Madras High Court
P.Soundararajan vs The Principal Secretary To The Govt on 17 June, 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.06.2013 Coram The Hon'ble Mr. Justice S.NAGAMUTHU W.P.No.4202 of 2007 P.Soundararajan .. Petitioner Vs 1.The Principal Secretary to the Govt., Government of Tamil Nadu, Home (Pol.V) Department, Secretariat, Chennai 9. 2.The Commissioner of Police, Greater Chennai. 3.The Deputy Commissioner of Police, Armed Reserve, Chennai. .. Respondents Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus to call for the records and quash the proceedings of the first respondent in Lt.No.127390/Pol.V/2002-8 dated 29.04.2005, proceedings of the second respondent in Proc.No.Appeal.3/PR.I(3)/99 dated 26.03.1999 and the proceedings of the third respondent in PR.70/PR.3(1)/97 dated 14.12.1998 and direct the respondents to reinstate the petitioner in service with all consequential benefits. For Petitioner .. Mr.M.S.Soundararajan For Respondents .. Mr.P.H.Arvindh Pandian, Addl. Advocate General assisted by Mr.R.Rajeswaran, Spl. Govt. Pleader ORDER
The petitioner joined in Police service as a Grade 2 Police Constable on 27.05.1988. The said post is governed by the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules. While so, the third respondent by his proceedings in Tha.Ko.No.59/Tha.Pi.1(2)/97 issued a charge memo to the petitioner, framing charges under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules. According to the said charge, on 07.12.1981, when his first wife Mrs.Selvi was alive and the marriage was in subsistence, the petitioner had contracted second marriage with one Tamilarasi in the year 1986. This conduct of the petitioner entering into the bigamous marriage is a violation of Rule 23 of the Tamil Nadu Subordinate Police Officers' Conduct Rules, 1964. Since the petitioner had allegedly violated the said Conduct Rules, charge memorandum came to be issued.
2.The petitioner has admitted that he married Ms.Tamilarasi in the year 1986. Rule 23 of the Tamil Nadu Subordinate Police Officers' Conduct Rules, 1964 prohibits a police officer from contracting second marriage subsequent to entering into service. Therefore, according to the petitioner, the second marriage with Ms.Tamilarasi that the petitioner had contracted long prior to his joining service is not at all a misconduct in terms of Rule 23 of the Tamil Nadu Subordinate Police Officers' Conduct Rules, 1964. Not satisfied with the said explanation, an enquiry officer was appointed and he conducted enuqiry. Before the enquiry officer, the petitioner admitted his marriage with Ms.Tamilarasi in the year 1986. But the enquiry officer, rejecting his explanation, found that he committed misconduct in terms of Rule 23 of the Tamil Nadu Subordinate Police Officers' Conduct Rules, 1964. Based on the said enquiry officer's report and after affording an opportunity to the petitioner to make further representation, the third respondent, by his proceedings dated 14.12.1998, dismissed the petitioner from service. As against the same, the petitioner preferred an appeal to the second respondent. The second respondent, by his proceedings in Proc.R.C.No.Appeal.3/PR.I(3)/99 dated 26.03.1999 dismissed the appeal, thereby confirming the order of removal from service. Challenging the same, he filed a review to the Government and the first respondent/Government, by issuing G.O.3D.No.137 Home (Pol.V) Department dated 26.06.2001 dismissed the same. Thereafter, the petitioner filed a mercy petition before the Government and the same was also rejected by the Government under Letter No.127390/Pol.V/2002-8 dated 29.04.2005. Aggrieved over the above, the petitioner is before this Court with this writ petition.
3.I have heard the learned counsel for the petitioner and the learned Additional Advocate General Mr.P.H.Arvindh Pandian assisted by Mr.R.Rajeswaran, learned Special Government Pleader. I have also perused the records carefully.
4.Admittedly, in this case, the petitioner had married one Ms.Tamilarasi in the year 1986 during the subsistence of the first marriage between him and one Selvi. Therefore, there can be no difficulty to hold that the petitioner had contracted bigamous marriage. Now the legal question involved in this case is as to whether the said bigamous marriage, which was contracted prior to entering into service, would fall within the ambit of Rule 23 of the Tamil Nadu Subordinate Police Officers' Conduct Rules, 1964 so as to be a misconduct to be dealt with under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules.
5.The learned counsel for the petitioner would submit that Rule 23 deals only with a situation after an officer had entered into the service and the said Rule cannot be made applicable retrospectively to the conduct of a police officer, which occurred prior to his joining service. In order to substantiate the said contention, the learned counsel would rely on a Division Bench judgment of this Court in G.Sekar Vs. Commissioner of Police and another ((2013) 3 MLJ 520).
