Calcutta High Court (Appellete Side)
Pradip Kumar Bal vs Indian Oil Corporation Ltd. & Ors on 31 July, 2019
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT :
Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Saugata Bhattacharyya
C.A.N. 8249 of 2010
with
C.A.N. 7189 of 2015
in
FMA 1084 of 2008
Pradip Kumar Bal
Vs.
Indian Oil Corporation Ltd. & Ors.
For the appellant/applicant : Mr. Amal Baran Chatterjee, Sr. Adv.,
Mr. Mukteswar Maity, Adv.
For the respondents : Mr. Arijit Choudhury, Sr. Adv.,
Mr. N.K. Mehta, Adv., Mr. P. K. Bhaumick, Adv.
Heard on: June 11, 2019 Judgment on: July 31, 2019 DIPANKAR DATTA, J.:-
1. FMA 1084 of 2008 (earlier MAT 878 of 2001) is an intra-court writ appeal, presented on March 16, 2001. It is directed against a judgment and order of dismissal of the appellant's writ petition [W.P. 514(W) of 2001). C.A.N. 8249 of 2010 and C.A.N. 7189 of 2015 are interlocutory applications filed in such appeal by the appellant. These two applications were listed for consideration before us prior to the summer vacation. Having regard to the age of the appeal, we had directed it to be posted for hearing immediately after reopening. The parties to the 2 appeal have been heard on the merits of the appeal. We now venture to decide it finally, together with the interlocutory applications.
2. The pleaded case of the appellant is this. At the material time, when the appellant was an employee of the Indian Oil Corporation Limited (hereafter the Corporation), the Corporation had proceeded against him departmentally. A notice dated March 30, 1988 was issued whereby the Corporation sought for an explanation from him as to why he had contracted a second marriage with Smt. Pratima Nayak (hereafter Pratima) on April 22, 1987 during the subsistence of his first marriage with Smt. Jayanti Rani Maity (Bal) (hereafter Jayanti), without obtaining the permission of the Corporation and even without intimating it about such marriage. According to the Corporation, such an act of the appellant was a misconduct within the meaning of paragraph 19(41) of the Certified Standing Orders applicable to employees of the Corporation (hereafter the standing orders). The reply of the appellant to such notice is not on record; however, it is evident that he had challenged such notice in a writ petition [C.O. 7069 (W) of 1988] before this Court. A learned Judge by an order dated December 19, 1988 disposed of the writ petition with a direction upon the respondents to consider the grievance of the appellant as raised therein, upon affording an opportunity of hearing and by passing a reasoned order. The respondents were specifically directed to take into account that the marriage between the appellant and Jayanti came within the prohibited degree in terms of the Hindu Marriage Act, 1955 3 and the Special Marriage Act, 1954. While granting the appellant liberty to make an effective and detailed representation in support of the contentions raised by him in the writ petition, the respondents were restrained from giving effect to any final order of punishment for a week from date of service of such order upon the appellant. He thereafter faced an enquiry conducted by an officer appointed by the Corporation for such purpose. A report dated July 20, 1990 was submitted by the enquiry officer. He held the appellant guilty of the charge of misconduct levelled against him. Considering the report of enquiry, the disciplinary authority of the appellant dismissed him from service by an order dated November 7, 1990. The enquiry report was forwarded to him along with the order of dismissal. The order of dismissal dated November 7, 1990 was challenged by the appellant by presenting a fresh writ petition [C.O. 14976 (W) of 1990]. Such writ petition was dismissed by another learned Judge by a judgment and order dated January 25, 1991. Such judgment and order was carried in an intra-court appeal by the appellant (FMA 464 of 1992). By a judgment and order dated January 10, 1997, a coordinate bench dismissed the appeal. The lis between the parties, however, took a different turn in the wake of an event in which the Corporation had no role to play. Jayanti had lodged a criminal complaint against the appellant, accusing him of bigamy. The appellant stood trial before the Sub-divisional Magistrate. By an order dated March 16, 1993, the magistrate acquitted the appellant bearing in mind the evidence of Jayanti that the appellant was the son of her father's sister (pishima). The marriage, it appeared to the magistrate, to be 4 within the degree of prohibited relationship; hence, he held the marriage to be void ab initio. In the opinion of the magistrate, a valid marriage was a pre-condition to drive home the charge under section 494 of the Indian Penal Code which was wanting in the case before him. The submission on behalf of Jayanti in course of arguments that in pursuance of a local custom permitting marriage between cousins that her marriage was solemnised with the appellant, was not accepted on the ground that Jayanti in her evidence had not so deposed. Resting on such order of acquittal recorded in his favour, the appellant had approached the corporation with a representation dated October 9, 1998 to revoke the order of dismissal. Such representation not having been considered, the appellant initiated the third round of writ litigation [W.P. 16764(W) of 1999] before this Court. By an order dated March 18, 2000, a learned Judge of this Court disposed of the writ petition with a direction upon the relevant respondent authority to consider the said representation in accordance with law and to pass a speaking order, in the event the prayer of the appellant were refused.
