Central Administrative Tribunal - Kolkata
Iftiquar Ali Ahmed vs Police-I Division on 26 February, 2024
1 0.a. 351/01260/2022 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA (CIRCUIT AT PORT BLAIR) No. O.A. 351/01260/2022 Heard on: 08.02.2024 _ Date of order: 9 6. 97. 2024 Present : Hon'ble Mr. Jayesh V. Bhairavia, Judicial Member Hon'ble Mr. Suchitto Kumar Das, Administrative Member Iftiquar Ali Ahmed, Son of late T.H. Yousuf, Resident of Aberdeen Bazaar, Police Station: Aberdeen, Port Blair, District: South Andaman, Andaman and Nicobar Islands, Pin code: 744101, .... Applicant - VERSUS- 1. Union of India in the Ministry of Home Affairs, Service through the Secretary, Ministry of Home Affairs, Room No. 113, North Block, New Delhi, Pin code: 110001. 2. The Lieutenant Governor, Andaman and Nicobar Islands, Being the Appellate Authority under the A&N Police Manual 1963 Office of the Lieutenant Governor, Raj Niwas, Port Blair, Pin code: 744101 3. The Director General of Police, Andaman and Nicobar Police, Being the Disciplinary Authority under the A&N Police Manual, Police Headquarters, Port Blair, Pin code 744101. .. Respondents Forthe Applicant: Mr. D.C. Kabir, Counsel Mr. A. Prasad, Counsel 2 0.a. 351/01260/2022 For the Respondents: Dr. D. Chowdhury, Counsel ORDER
Per Mr. Jayesh V. Bhairavia, Judicial Member:
The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 seeking following relief:-
"a) .Quashing and/or setting aside the impugned Order no. 167 dated 13.06.2022 passed by the Appellate Authority under the A&N Police Manual, thereby inter alia dismissing the appeal of the applicant filed under Rule 9.16 of the A&N Police Manual and uphelding the Order passed by the Disciplinary Authority vide Order Book No. 1626 dated 10.05.2021 thereby dismissing the applicant from service, and directing the applicant to be reinstated into service forthwith with effect from the date of dismissal and payment of all dues, salary, benefits on and from that date;
b) A direction on the respondent authorities to produce the records of the case before this Hon'ble Tribunal, so that this Hon'ble Tribunal may examine and certify the same and do conscionable justice to the case.
ce) Appropriate Direction(s)/ Order(s) on the basis of the legal provisions mentioned hereinabove.
ad Costs of this application.
I] Any other relief or reliefs be given to the applicant as Your Lordships may deem fit and proper."
2. The facts of the case as narrated by the applicant are stated as under:-
2.1. The applicant while working as Sub Inspector of Police under the Andaman and Nicobar Police force, departmental proceedings under Rule 9.3 of the A&N Police Manual was instituted against him vide Memorandum No. DGP/DE-
01/2020/46 dated 3.2.2020 for the charges of unlawful bigamous marriage on the part of the applicant and same amounts to moral turpitude, grave misconduct and unbecoming of member of a disciplined force, the conduct of the applicant, as such, is in contravention of provisions of Rule 8.26, 8.46 and 8.47 of the A&N Police Manual, 1963 and thus rendering him liable far punishment under Rule 9.3 of the A&N Police Manual, 1963.
2.2. On conclusion of departmental inquiry, the Inquiry Officer in his Inquiry report dated 1.3.2021 recorded his findings that the charges levelled against the y! 3 0.4. 351/01260/2022 . applicant stands established beyond doubt. The JO has submitted his report to the DA. Thereafter, the copy of said Inquiry report dated 01.03.2021 was supplied to the Charged Officer by the D.A. with a direction to submitted his representation, if he so desires. Accordingly, the Charged Officer on receipt of Inquiry report, has filed his reply/representation before the DA.
2.3. Thereafter, considering the Inquiry report, representation of the Charged Officer as well by granting opportunity of hearing to the applicant, the DA had issued a show cause notice dated 27.4.2021 and directed the applicant to submit his written reply, if he so desired. In response to it, the applicant filed his written reply dated 3.5.2021. After going through the reply filed by the applicant as well as material on record including inquiry report, the Disciplinary Authority vide Order Book No. 1626 dated 10.5.2021 (Annexure A/1 refer) held that charges levelled against the applicant stands proved and imposed punishment of "dismissal from service" upon the applicant. The charged officer was also instructed that he is given liberty to prefer an appeal before the Appellate Authority in terms of Rule 9.18 of the A&N Police Manual.