6.To the contrary, the learned Additional Advocate General would contend that even on the date when the petitioner had entered into service, he was disqualified to join service. But the petitioner had not disclosed the same to the appointing authority. Subsequently, it came to light that the petitioner had contracted bigamous marriage even before his joining in service. That is the reason why, according to the learned Additional Advocate General, charge memorandum came to be issued under Rule 3 (b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules. It is the further contention of the learned Additional Advocate General that the disqualification suffered prior to his joining in service will continue for ever and therefore, simply because the disqualification was found out by the appointing authority subsequent to his joining in service, the petitioner cannot take advantage of his own wrong so as to contend that he has not suffered any disqualification. In this regard, the learned Additional Advocate General would rely on the First Bench judgment of this Court in P.Mohanasundaram Vs. The President, The Institute of C.A. of India and another (2013 (3) CTC 465). That was a case where the petitioner therein was governed by the Chartered Accountants Act, 1949 and Chartered Accountants Regulations, 1988. He was removed from the roll of the Chartered Accountants on the ground that he was convicted for an offence of bigamy. The Division Bench held that an offence of bigamy is an offence involving moral turpitude which is a disqualification. Referring to the same, the learned Additional Advocate General would further contend that though the charge was for violation of Rule 23 of the Tamil Nadu Subordinate Police Officers' Conduct Rules, 1964, the act of the petitioner would also fall within the sweep of Rule 22. At any rate, according to the learned Additional Advocate General, a person, who was disqualified for being appointed as a Police Constable, cannot be allowed to continue in service on any technical ground. It is his further contention that the petitioner, who was suffering from disqualification, ought to have informed the appointing authority about his bigamous marriage. But he had suppressed the same. Thus, he cannot be allowed to take advantage of his own either wilful suppression of the fact or wrong. At any rate, according to him, the petitioner cannot be ordered to be reinstated in service.
7.I have considered the above judgments.
8.Let me first take up the judgment of the Division Bench in G.Sekar Vs. Commissioner of Police and another ((2013) 3 MLJ 520), upon which, much reliance has been made by the learned counsel for the petitioner. That was also a case pertaining to a Police Constable. According to the charge in that case, the petitioner therein had entered into bigamous marriage with one Kamatchi in the year 2006. Admittedly, he joined service on 31.10.1997. In that case, the Division Bench found that the allegation that the petitioner therein married Kamatchi in the year 2006 had not been proved. Thus, on that factual finding, the Division Bench held that the petitioner therein had not violated Rule 23 of the Tamil Nadu Subordinate Police Officers' Conduct Rules, 1964. A close scrutiny of the said judgment would go to show that though a point had been raised in that case as to whether Rule 23 of the Tamil Nadu Subordinate Police Officers' Conduct Rules, 1964 would be applicable to a person, who had entered into service after the bigamous marriage, the said point was not answered at all. As I have already pointed out, the Division Bench, on facts, concluded that there was no bigamous marriage at all and on that conclusion, set aside the punishment imposed. Therefore, that judgment cannot be taken as a judgment laying down any law on the question, which is under examination in this writ petition.
9.To the contrary, the above question, slightly in a different shape, came to be considered by the First Bench of this Court in P.Mohanasundaram Vs. The President, The Institute of C.A. of India and another (2013 (3) CTC 465), upon which, the learned Additional Advocate General has placed reliance. In that case, the petitioner therein was a qualified Chartered Accountant. In that case, the matrimonial dispute between the petitioner and his wife arose in the year 1984 and there was a petition for divorce pending before the Family Court. Divorce was granted by the Family Court in the year 2003 and the same was confirmed on appeal in the year 2007. In the meanwhile, in the year 1990, his wife had filed a complaint before the competent Magistrate alleging that the petitioner therein had contracted a bigamous marriage, amounting to an offence punishable under Section 494 I.P.C. He was convicted by the criminal Court holding that prior to 1990 i.e. during the subsistence of the first marriage between the petitioner and his first wife, he had contracted bigamous marriage. The appeal preferred to the Sessions Judge was dismissed. As against the same, he filed a revision before this Court. In the revision, this Court, by order dated 13.02.2003, while confirming the conviction, was pleased to reduce the period of sentence to six months from one year. With the above factual background, a complaint was made by the first wife to the Institute of Chartered Accountants for initiating disciplinary proceedings against the petitioner therein. The First Bench had referred to Section 8 (v) of the Chartered Accountants Act, 1949 which speaks of disabilities, which reads as under:
"8.Disabilities:- Notwithstanding anything contained in Section 4, a person shall not be entitled to have his name entered in or borne on the Register, if he -
(i)......
(ii)......
(iii)......
(iv).......