The learned Judge observed that the punishment of dismissal having been upheld by this Court in an appeal, it was not open for His Lordship to interfere with such dismissal but in the changed circumstances, the appellant's representation could be considered. Having regard to the contents of the first paragraph of the order, it is clear that by 'changed circumstances' was meant the order of acquittal that had seen the light of the day subsequent to the appellant's dismissal from service. In compliance with the order dated May 9, 5 2000, the corporation extended an opportunity of hearing to the appellant on May 17, 2000. The representation stood rejected for the reasons recorded in an order dated June 10, 2000. One of the points based on which the appellant's representation was rejected appears to be that there was no change in the material circumstances of the case, since the order of dismissal was approved by the Division Bench by its order dated January 1997. The appellant was acquitted of the charge of bigamy by the order dated March 16, 1993, i.e., at a point of time when this Court was in seisin of the intra-court appeal (FMA 464 of 1992); therefore, acquittal by the criminal court on March 16, 1993 was not a development subsequent to the order dated January 10, 1997. The said order also referred to an application dated May 13, 1997 filed by the appellant seeking review of the judgment and order dated January 10, 1997 and its dismissal by an order dated August 6, 1998. The review was sought for, inter alia, on the ground that the criminal court had acquitted the appellant of the charge of bigamy. The authority concerned was of the view that no new point had been raised based on any development subsequent to the order passed by the Division Bench warranting revocation of the order of dismissal. Challenging the order of rejection of the representation dated June 10, 2000 as well as the order of dismissal dated November 20, 1990, the appellant initiated another round of litigation by presenting the writ petition, out of which this appeal has arisen. It was dismissed by a learned judge of this Court by a judgment and order dated January 17, 2001, the legality and or 6 correctness whereof is the subject matter of challenge in this intra- court writ appeal.
3. Till the appeal was finally heard by us on June 11, 2019, more than 18 years have passed since it was preferred. During its pendency and as noticed above, the appellant filed two interlocutory applications. In CAN 8249 of 2010 dated September 8, 2010, a prayer was made for analogous hearing of this intra-court writ appeal together with FMA 130 of 2008 and MAT 3171 of 2002. In such application, the appellant referred to presentation of another writ petition before this Court [WP 19373 (W) of 2006] and its dismissal being carried in a further appeal. In CAN 7985 of 2015, a prayer was made for permission to the appellant to rely on additional evidence.
4. Mr. Chatterjee, learned senior advocate representing the appellant contended that the learned Judge failed to exercise jurisdiction and erred in law completely in dismissing the writ petition without considering the facts and circumstances of the case, the materials on record vis-a-vis the law applicable thereto. Placing heavy reliance on the order of the magistrate dated March 16, 1993, he sought to impress us that the marriage between the appellant and Jayanti not being a valid marriage in the eye of law, being prohibited by section 5 of the Hindu Marriage Act, 1955 (hereafter the 1955 Act), there was no bar for the appellant to enter into a marriage with Pratima; and, a fortiori, the appellant was under no legal obligation either to seek permission from the corporation or to inform it prior to marrying Pratima. Next, Mr. 7 Chatterjee invited our attention to page 90 of the paper book, being a purported judgment dated December 8, 1996 in Case No.1 under Section 4 of the Special Marriage Act, 1954 (hereafter the 1954 Act) rendered by the marriage officer. Upon notice of intended marriage between the appellant and Jayanti being issued, the appellant's mother had put in an objection. Upon hearing the parties, which included the appellant and Jayanti, the said officer held that she was the appellant's mother's younger's brother's daughter and their relationship being within the degree of prohibited relationship, it infringed section 4D of the 1954 Act; hence, it was ordered that solemnisation of the marriage between the appellant and Jayanti is barred and the matter is treated as closed. Referring to such order of the marriage officer, it was the further contention of Mr. Chatterjee that there was a pronouncement of a competent authority as far back as in 1986 and the finding returned by the enquiry officer holding the charges levelled against the appellant being contrary to the aforesaid decision of the marriage officer, the same is perverse; accordingly, such report of the enquiry officer ought not to have been the foundation for dismissal of the appellant from service of the corporation. Finally, while placing heavy reliance on the decisions of the Hon'ble Supreme Court reported in 1994 Supp (3) SCC 674 (Sulekh Chand and Salek Chand vs. Commissioner of Police) and (1999) 3 SCC 679 (Capt. M. Paul Anthony vs. Bharat Gold Mines Limited), it was contended that the decision of the criminal court ought to have weighed in the mind of the disciplinary authority and since the so-called marriage between the appellant and Jayanti was a nullity, the 8 appellant ought to have been reinstated in service upon revocation of the order of dismissal.