2.4. Being aggrieved with the punishment order, the applicant preferred an appeal before the Appellate Authority on 23.7.2021. Since his appeal remained unanswered, he preferred another application before the Appellate Authority on 15.2.2022. In the meantime, the applicant approached this Tribunal by filing O.A. No. 351/00373/2022 and vide order dated 10.3.2022 this Tribunal directed the respondents to dispose of the appeal within 8 weeks by passing a reasoned and speaking order. (Annexure A/4 refer) 2.5. Subsequently the pending appeal of the applicant was considered by the Appellate Authority and by upholding the order passed by the Disciplinary Authority, the appeal of the applicant was dismissed by the Appellate Authority vide Order No. 167 dated 13.6.2022. The copy of the said order of AA was stated to be received by the applicant on 23.6.2022.
Hence, this O.A. pe 4 0.a. 351/01260/2022
3. Ld. Counsel, Mr. D.C. Kabir with Mr. A. Prasad appears for the applicant and mainly submitted as under:-
3.1. That the applicant has become victim of social circumstances. 3.2. The applicant has been treated in an inequal manner by the respondents since other persons identically situated in the police service have not been penalized.
3.3. In this regard, Ld. Counsel has argued that the main reason behind imposition of major penalty of dismissal from service upon the applicant on the allegation that he had contracted a second marriage during subsistence of an earlier marriage. It is stated that on identical grounds of second marriage, another officer similarly situated being one Sub-Inspector, Ramakrishna was suspended pending disciplinary proceeding and subsequently he was reinstated in service with immediate effect. Though the said Ramkrishna was also facing several criminal proceedings in connection with torture of his wife and ultimately she had committed suicide. However, no action was taken against him nor was any inquiry proceedings carried out against the said police staff, whereas in the case of the applicant, the disciplinary proceeding was instituted and which culminated in major penalty of dismissal from service on the charge of bigamy.
3.4. Further, it is stated that the second marriage of Ramkrishna and its consequences had brought disrepute to the police force, yet he was put back in service and all cases against him appeared to be simply covered up after suicide of his wife. According to the Ld. Counsel, different standards are being adopted for different persons which absolutely violates the applicant's right to equal treatment before law. Thus the order of dismissal from service passed against the applicant is in violation of the principles of equal treatment under Article 14 of the Constitution and same is not sustainable in the eye of law.
3.5. Ld. Counsel would also argue that the factual aspect in regard to the marriage of the applicant with one Shabana Bibi has not been considered proper by the Inquiry Officer, the Disciplinary Authority as well the Appellate Authority.
PL 5 0.a. 351/01260/2022 It is stated that he married Shabana Bibi on 2.1.2011. Thereafter, Talaq was given to her on 9.8.2011. However, she had conceived the child. The applicant remarried her on 30.9.2013. Thereafter, the applicant married another women i.e. Razia Begum on 1.11.2019.
3.6. Further, it is stated that despite the fact that the applicant had already pronounced a triple talaq which was legal at the time i.e. on 9.8.2011, his first wife Shabana Bibi admitted to entrap the applicant into a remarriage. Since the said proposal of remarriage was in violation of the Holy Quran and Islamic principles, the parent and other family members of the applicant did not support the said proposal of remarriage with Shabana Bibi. However, she had pursued the applicant for a remarriage on the ground that her parents and family members had disowned her and she had no means of existence though she was herself a Constable employed in the Andaman & Nicobar Police force.
3.7. It is stated that due to empathy towards said Shabana, the applicant remarried her under Special Marriage Act before the Marriage Officer (ADM), South Andaman. She prepared all the documentation by suppressing all facts of the earlier nikah and talaq pronounced by the applicant.
3.8. It is stated that, when the applicant returned from training, he found that the said Shabana and her family members at parental home refused to allow the applicant to visit them or even to meet the newly born child of their marriage. When he demanded divorce again, however, however, she had asked him not to take hasty steps due to the issue of legitimacy of the child. Only on that ground, the applicant did not proceed for a second divorce, although the marriage and relationship with her for all purposes was over and did not exist.
3.9. It is stated that Shabana Bibi sought to use the so called second marriage which was in existence for the name sake for her personal benefit only. In fact, she was residing separately in her parental house along with minor child and did not return to the applicant to leave as husband and wife ever.
fel 6 o.a. 351/01260/2022 3.10. It is stated that the applicant had repeatedly tried to meet the child but on each occasion, he was refused by said Shabana Bibi. Even she had gone to the extent to deny that the child was born out of their wedlock. Therefore, for all objects and purposes, the so-called remarriage was one of convenience engineered by Ms. Shabana Bibi, mother of the minor child for her own motive and reasons and resultantly, the applicant was kept away from his own family. Thus, Ld. Counsel for the applicant would vociferously argue that the applicant has himself become a victim of social circumstances. 4, | The Ld. Counsel for the applicant also attempted to raise a third ground as to whether the second marriage of the applicant has at all taken place in terms of law both customary and accepted in Indian Civil jurisprudence.
