsisting. The validity of the second marriage is to be proved by the prosecution by satisfactory evidence.
11. In Kanwal Ram v. H. P. Administration, AIR 1966 SC 614, (1996 CriLJ 472) this Court held that in a bigamy case, the second marriage is to be proved and the essential ceremony required for a valid marriage should have been performed. It was held that mere admission on the part of the accused may not be sufficient. (3) Pancham Giri vs. State of U.P. and others, MANU/UP/0165/2010, the relevant part of the judgment is as under:
17. In the decision of the Guwahati High Court referred to herein above the second marriage was admitted but it was held that the second marriage had got nothing to do with the official position or the discharge of official duties of a person. The Court further came to the conclusion that the findings of bigamy as defined under Sections 494 and 495 I.P.C. has been made a compoundable offence invoking Section 320 Cr. P.C. In such circumstances where the criminal law treats different offences on different footing making such an offence compoundable, the Court came to the conclusion that it would be too harsh to dismiss a person from service. The award of dismissal was set aside with a direction to award some lesser punishment leaving it to the authority to consider the proportionality thereof. (4) Amal Kumar Baruah vs. State of Assam and others, MANU/GH/0075/2006, the relevant part of the judgment is as under:
10. 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 b Section 494 of the Indian Penal 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 compoundable 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 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 Assam Services (Discipline and Appeal) Rules, 1964 seven different shades of punishment starting with censure and ending with dismissal from service is contemplated. 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 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 virtually withdrawn her complaint, 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 dismissal has to be construed by the court to be disproportionate.
11. I, therefore, interfere with the punishment imposed and as the same had been so imposed without due consideration of the relevant facts and circumstances as pointed out in the present order, am of the view that the authority should be directed to reconsider what should be the correct measure of punishment to be imposed on the petitioner. Such reconsideration will be done by the authority within a period of 45 days from the date of receipt of a certified copy of this Order and if on such reconsideration any other punishment is imposed on the petitioner which may have the effect of his reinstatement in service, I deem it appropriate to leave it to the authority to make appropriate orders for award of such consequential benefits as may be found to be due to the petitioner.
9. His other contention was that the IO was not examined the important witnesses during the departmental proceedings. In this regard, the learned counsel has relied upon the judgment of the High Court of Jharkhand at Ranchi in The Manager of Bokaro Steel Plant a Unit of Steel Authority of India Ltd. vs. The Presiding Officer and Alamdar Khan, MANU/JH/0963/2009 wherein it has been held as under:
9. In the present case admittedly, neither Anwari Khatoon nor any of her children or any of her parent or relatives nor Ajmeri Khatoon have been examined on behalf of the Management to establish the charge against the concerned workman and therefore, in my view the Presiding Officer has rightly held that the Management failed to establish the charge against the concerned workman and accordingly, set side the order of dismissal of the workman from service passed by the Management and directed to reinstate him with full back wages and other benefits. I do not find any Diversity or illegality in the impugned Award.
10. Respondents have filed their reply refuting the contentions raised by the applicant. They have stated that it was proved during the departmental enquiry that the applicant was living with Smt. Urmila in such a way that a common man was living with his wife. They have also reiterated the fact that applicant has recognized Smt. Urmila as his wife as he has shown her name in all his nomination forms. They have also submitted that the applicants appeal was duly considered and appellate authority has rejected the same as the applicant has admitted that he has contracted the second marriage in accordance with the customs of the Jat community. They have also stated that the appellate authority has applied its mind and found that the applicant has given varied testimonies from time to time. However, undisputed fact considered by the appellate authority is that applicant has been cohabiting with Smt. Urmila and two children were born out of their relation while Smt. Usha his first wedded wife was alive.
11. We have heard the learned counsel for the parties. It has been proved beyond doubt that the applicant was living with Smt. Urmila as his wife and he had two children in his relationship with her. The contention of the counsel for applicant is that the allegation that he has contracted a second marriage has not been proved in a court of law has no validity in the present case. The applicant initially tried to argue that he has not entered into a second marriage. According to the written submissions submitted by the Applicant during the enquiry was that the charge against him was false and vexatious as he never entered into a second marriage as alleged by his wife and she wanted to harass him. According to him, his first wife was an unscrupulous and cruel lady who deserted him after four years of their marriage and she has returned after 13 years only to harass him with ulterior motive. He has also tried to say that the names of nominees given for the benefit under the GPF, Insurance scheme and gratuity have not been given by him and they were at best be considered as a typographical mistakes. However, in the Annexure A-14 appeal he has admitted that he had a second marriage while his first wife was alive. His explanation for the same was that as per his family customs, he was required to have at least one son as legal heir who is to carry out the name of his family after his death and also to inherit the ancestral property and for that purpose his first wife herself arranged for his second marriage. According to the proviso to sub-Rule 21 (2) of the CCS (Conduct) Rules, 1964, a government servant can be permitted to enter into, or contract, a marriage with any other person while his/her spouse is living only such marriage is permissible under the Personal Law applicable to such Government servant and other party to the marriage. It is not the case of the applicant that the personal law applicable to him permits to him to have a second marriage. What he says is that according to his family customs he is required to have at least one male child and therefore he has entered into the second marriage. The Disciplinary Authority has considered his aforesaid submissions and held that he being self-confessed Jat is governed by Hindu Marriage Act, 1955 and he is not qualified in claiming the protection of any personal law for seeking exemption from the stipulations of the aforesaid rules.
12. In view of the aforesaid position, we do not find any merit in this Original Application. For the same reasons stated above, we also do not find relevance for the judgments relied upon by the learned counsel for the applicant. Resultantly, this OA is dismissed. Consequently, the Miscellaneous Application for condonation of delay in filing this OA needs no consideration. There shall be no order as to costs.
( Dr. A.K. Mishra ) ( George Paracken )
Member (A) Member (J)
sd