5. While concluding his arguments, Mr. Chatterjee appealed to us to take a sympathetic view having regard to the appellant's status. According to him, the appellant joined service as a messenger and married Pratima only after registration of his marriage with Jayanti under the 1954 Act did not materialise. Having proceeded on the premise that his marriage with Jayanti was void, the appellant by marrying Pratima without informing the corporation may not have indulged in such conduct which could be labelled as misconduct warranting the harshest of punishment. He, thus, prayed for interference in the exercise of our appellate powers to set things right and to direct the corporation to reinstate the appellant in service for serving the remainder period of service prior to reaching 60 years of age.
6. Mr. Chowdhury, learned senior advocate appearing for the corporation submitted that the appellant was not entitled to any relief. Referring to the judgment and order of the Division Bench dated January 10, 1997, it was contended that the same having attained finality, the appellant without challenging the same before the Hon'ble Supreme Court could not have renewed his prayer to set aside the order of dismissal dated March 7, 1990 in the subsequent representation dated October 9, 1998 and the writ petition, which followed such representation. Mr. Chowdhury further brought to our notice from the report of enquiry submitted in course of the disciplinary proceedings that the appellant 9 faced, that the appellant and Jayanti after marriage were residing in the same mess as husband and wife and a child was born in their wedlock. Though their marriage was solemnised in a temple, an affidavit jointly sworn by the appellant and Jayanti was on record that they had married on their own. Not only that, there was evidence of the neighbours of the appellant which suggests the public perception that the appellant and Jayanti were spouses. Our attention was invited by Mr. Chowdhury to the standing orders in support of his contention that the appellant by marrying Pratima without intimating the corporation had committed a misconduct within the meaning of paragraph 19(41) thereof. Mr. Chowdhury further submitted that the appellant himself had instituted a suit in the appropriate civil court seeking a declaration that his marriage with Jayanti was a nullity but there was no disclosure in any of the pleadings regarding the outcome of the suit. Our attention was also drawn to certain passages in the decision of the Division Bench dated January 10, 1997 to convince us that the controversy had received the full and complete attention of the learned Judges whereupon dismissal of the appeal was ordered. Finally, it was submitted that although apparently a marriage between two consenting adults might fall foul of the provisions contained in either the 1955 Act or the 1954 Act, but there is no bar for such adults (even after a marriage that is prohibited in law) to continue to live together as husband and wife and it is upon the competent court declaring the marriage as void that consequences could arise adverse to the interest of one or both the parties to such marriage. In the present case, despite 10 the appellant having approached the civil court, there has been no declaration made by it that the marriage between the appellant and Jayanti was void; therefore, the finding of the criminal court where the standard of proof of recording a conviction is different from what is applicable to disciplinary proceedings, would not be binding on the corporation as the employer of the appellant. He, accordingly, prayed for the dismissal of the appeal.
7. Mr. Chatterjee was asked to enlighten us on the outcome of the suit that the appellant had instituted. Upon seeking instructions from his junior, Mr. Maity, learned advocate, Mr. Chatterjee informed us that the appellant did not pursue the suit.
8. Having heard the learned senior advocates for the parties and upon threadbare examination of the facts and circumstances of the case that have emerged before us, we have no hesitation to hold that the appellant has not been wronged; consequently, he is not entitled to any relief.