In this regard, it is submitted as under:-
(a) In terms of Mohammedan Law, being the customary law of the applicant, the aspect of re-marriage after divorce is rigidly covered under specific conditions, none of which is satisfied in the instant case.
(b) There are three categories of Muslim marriage in terms of the customary law, namely sahih, fasid and batil marriages. These are based on the concept of fulfillment of mandatory conditions, based on which a marriage can be described as valid, irregular and void ab initio respectively.
(c) As per Mohammedan law, the conditions necessary for remarriage to the same person are that the practice of nikah halala must be observed whereby the divorced wife must first marry another man after the iddat period, consummate that marriage, get a divorce from that man, and only then can she marry her previous husband.
(d) This proposition is engrafted in the Holy Quran itself, whereby Aayat 230 of Sura-e-Baqarah makes it clear that if a husband divorces his wife three times, then it is not lawful for him to remarry her until after she yn 7 0.a. 351/01260/2022 has married another man and then is divorced, and, only then it is permissible for them to reunite.
In support of the aforesaid points, the applicant also placed reliance on the judgment passed by:
(a) Hon'ble Bombay High Court in Sabah Adnan Sami Khan v. Adnan Sami Khan, Family Court Appeal No. 179 of 2009, judgment dated 23.3.2010.
(b) Hon'ble Allahabad High Court in Rahmat Ullah v. State of UP, 1994 G1) DMC
64.
(c) Hon'ble Supreme Court of India in Sameena Begum v. Union of India, WP (Civil) 222, 202, 235, 227 of 2018.
4,1. By referring to the aforesaid, it has been submitted that unless Ms. Shabana Bibi had already married and divorced another person, she cannot have remarried the applicant at all. Even if it is alleged that any remarriage took place on 30.09.2013, the same was a "batil" or "void marriage", and same did not exist in Muslim Personal Law.
4.2, According to the applicant, there was no second marriage at all in the customary law, which in itself is duly recognized under Indian Civil Law, as all principles of customary or Personal Islamic Law are recognized and accepted into Indian Law by way of a Muslim Personal Law (Shariat) Application Act, 1937.
4.3. Ld. Counsel for the applicant emphasized that at the relevant time of matriage of applicant with Razia Begum which falls in the category of Sahih matriage, since he did not have any lawful wife and there was no valid legal marriage with Shabana Bibi in existence at all. It is submitted that the purported remarriage between the applicant and Shabana Bibi on 30.9.2013 was a void marriage under law and it cannot be said that any marriage existed between the applicant and Ms. Shabana Bibi.
Vin 8 0.a. 351/01260/2022 4.4, It is stated that the applicant had married Rajia Begum in the year 2019 and at the relevant time he did not have a spouse living as no valid marriage under law existed.
5. Ld. Counsel for the applicant would also argue that the applicant is also victim of private vindictive disputes between his wife Razia Begum and another person, i.e., one Mr. Roop Lal and said Mr. Roop Lal influenced the respondents to take disciplinary action against the applicant. In this regard, Ld. Counsel further submits that at the behest of a vicious, motivated and vindictive third-party Roopa Lal with a long-standing rivairy against the applicant and his wife Razia Begum, by a tweet which was posted to the Director General of Police on 20.04.2021, said Roop Lal supplied wrong information on twitter, thus instigating the respondent authorities to take disciplinary action against the applicant.
6. In sum, Ld. Counsel for the applicant submits that the applicant has become victim of personal vendetta of a third person and the social circumstances. However, the Disciplinary Authority as well the Appellate Authority did not pay heed to the aforesaid circumstances and imposed grossly disproportionate punishment upon the applicant. He submits that since he has been dismissed from service, his livelihood has been jeopardized.
7. Per contra, the respondents have filed their reply and denied the claim of the applicant herein. By referring to the averments in the reply Dr. D. Chowdhury, Ld. Standing Counsel for the respondents mainly submitted as under:-
7.1. In respect to Charge Memorandum dated 3/2/20 the disciplinary proceeding was instituted against the applicant for the alleged misconduct of unlawful bigamous marriage on the part of the applicant while he was working in the Police Department. The applicant had participated in the departmental "inquiry and submitted his defence. On conclusion of the inquiry, the Inquiry Officer submitted his inquiry report wherein he has recorded that the charges leveled against the applicant stands proved. The applicant was supplied with the copy of the said Inquiry report and on receipt of it he had submitted his representation before the V 9 o.a. 351/01260/2022 Disciplinary Authority. He was also granted opportunity of personal hearing.
