Allahabad High Court
Shravan Kumar Pandey S.I. vs State Of U.P. & Others on 2 July, 2010
COURT NO.38
CIVIL MISC. WRIT PETITION NO. 70379 OF 2009
Shravan Kumar Pandey
versus
Stateof U.P. and others
HON. SHISHIR KUMAR ,J.
Heard Sri Vijay Gautam, learned counsel for the petitioner and Sri Jagriti Singh and the learned Standing Counsel for the respondents.
The present writ petition has been filed for quashing the order impugned dated 30.11.2009 passed by respondent no.4, Annexure-1 to the writ petition. Further prayer is to issue a writ in the nature of mandamus commanding the respondents to reinstate the petitioner in service on the post of Sub-Inspector treating him continuous in service with all the consequential benefits.
The challenge in the present writ petition is that according to the respondents if it is proved regarding the plural marriage at the time of existence of first wife, the punishment awarded to the petitioner cannot be granted in view of Rule 29 of U.P. Government Servant Conduct Rules 1956. According to the petitioner, some minor punishment in case it is proved that the petitioner has done the plural marriage, can be awarded after initiating any proceeding under the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules 1921.
It appears that on the basis of the complaint made by the alleged first wife, the respondents made an inquiry and after taking various evidence from various persons as well as the statement of the alleged subsequent wife, submitted a report that the petitioner has performed the plural marriage without taking consent of the department in spite of the fact that the petitioner has not validly divorced the first wife and taking a very serious view, the services of the petitioner were terminated by order dated 30.11.2009. The petitioner aggrieved by the aforesaid order has filed the present writ petition.
2The contention of Sri Vijay Gautam, learned counsel for the petitioner is that in view of the provisions as contemplated in Rule 29 of the Rules of 1956 only minor punishment like stopping the increment or other minor punishment can only be awarded. The major punishment of dismissal cannot be awarded in spite of the fact that it has been proved beyond doubt regarding the performing of plural marriage.
The petitioner has placed reliance upon a judgement of this Court rendered in Writ petition No. 19034 of1997 Gaya Deen Vs. Inspector General of police decided on 20.12.2004. Taking support of the aforesaid judgement, learned counsel for the petitioner submits that Regulation 29 of the Rules does not provide for major punishment, therefore, the decision of the authority dismissing the services of the petitioner cannot be sustained.
Another judgment relied upon by the learned counsel for the petitioner is 2009 (2) LBESR 949 (Allahabad) Smt. Raj Bala Sharma Vs. Sate of U.P. and others and reliance has been placed upon paragraphs 13,15 and 20 which are quoted as under:
13.As far as petitioner's statement is concerned, she has demonstrated that she had no knowledge about the first marriage of Sri Ajeet Singh. As far as the offence of remarriage (as per Section 494, IPC) is concerned, in the present case the petitioner Smt. Raj Bala Sharma had married after the death of her first husband. Section 494, I.P.C. deals with a person who had a husband or wife living. This charge cannot be fastened on Smt. Ra Bala Sharma, petitioner.
There is substance in the submission of the learned counsel for the petitioner that according to Section 17 of Hindu Marriage Act, no marriage between two Hindus could be solemnised if one of them has a husband or wife living. If such marriage is solemnised after the commencement of this Act it would be null and void. The provisions of Sections 494 and 495, I.P.C. shall apply in such cases. Applying this law, the marriage of the petitioner with Sri Ajeet Singh was null and void under law and no punishment could be awarded against her under Section 29 of the U.P. Government Servant Conduct Rules, 1956. As per Section 11 read with Section 5 of the Hindu Marriage Act, 1955, the marriage may be held as void. The petitioner's case cannot be dealt with under Rule 29 of the U.P. Government Servant Conduct Rules, 1956. Sri Ajeet Singh had given in writing to the Enquiry Officer that he had not informed the petitioner regarding her earlier marriage. The petitioner appears to be innocent in the present case.
15. This Court has read the provisions contained in Rule l29 of the U.P. 3 Government Servant Conduct Rules, 1956. It has been provided in these rules that whoever contravenes the provisions contained in Rule 29 (1) and (2) shall be awarded with a minor penalty. In the present case, the awarding of punishment of dismissal is certainty against the letter and spirit of Rule 29 itself. The major penalty ought not to have been awarded against the petitioner applying the Rule 29(1)(2)(3) of the U.P. Govt. Servant Conduct Rules, 1956.
20. In view of the above discussion, the petition succeeds and is allowed. The order of impugned dismissal of the petitioner of the petitioner dated 13.1.2006 and the orders passed in the appeal and revision dated 19.3.2006 and 12.4.2007 respectively are quashed. Since the order of dismissal has been quashed by this Court, the petitioner is entitled for reinstatement. The respondents are directed to reinstate the petitioner in service within one month from the date of filing of a copy of this order by the petitioner before the authority concerned. It is further observed that it shall be open to the appropriate authority to award only other minor penalty against the petitioner as provided in sub-rule (3) of Rule 29 of the UP. Government Servant Conduct Rues, 1956, if the charges are proved. All the consequences shall follow. The petitioner shall be treated to have remained in service with all the consequential benefits of such service."
Sri Gautam, learned counsel for the petitioner submits that as this Court has already taken a view regarding the fact as well as the law interpreting the provisions that in such circumstances, no major punishment can be awarded, therefore, the order of dismissal is liable to be quashed and if necessary, some minor punishment may be awarded.
A counter affidavit has been filed on behalf of the respondents but as regards the jurisdiction as well as the power under the Rules regarding awarding the major punishment under Rule 29, no averment in the counter affidavit has been made. Various other allegations have been made in the counter affidavit to the fact that as the petitioner has performed the plural marriage without any permission from the department and during the life time of the first wife, therefore, the punishment awarded after due inquiry cannot be held to be bad in law and illegal. Therefore, no interference is called for.
I have considered the submissions of the parties and perused the record. As well as the rule which clearly gives an indication that whoever contravenes the provisions contained in Rule 29 (1) and (2) shall be awarded with minor 4 penalty. In the present case awarding a punishment of dismissal that is admittedly a major punishment is certainly against the letter and spirit of Rule
29. In Gaya Deen's case (Supra), I have already taken a view after due consideration of the judgment of 1997 A.L.J. Page 1714, Paras Nath Pandey Vs. Assistant Director of Training and Employment, U.P. Lucknow that rule does not provide major punishment.
In view of the aforesaid fact and submissions as well as the decisions , I am of view that the order of dismissal dated 30.11.2009 cannot be sustained and is liable to be quashed.
The writ petition is allowed. The order dated 30.11.2009 is hereby quashed and the petitioner be reinstated in the service forthwith with all consequential benefit. However, it will be open to the respondents to award any minor punishment against the petitioner if they think proper in the facts and circumstances of the case and that too after affording full opportunity to the petitioner.
No order is passed as to costs.
2.7.2010 V.Sri/-