(v)has been convicted by a competent Court whether within or without India (sic), of an offence involving moral turpitude and punishable with transportation of imprisonment or of an offence, not of a technical nature, committed by him in his professional capacity unless in respect of the offence committed he has either been granted a pardon or, on an Application made by him in this behalf, the Central Government has, by an order in writing, removed the disability; or
(vi).....
10.Section 20 of the Chartered Accountants Act, 1949 deals with removal of a Chartered Accountant from the Register of Chartered Accountants, which reads as follows:
"20.Removal from the Register:- (1)The Council may remove from the Register the name of any member of the Institute -
(a)who is dead; or
(b)from whom a request has been received to that effect; or
(c)who has not paid any prescribed fee required to be paid by him; or
(d)who is found to have been subject at the time when his name was entered in the Register, or who at any time thereafter has become subject, to any of the disabilities mentioned in Section 8, or who for any other reason has ceased to be entitled to have his name borne on the Register. (2)The Council shall remove from the Register the name of any member in respect of whom an order has been passed under this Act removing him from membership of the Institute. (3)If the name of any member has been removed from the Register under clause (c) of sub-section(1), on receipt of an application, his name may be entered again in the Register on payment of the arrears of annual fee and entrance fee along with such additional fee, as may be determined, by Notification, by the Council which shall not exceed Rupees Two Thousand."
11.After having referred to these Rules, the First Bench had the occasion to consider the judgment of Delhi High Court in M.S.Mann Vs. Union of India (1976 (1) SLR 350), judgment of the Honourable Supreme Court in Javed Vs. State of Harynana (2003 (3) CTC 620 (SC)) and also the judgment of the Honourable Supreme Court in Sushil Kumar Singhal Vs. Punjab National Bank (2010 (8) SCC 573). The First Bench also had an occasion to refer to Rule 23 1(a) of the Tamil Nadu Subordinate Police Officers Conduct Rules. In para 17 of the judgment, the First Bench has observed as follows:
"17.Rule 23(1)(a) of the Tamil Nadu Subordinate Police Officers Conduct Rules, 1944, which prohibits entering into a contract of marriage with a person having a spouse living was challenged before this Court in W.P.No.15288/2012 and one of us (NPVJ) upheld the said provision by holding that the said provision was made in accordance with the Personal Law applicable to the parties in order to maintain morality in society."
12.After having considered Rule 23 (1) (a) of the Tamil Nadu Subordinate Police Officers Conduct Rules vis-a-vis Chartered Accountants Act, 1949, in the light of the judgments of the Honourable Supreme Court and other Courts, in para 19, the First Bench has held as follows:
"19.From the above referred judgments and having regard to the fact that the appellant married another woman, while the first marriage was subsisting, and had acted contrary to the law and to his "estranged wife", we are of the view that the offence of bigamy is coming within the meaning of "moral turpitude"."
13.From the above extracted portion of the judgment of the First Bench, it is very clear that the act by a person entering into bigamous marriage is an act involving moral turpitude in terms of Rule 23 of Tamil Nadu Subordinate Police Officers' Conduct Rules, 1964 and therefore, it is certainly a misconduct.
14.But the learned counsel for the petitioner would submit that the said judgment could have no application to the facts of the present case. In that case, the Chartered Accountant was convicted whereas in this case, the petitioner had not been convicted for the offence of bigamy. In this regard, we may again refer to Rule 23 of the Tamil Nadu Subordinate Police Officers' Conduct Rules, 1964, which reads as follows:
"23.Bigamous Marriages:- (1)(a)No Police Officer shall enter into a contract or marriage with a person having a spouse living; and
(b)No Police Officer having a spouse living shall enter into or contract a marriage with any person;
Provided that the Government may permit a Police Officer to enter into or contract any such marriage as is referred to in clause (a) or clause (b), if they are satisfied that, -
(i)such marriage is permissible under the personal law applicable to such Police Officer and the other party to the marriage; and
(ii)there are other grounds for so doing.
(2)No Police Officer shall involve himself in any act involving moral turpitude on his part including any unlawful act, which may cause embarrassment or which may bring discredit to Government."
15.According to the said Rule, no Police Officer having a spouse living shall enter into or contract marriage with any other person, however, subject to the provisions. Here the expression used is entering into or contracting the bigamous marriage. There is no scope to rope the condition like 'conviction' into this provision. Had it been the intention to disqualify a person to be a police officer, only in the event of there being a conviction, the same would have been expressly incorporated in the said provision but instead, the provision is very explicit to say that mere entering into or contracting a second marriage is a misconduct. It does not require any conviction by any criminal Court on finding that there was a second marriage.