Thereafter the Disciplinary Authority by agreeing with the finding of the Inquiry Officer and by following the principles of natural justice came to the conclusion that the charges levelled against the applicant stand proved. Further, by considering the gravity of misconduct of the applicant had imposed punishment of removal from service.
7.2. Ld. Counsel for the applicant submits that the applicant being a Government servant and also being a member of a disciplined force had failed to obtain decree of divorce from the competent Court of Law for dissolution of his marriage with Smt. Shabana Bibi and also did not obtain the prior permission from the competent authority for his second marriage with Smt. Razia Begum on 9.11.2019. It is an irrefutable fact on record that the applicant had married with Smt. Shabana Bibi and their marriage was also duly registered before the Additional District Magistrate, Port Blair under the Special Marriage Act, 1954 in presence of independent witnesses viz. Shri Kausar Amjad and Shri Arif Mohammed and they were also examined in the departmental enquiry held against the applicant as PW-4 and PW-5.
7.3. It is stated that the applicant being a member of a disciplined force, had failed to obtain decree of divorce from the competent court of law for dissolution of his marriage with Smt. Shabana Bibi and also did not obtain prior permission from the competent authority for his marriage with Smt. Razia Begum on 1.11.2019, 7.4. Therefore, the reason assigned by the Disciplinary Authority in arriving to the conclusion that charges levelled against the applicant stands proved and had imposed major penalty, the said decision is based on evidence surfaced during the inquiry. The Appellate Authority has also assigned the reason while upholding the decision of the Disciplinary Authority. It is submitted that the impugned orders are just and proper and, as such, there is no lacunae in the decision making process in respect to the disciplinary proceeding instituted against the applicant herein. Both a 10 0.a. 351/01260/2022 the authorities, the DA and the AA had considered the case of the applicant by following the principles of natural justice as well the provisions of A&N Police Manual, 1963, therefore, the impugned decisions are just and proper and the applicant is not entitled for any relief as prayed for. |
8. The applicant has filed the rejoinder and reiterated the averments as stated in the O.A. Additionally, it is stated that the respondents have not considered the legal issues raised by the applicant and, as such, the respondents once again have not even understood the same and without appreciating the true issues have arbitrarily rejected the expectation of the applicant before the Inquiry Authority, Disciplinary Authority and Appellate Authority.
He reiterated that there was no subsisting marriage, then in that case, the basic element of so-called misconduct do not and cannot exist. 8.1. Further, he reiterated that the respondents have acted vindictively with the applicant since other police officers, namely, Shri Ramkrishna, who had during the existence of first wife had entered into a second marriage but no action has been taken against him whereas the applicant has been chargesheeted and awarded capital punishment of dismissal. In this regard, the applicant has placed reliance on the judgement/order passed by the Hon'ble High Court in the case of one, Smt. Deepika Kishan and submitted that said Mr. Ramkrishna married one Shipra Majumdar and by suppressing it he had again married to one Deepika Kishan. It is stated that the said second wife of Ramkrishna, namely Deepika Kishan had filed several complaints against him before the higher officer of Police force. However, the respondent authorities have not taken action against the said Ramkrishna but the applicant has been chargesheeted as stated hereinabove.
9. In response to the rejoinder filed by the applicant, Ld. Counsel for the respondents denied the submission of differential treatment as alleged by the applicant. In this regard, it is submitted by the respondents that said Sub-Inspector Ramkrishna was placed under suspension on 19.4.2021 and a preliminary inquiry was ordered, but the charges levelled against him was not substantiated. Therefore, on the go il o.a. 351/01260/2022 basis of preliminary inquiry report he was reinstated in service on 6.9.2021. Therefore, the contentions of the applicant are irrelevant and devoid of any merit and thus liable to be dismissed.
10. Ld. Counsel placed reliance on the judgment passed by the Hon'ble High Court of Chattisgarh, Bilaspur in the case of Mehatru Baddhai @ Mehatru Ram Baddhai v. State of Chhattisgarh and ors, and submits that the petitioner/appellant therein was working as Police Constable with the Police Department of Chhattisgarh. Against him disciplinary proceeding instituted in respect to allegations of bigamous marriage in terms of Rule 22 of the Conduct Rules, 1965. The charges leveled against the said petitioner were proved and major penalty of dismissal was imposed upon the petitioner by the Disciplinary Authority. The Writ Petition thereon was dismissed and Writ Appeal was dismissed by the Division Bench of the Hon'ble Chattisgarh High Court in the said Writ Appeal No. 57 of 2020 decided on 21.1.2020.