9. We begin with the appellant's challenge to the order of dismissal dated March 7, 1990. The judgment and order dated January 10, 1997 of the Division Bench upholding such order, operates as res judicata; hence question of entering into the merits of the order of dismissal does not arise.
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10. Let us now examine whether the appellant's representation dated October 9, 1998 was erroneously rejected by the corporation on June 10, 2000.
11. A particular disclosure in the order dated June 10, 2000 of rejection of the appellant's representation dated October 9, 1998 in compliance with the order dated March 18, 2000 passed in W.P. 16764(W) of 1999 coupled with reference to 'changed circumstances' in such order dated March 18, 2000 encouraged us to plunge into old records, which we had requisitioned from the registry. Such records revealed that the appellant had applied for review (CAN 3669 of 1997) of the judgment and order dated January 10, 1997 on May 15, 1997. One of the grounds for review was that the Division Bench while dismissing the appellant's earlier writ appeal (FMA 464 of 1992) did not consider the effect of acquittal recorded by the magistrate by his order dated March 16, 1993. Such application was considered by the Division Bench and summarily rejected by its order dated August 6, 1998, holding that no ground for review had been made out.
12. Dismissal of the aforesaid appeal and the application for review not having been challenged by the appellant before the Hon'ble Supreme Court, the orders attained finality. The consequence was that the appellant's dismissal from service ordered by the Corporation obtained the stamp of approval from this Court.
13. Be that as it may, having noticed the records of CAN 3669 of 1997, we looked into the records of W.P. 16764(W) of 1999. We regret to record 12 that in such writ petition, the appellant suppressed the material fact of the aforesaid point having been raised by him in the review application and its subsequent dismissal on August 6, 1998. An impression was sought to be created in the mind of the learned Judge, who had the occasion to dispose of W.P. 16764(W) of 1999, that the acquittal was a subsequent incident and in such 'changed circumstances', the corporation ought to look into his representation and pass a speaking order. We have no hesitation to hold that the appellant did not approach the writ court with clean hands and his conduct borders on fraud. Without the order of disposal of W.P. 16764(W) of 1999, the order dated June 10, 2000 would not have seen the light of the day. Since the said order dated June 10, 2000 resulted in accrual of a fresh cause of action for the appellant to move the writ court and he did so by presenting W.P. 514(W) of 2001 but such order was preceded by a writ petition suffering from the vice of suppression of a material fact and was not instituted bona fide, and the learned Judge was misled by the appellant into believing that the order of acquittal had not been considered by any bench of this Court before, we hold that the appellant cannot reap any benefit of consideration of his prayer for reinstatement in service as a consequence of the order dated March 18, 2000. The issue as to whether the appellant was dismissed from service in accordance with law or not stood finally decided by the Division Bench while dismissing FMA 464 of 1992 and CAN 3669 of 1997, on January 10, 1997 and August 6, 1998, respectively, and the issue must be allowed to rest.
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14. Also, there being no material before us as to the outcome of the suit, except the oral submission from the bar made by Mr. Chatterjee, we undertook necessary enquiry and have come to learn that the appellant's suit (T.S. No.125 of 1987) stands dismissed for default by an order dated February 26, 2003 whereupon the records of such suit have been destroyed in terms of the provisions of the Civil Rules and Orders on August 31, 2005. Information as above has been provided to us by our registry, upon obtaining information from the registry of the trial court, on our request.
15. We place it on record that after being seized of such information we had put across the same to Mr. Chatterjee, of course while he was appearing before us to argue a different matter. It was with the intention to ascertain whether he sought to advance further argument, should the appeal be brought back on the list once again. Mr. Chatterjee, however, urged us to decide the appeal on the basis of what he had argued and whatever materials we had gathered.
16. Notwithstanding what we have noticed and held above, one broad issue that arises for consideration is whether rejection of the appellant's representation dated October 9, 1998, made pursuant to the order dated March 18, 2000 passed by this court, was justified. Having perused the order of rejection dated June 10, 2000, we find no legal infirmities therein. The relevant officer of the corporation, who considered and rejected the appellant's representation, discussed all the issues in considerable detail and returned findings which have co- 14 relation with the materials before him. However, having regard to the trend of law that is developing that an order of concurrence ought to demonstrate application of mind, we proceed to assign below our own reasons as to why the appellant cannot derive any advantage from section 5(iv) read with section 11 of the 1955 Act and must fail in his contention that his marriage with Jayanti being void ab initio, he did not commit misconduct in marrying Pratima.