16.In this regard, I must state that prosecution before a criminal Court for bigamous marriage is at the discretion of the wife of the first marriage. But, even if the second marriage is contracted with the knowledge of the first wife and even though the first wife does not prosecute the husband for the same, it cannot be contended that there was no offence of bigamy committed by the husband. The moment he enters into the second marriage with another woman while the first marriage is in subsistence, the offence of bigamy is committed. But in Rule 23, the expression 'offence' is also not mentioned. Therefore, it is immaterial for the purpose of Rule 23 as to whether he was prosecuted or convicted for the offence of bigamy. It is suffice if it is proved that the police officer had entered into or contracted a bigamous marriage. In the case on hand, it is not at all in dispute that the petitioner had married one Ms.Tamilarasi as his second wife when the first marriage with Ms.Selvi was in subsistence.
17.But the core contention of the learned counsel for the petitioner is that even now Rule 23 cannot cover the misconduct viz., bigamous marriage, to which the petitioner is a party, which had occurred prior to his joining service. Though attractive, in my considered opinion, this argument deserves only to be rejected. In this regard, I may refer to the Special Rules for the Tamil Nadu Police Subordinate Service. Rule 13 of the said Special Rules prescribes qualification for a person to be eligible for admission to the Tamil Nadu Police Subordinate Service by direct recruitment. The said Rules reads as follows:
"13.Qualifications:- No person shall be eligible for appointment to the service by direct recruitment unless he satisfies the appointing authority -
(a)that he is of sound health, active habits and free from any bodily defect or infirmity unfitting him for such service;
(b)that his character and antecedents are such as to qualify him for such service;
(c)that such person does not have more than one wife living; or if such person is a woman, that she is not married to any person who has a wife living; and
(d)that he does not have knock knees or bow legs or flat feet."
(Emphasis supplied)
18.As seen from Rule 13(c), if a person has got more than one wife living, he is not qualified to enter into service. In this case, admittedly, the petitioner was having two wives as on the date when he entered into service. Thus he was fully disqualified from being appointed as a Police Constable. The said disqualification will continue for ever. The petitioner ought to have disclosed that he was having two wives living at the time when he sought for employment. But he did not do so. As it is pointed out by the learned Additional Advocate General, the fact that he was having two wives living came to light only subsequently. It was only thereafter action was initiated against him. Thus the petitioner cannot be allowed to take advantage of his own wrong viz., suppression of the above material fact.
19.But the learned counsel for the petitioner would contend that the charge does not relate to the allegation that he had suppressed his disqualification at the time when he entered into service. The charge was as though he committed misconduct subsequent to joining in service. Assuming that this argument is to be accepted, in my considered opinion, the petitioner cannot be allowed to continue in service for the simple reason that he was not at all qualified for even initial appointment as he was suffering from a serious disqualification. If the argument of the learned counsel for the petitioner that the petitioner had not committed any misconduct subsequent to his joining in service is to be accepted, then in my considered opinion, there could be no charge framed under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules. The charge under Rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules could be framed only in respect of misconduct, which had occurred subsequent to joining in service. But, here in this case, the petitioner, though had not committed any misconduct subsequent to joining in service, since he was suffering from disqualification even on the date of joining in service, there is no need even to issue any charge memo. But, at the same time, an opportunity should be given to the petitioner to explain as to whether two wives were living at the time when he joined service. If it is a disputed question of fact, then there must be further opportunity given to the petitioner either to prove or disprove the said disputed fact. But, here in this case, the petitioner had tacitly admitted that as on the date, when he joined service, he had two wives living. Therefore, affording another opportunity to him like framing a charge for suppression of fact etc., would only be an empty formality. Law does not stipulate any empty formality being followed by any authority. The right of an employee to have audi alteram partem is substantive and real and the same serves a purpose. The purpose is to afford an opportunity to explain his stand in respect of the allegation. But in this case, since the petitioner had tacitly admitted that he had two wives living at the time of his joining in service and since the fact remains that he had suppressed the same, no other opportunity need be given to the petitioner. Since undoubtedly, the petitioner was disqualified to enter into service and since the said disqualification continues for ever, he cannot be allowed to continue in service by allowing him to take a technical plea as it is now sought to be contended by the learned counsel for the petitioner. I hold that the dismissal of the petitioner is fully justified and the same does not require any interference at the hands of this Court.
20.In the result, the writ petition fails and the same is accordingly dismissed. No costs.
17.06.2013 Index:Yes Internet:Yes mmi To
1.The Principal Secretary to the Govt., Government of Tamil Nadu, Home (Pol.V) Department, Secretariat, Chennai 9.
S.NAGAMUTHU, J.
mmi
2.The Commissioner of Police, Greater Chennai.
3.The Deputy Commissioner of Police, Armed Reserve, Chennai.
W.P.No.4202 of 200717.06.2013