Ld. Counsel submits that, being aggrieved, the SLP filed by the said petitioner also stated to be dismissed and the Hon'ble Apex Court has affirmed the punishment of dismissal on the applicant. Therefore, in the present case, the applicant is also not entitled for any relief as sought for.
11. Heard the Ld. Counsel for the parties at length and perused the material on record.
12. It emerges from record that while the applicant was working as Sub Inspector (Executive) in A&N Island Police Force, he was served with Memorandum of charges No. DGP/DE-01-2020/46 dated 03.02.2020 along with statement of imputation, list of documents relied upon and the list of witnesses in support of charges levelled against the applicant under Rule 9.3 of the A&N Police Manual, 1963.
The following charge has been alleged under the Charge Memorandum against the applicant which reads as under:-
"ARTICLE-I That SI Iftiquar Ali Ahmed and PC/928 Shabana Bibi marriage was solemnized on 02/01/2011 as per Muslim Rites and Customs. SI Iftiquar Ali Ahmed divorced Smti. Shabana Bibi by pronouncing "Talaq, Talaq, Talaq" on 09/08/2011. Again their re-marriage was registered on 30/09/2013 under the Special Marriage Act, 1954 in the Office of Marriage Officer (ADM), South HM, é 12 0.4. 351/01260/2022 Andaman. In the wedlock Smti. Shabana Bibi gave birth to a female child on 09/02/2015. On 01/11/2019, SI Ifiquar Ali Ahmed illegally married Smti Razia Begum as per the Marriage Certificate issued by Rahmaniya Masjid, Bambooflat without obtaining divorce from his wife Smti Shabana Bibi.
That such an act of unlawful bigamous marriage on the part of SI Iftiquar . Ali Ahmed amounts to moral turpitude, grave misconduct and unbecoming member of disciplined police force, which is in contravention of the mandatory provisions under Rules 8.26, 8.46 & 8.47 of A & N Police Manual, 1963, rendering him liable for punishment under Rule 9.3 of the said Manual."
12.1. In the present case, it is not in dispute that on denial of the charge, departmental inquiry was instituted against the applicant and he had participated in the said inquiry. On conclusion of said departmental inquiry as well on receipt of inquiry report, the applicant had submitted his representation before the Disciplinary Authority. It is also noticed that the Disciplinary Authority had granted an opportunity of personal hearing and had allowed to submit his additional written statement. Thereafter, the DA vide order dated 10.5.2021, by assigning the reasons for agreement with the finding of the Inquiry officer held that the Charged Officer married Smt. Razia Begum without obtaining a decree of divorce from the competent Court of Law. Such conduct of the CO is against the provision of A&N Police Manual, 1963. Thus, his conduct constitutes grave misconduct and gross indiscipline which cannot be tolerated in a disciplined force. Accordingly, the Disciplinary Authority imposed penalty of "removal from service", 12.2. Being aggrieved with the order passed by the Disciplinary Authority, the applicant preferred an appeal before the Appellate Authority. By assigning reason for rejecting the appeal of the applicant, the Appellate Authority vide order dated 13.6.2022 upheld the decision of the Disciplinary Authority. It can be seen that the order passed by the Disciplinary Authority dated 10.5.2021(Annexure A/1) and order passed by the Appellate Authority dated 13.6.2022 (Annexure A/12) are impugned in the present O.A.
13. In the instant case, the core submission of Ld. Counsel for the applicant that he had participated in a departmental inquiry and had submitted his defence, representation Vig 13 0.a. 351/01260/2022 and had also stated various grounds before the Appellate Authority to establish that he has not committed any misconduct as alleged against him. He would also argue that the punishment imposed upon him is disproportionate. To substantiate the said submission Ld. Counsel would emphasize on the following main grounds:
(a) The applicant has been treated in an inequal manner by the Disciplinary Authority. In this regard, it is stated that one Ramkrishna, Police Constable who had also married for the second time without obtaining decree of divorce has not been penalized whereas in the instant case, the applicant has been charge sheeted for the alleged misconduct of bigamy and awarded punishment of "removal from service",
(b) It is argued that though the applicant had divorced his first wife as per his personal law by way of "triple talaq" on 9.8.2011, however, he was forced to stay with his first wife since by that time she had conceived and later on given birth to a baby and due to the issue of legitimacy of the child he was forced to register the marriage with his first wife under the provision of Special Marriage Act, 1954 on 30.9.2013. According to the applicant, the so-called remarriage was one of convenience of said Smt. Shabana Bibi that too for her self motive and, as such, there was no relationship between the applicant and the said Smt. Shabana Bibi thereafter.