17. Section 5 of the 1955 Act lays down the conditions, which are required to be fulfilled for solemnization of a valid marriage between any two Hindus. Clause (iv) of section 5 makes it a condition precedent that the two Hindus, whose marriage is proposed to be solemnized, are not within the degrees of prohibited relationship. There is, however, a rider; and it is clinching. We are of the opinion that even though the parties may be within the degrees of prohibited relationship, their marriage, if solemnized, would not foul clause (iv) if such marriage were permitted by the custom or usage governing the parties to the marriage. Section 11 of the 1955 Act ordains that a marriage shall be null and void, if it contravenes any of the conditions specified in clause (i), (iv) and (v) of section 5. A marriage contravening any of such conditions, on a petition presented by either party to such marriage against the other party, can be declared by a decree to be a nullity. A conjoint reading of sections 5
(iv) and 11 makes the position clear that all marriages between two Hindus, who are within the degrees of prohibited relationship, may not be void ab initio; a marriage between two Hindus who are within the 15 degrees of prohibited relationship would be saved from the rigours of section 11 of the 1955 Act, if such marriage were permitted by the custom or usage governing the parties to the marriage. We are conscious of section 4 of the 1955 Act but having regard to the rider in section 5 (iv), the intention of the legislature that a marriage between two Hindus within the degrees of prohibited relationship, if the marriage between the two is permitted by the custom or usage governing each of them, may not be void ab initio, cannot be doubted. Whether the custom or usage permits a marriage between two Hindus who are within the degrees of prohibited relationship, is a question of fact which needs adjudication by a civil court. Even when the Magistrate acquitted the appellant of the charge of bigamy, we find a point urged on behalf of Jayanti that the local custom permitted the marriage between her and the appellant. It is altogether irrelevant for the present purpose that the magistrate did not accept the point because the same was neither alleged in the complaint giving rise to the F.I.R nor was it in the evidence of Jayanti in course of trial. We cannot, however, gloss over the conduct of the appellant. He must have been aware of the stand that Jayanti took in course of arguments and did not regard the marriage as void or one that could be ignored as not existing in law at all. As and when a question arises as to whether in a given case the rider in section 5 (iv) is attracted or not, a party seeking declaration that the marriage is a nullity could avail of section 11 which permits a formal declaration to be made on the presentation of a petition. In fact, the appellant did apply before the competent civil court 16 for such a formal declaration. Such application opened up an avenue for Jayanti to plead that the marriage between her and the appellant should not be declared a nullity because of the rider in clause (iv) of section 5. On facts, we hold that the marriage between the appellant and Jayanti did not bear an indelible mark of invalidity right from the day such marriage was solemnized and the appellant was appropriately advised to approach the civil court which he did. However, the appellant having instituted the suit prior to his dismissal from service, he could have pursued it to its logical end and if he were successful in obtaining a decree of nullity, he could have applied before the corporation to reverse its decision to dismiss him. Not having pursued the suit, this course is also not open to him.
18. We are also of the opinion that the corporation was not under any compulsion to act on the basis of the decision of the marriage officer under the 1954 Act or the order of acquittal passed by the Magistrate. Both the appellant and Jayanti being Hindus and the appellant having taking recourse to section 11 of the 1955 Act for obtaining a decree that could have saved him from being dismissed from service, and he having abandoned the suit and allowed it to be dismissed for default, in our view, he has no legal peg for a justiciable cause to hang on. This is apart from what we have noticed of the conduct of the appellant after marrying Jayanti. An affidavit was affirmed by him accepting Jayanti as his wife and they started living together as husband and wife. An issue was also born in their wedlock upon consummation of marriage. 17
18. These are sufficient to draw presumption that the appellant and Jayanti having married each other lived as husband-wife until such time the appellant married Pratima. The validity of the marriage between Jayanti and the appellant was never in question.
20. In so far as the corporation is concerned, they also believed that there was a valid marriage between the appellant and Jayanti and accordingly, charged the appellant with violation of paragraph 19(41) of the standing orders and such charge was proved at the enquiry.
21. The appellant has been unable to show us any legal infirmity in the action taken against him. The appeal being completely devoid of merit, the same stands dismissed together with the applications. There shall be no order as to costs.
(SAUGATA BHATTACHARYYA, J.) (DIPANKAR DATTA, J.)