(c) It is stated that in terms of Mohammadan law being the customary law of the applicant, the aspect of remarriage after divorce is rigidly covered under specific conditions, none of which is satisfied in the instant case. There are three categories of Muslim marriage in terms of the customary law, namely, 'sahih', fasid' and 'batil' marriages. These are based on the fulfilment of mandatory conditions based on which a marriage can be described as valid, irregular and void ab initio respectively. Further, it is stated that the Holy Quran itself whereby Aayat 230 of Sura-e-Baqarah makes it clear that if "a husband divorces his wife three times, then it is not lawful for him to remarry her until after she has married fL-
14 0.4. 351/01260/2022 another man and then is divorced, and only then it is permissible for them to reunite." 'Therefore, it is submitted that unless Smt. Shabana Bibi had married another person and received 'talaq' (divorce) from her second husband, she could not have remarried the applicant herein at all. Hence, even if it is alleged that any remarriage took place on 30.9.2013 under Special Marriage Act, the said was a 'batil' or void marriage, and did not exist in Muslim Personal Law as well consequently did not exist in Indian Civil Law. In addition, it is stated that his marriage with Smt. Razia Begum falls within the category of 'sahih marriage', as at the relevant time, the applicant did not have any wife since there was no valid legal marriage with Smt. Shabana Bibi in existence at all. Therefore, the charges levelled against the applicant of his second marriage while his first wife was alive is not tenable.
(d) tis stated that due to vindictive attitude of one Roop Lal with his wife Smt. Razia Begum, the applicant has been victimized by the respondents as well. Thus, the impugned orders are bad in law.
(e) Ld. Counsel for the applicant would also argue that considering the aforesaid social circumstances of the applicant, the Disciplinary Authority ought not to have imposed major penalty of "removal from service" which is harsh in nature in nature and grossly disproportionate to the alleged misconduct.
14, At this stage, it would be apt to mention that time and again in catena of judgments the Hon'ble Apex Court has held that while exercising judicial review in disciplinary matters, there are two ends of the spectrum. The first embodies a rule of restraint. The second defines when interference is permissible.
14.1. The rule of restraint constricts the ambit of judicial review. This is for a valid reason. The determination of whether a misconduct has been committed lies primarily within the domain of the disciplinary authority. The judge does not assume the mantle of the disciplinary authority. Nor does the judge wear the hat of an employer. Deference to a finding of fact by the disciplinary authority is a pe 15 0.a. 351/01260/2022 recognition of the idea that it is the employer who is responsible for the efficient conduct of their service. Disciplinary enquiries have to abide by the rules of natural justice. But they are not governed by strict rules of evidence which apply to judicial proceedings. The standard of proof is hence not the strict standard which governs a criminal trial, of proof beyond reasonable doubt, but a civil standard governed by a preponderance of probabilities. Within the rule of preponderance, there are varying approaches based on context and subject. The first end of the spectrum is founded on deference and autonomy deference to the position of the disciplinary authority as a fact-finding authority and autonomy of the employer in maintaining discipline and efficiency of the service.
14.2, At the other end of the spectrum is the principle that the court has the jurisdiction to interfere when the findings in the enquiry are based on no evidence or when they suffer from perversity. A failure to consider vital evidence is an incident of what the law regards as a perverse determination of fact. Proportionality is an entrenched feature of our jurisprudence. Service jurisprudence has recognized it for long years in allowing for the authority of the court to interfere when the finding or the penalty are disproportionate to the weight of the evidence or misconduct.
14.3. Judicial craft lies in maintaining a steady sail between the banks of these two shores which have been termed as the two ends of the spectrum. Judges do not rest with a mere recitation of the hands-off mantra when they exercise judicial review.
14.4. To determine whether the finding in a disciplinary enquiry is based on some evidence an initial or threshold level of scrutiny is undertaken. That is to satisfy the conscience of the court that there is some evidence to support the charge of misconduct and to guard against perversity.
Me
15. 16 0.a. 351/01260/2022 14.5. But this does not allow the court to re-appreciate evidentiary findings in a disciplinary enquiry or to substitute a view which appears to the judge to be more appropriate. To do so would offend the first principle which has been outlined above.
The ultimate guide is the exercise of robust common sense without which the judges' craft is in vain.
The aforesaid dicta has been emphasized by the Hon'ble Apex Court in a _ catena of judgments. It would suffice to refer to the law laid down in B C Chaturvedi Vs UOI reported in 1995 (6) SCC 749; State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya (2011) 4 SCC 584; Union of India v. P. Gunasekaran (2015) 2 SCC 610; Allahabad Bank v. Krishna Narayan Tewari (2017) 2 SCC 308; The State of Karnataka & anr. v. G. Gangarj (2020) 3 SCC 423; State of Bihar v. Phulpari Kumari (2022) 2 SCC 130; Three Judge Bench of Hon'ble Apex Court in Pravin Kumar v. Union of India & ors. (2020) 9 SCC 471; SBI v. Ajay Kumar Srivastava (2021) 2 SCC 612; Regional Manager UCO Bank & ors. v. Krishna Kumar Bhardwaj (2022) 2 SCC (L&S) 54.
In the aforementioned backdrop of dictum laid down by the Hon'ble Apex Court and upon perusal of material on record, in our considered opinion, the submission of Id.
Counsel for the applicant are not acceptable for the reason that undisputedly the marriage between the applicant and Smt. Shabana Bibi was solemnized on 30.9.2013 under the Special Marriage Act, 1954. It is also not in dispute that said Smt. Shabana Bibi gave birth to a female child on 9.2.2015. Further, it is also not denied by the applicant that without there being any decree of divorce with Smt. Shabana Bibi, in terms of provisions of the Special Marriage Act, 1954, more particularly, Section 27 of the said Act, the applicant has remarried Smt. Razia Begum on 1.11.2019.
Spee 1? 0.a, 351/01260/2022 15.1. It is not in dispute that the marriage of the applicant was registered under the Special Marriage Act has not been declared void by the competent authority under the law. In other words, in absence of any decree of divorce under Special Marriage Act, the said marriage of the applicant with Smt. Shabana Bibi exists and it is not open for the individual i.e. applicant herein to declare himself that his marriage with Smt. Shabana Bibi under Special Marriage Act is null and void. 15.2. The submission of Ld. Counsel that as per the provision of Muslim Personal Law (Shariat) said Smt. Shabana Bibi could not have remarried the applicant under Special Marriage Act and, therefore, the marriage registered under the said Act is void ab initio since the Shariat does not recognize such marriage registered under the Special Marriage Act, the said submission, in our considered view, is also not tenable.
15.3. The other ground stated by the Ld, Counsel for the applicant to justify the conduct of the applicant is as such not acceptable since the charge levelled against the applicant was very specific of "bigamous marriage."
15.4, It can be seen that in the inquiry it was established and proved that the marriage of the applicant which was registered under the Special Marriage Act, 1954 and the said marriage remained in existence and without there being any decree of divorce, the applicant had undisputedly entered into second marriage with one Smt. Razia Begum that too without obtaining any permission of the administration as required under Rule 8.26 of A & N Police Manual which reads as under:
" 8.26. Bigamous marriage:
No police officer who has a wife living shall contract another matriage without first obtaining the permission of the administration, notwithstanding that such subsequent marriage is permissible under the Personal Law for time being applicable to him."
15.5. At this stage, we reiterated that the marriage of the applicant with Smt. Shabana Bibi was solemnized and registered under the provision of the Special 18 0.a. 351/01260/2022 Marriage Act on 30.9.2013 was proved during the departmental inquiry. Therefore, said marriage as noted hereinabove can be declared void only under the provision of the said Act by the competent authority and none else.
15.6. As noted hereinabove, during inquiry it was proved that the marriage of the applicant with Smt. Shabana Bibi was registered under the Special Marriage Act and during the existence of the said marriage, the applicant herein married another person ic. Smt. Razia Begum that too without there being any decree of dissolution of his marriage with Smt. Shabana Bibi. Therefore, it cannot be said that there is no evidence surfaced during the inquiry in support of the allegation of bigamous marriage against the applicant/CO, In our considered view, it is also not open for the applicant to take shelter of provision of Muslim Personal Law and to state that the marriage registered under Special Marriage Act as null and void or can claim any exemption to the mandate of prior approval / permission of the administration as stipulated in Rule 8.26 of A&N Police Manual since the marriage registered under the Special Marriage Act was not dissolved as per the conditions stipulated under the Special Marriage Act, 1954. It goes without saying that the validity of the marriage registered under the Special Marriage Act cannot be declared as a nullity or a-void marriage in absence of any lawful procedure for dissolution of the said marriage. 15.7. Further, at this stage, it is also required to mention that in the case in hand it emerges from the record that the disciplinary proceeding was concluded by following 'the principle of natural justice and we do not find any procedural lacunae in the disciplinary proceedings and the decision making process.
Thus, in absence of any material on record, in this regard, we are of the considered opinion that the disciplinary proceeding concluded in accordance with tules and by following the principles of natural justice, as such there is no legal infirmity in the said inquiry and decision-making process.
16. Ld. Counsel for the applicant would also argue that the Disciplinary Authority and the Appellate Authority failed to appreciate the social circumstances of the applicant and p 19 0.a. 351/01260/2022 the major penalty imposed upon the applicant is disproportionate to the alleged misconduct. In support of the said contention, Ld. Counsel for the applicant by referring to the judgment dated 19.3.2021 passed by the Hon'ble High Court of Delhi in WP (C). 3613/2021 along with other CMs in the case of State of Rajasthan & anr. v. Pankaj Kr. Chowdhury & ors. submits that the major penalty of dismissal was declared disproportionate in respect to the charge of second matriage. In our considered view, the said judgment is not applicable to the facts of the present case since in the said case the first marriage stood dissolved by a decree of mutual consent.
Further, Ld. Counsel for the applicant also placed reliance on the judgment and oral order passed by Hon'ble Guwahati High Court in WA No. 357/2022 in the matter of Union of India & ors v. Pranab Kumar Nath decided on 18.1.2023 and submits that though the charge of bigamy in the said case was proved against the government servant, the Hon'ble High Court by taking a lenient view had quashed the major penalty of dismissal being harsh and directed the Disciplinary Authority to pass any other lesser penalty upon the petitioner therein. On examination of the said judgment, it is noticed that the Hon'ble High Court had taken a sympathetic view in respect to the charge of bigamy and the punishment imposed upon the petitioner therein, in our considered view, the observation of the Hon'ble High Court in the said judgment is absolutely in personem and cannot be said to be a judgment in rem.
Further, by referring to the judgment passed by the Hon'ble Apex Court in the case of Ashwini Kumar Upadhyay v. Union of India & anr. and analogous Writ Petitions would submit that the second marriage of the applicant was valid and as such the major penalty is grossly disproportionate. He would also rely upon judgment passed by Allahabad High Court in WRIT -- A No. 65946 of 2008 dated 11.8.2023 in support of his submission for disproportionate punishment. It is noticed that in the said judgment the Hon'ble High Court held that there was no evidence to establish performance of a second marriage during the subsistence of the first marriage and based on the said fact the impugned order of punishment was quashed. Whereas in the present case, it was proved that during the subsistence of first marriage which was registered under the Special Gil 20 0.a. 351/01260/2022 Marriage Act, the applicant herein had contracted a second matriage without dissolution of his first marriage as well without any permission of his employer as stipulated in the service rules. Therefore, none of the judgments in our considered view comes to aid of the applicant.
16.1. In this regard, it is required to mention that the Hon'ble Apex Court in the case of B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 has held that "the quantum of punishment is within the discretionary domain and the sole power of the decision-making authority once the charge of misconduct stands proved. Such discretionary power is exposed to judicial interference if exercised in a manner which is grossly disproportionate to the fault, as the constitutional courts while exercising the power of judicial review do not assume the role of the appellate authority. Writ jurisdiction is circumscribed by limits of correcting errors of law, procedural error leading to manifest injustice or violation of principles of natural justice."
Further, the Hon'ble Apex Court in its recent judgment in the case of Mehatru Baddhai @ Mehatru Ram Baddhai v. The State of Chhattisgarh & ors. in SLP (C). No. 11963/2022 decided on 6.2.2024 while upholding the judgment passed by the Division Bench of Hon'ble High Court of Chhattisgarh dated 21.1.2020 in Writ Appeal No. 57/2020 in a matter of disciplinary proceeding held against a Government servant for an unlawful act of bigamous marriage did not interfere with the major punishment of removal since the said Government servant entered into the second marriage without obtaining permission from the employer i.e. State authorities.
In the present case, as noted hereinabove, it is proved during the inquiry that during the existence of marriage registered under the Special Marriage Act and without there being any decree of divorce obtained under the law, the applicant entered into second marriage that too without obtaining any permission from his employer as A) stipulated under Rule 8.26 of A&N Police Manual, 21 o.a, 351/01260/2022 It is noticed that the applicant herein was the employee of a discipline force and the charges levelled against him of bigamous marriage was proved during the inquiry instituted against him and accordingly the Disciplinary Authority finding the said misconduct to be grave in nature had exercised their discretionary power and imposed major penalty of "removal from service" upon the applicant. The Appellate Authority had also upheld the said penalty, In our considered view, in light of law laid down in the aforementioned judgment in B.C, Chaturvedi (supra) and discussions hereinabove, the said decision of the Disciplinary authority with regard to imposition of major penalty cannot be said to suffer from any infirmities.
17. In view of the above, we are of the considered opinion that the finding recorded by the Disciplinary Authority cannot be said to suffer from any legal infirmities and the defence of the applicant as put forth was correctly not accepted by the DA as well the AA.
18. The O.A. lacks merit and is accordingly dismissed. No costs.
(Suchitio kr. Das) (Jayesh V. Bhairavia) Administrative Member Judicial Member "sp