Point of Law: penalty of removal from service on that ground was not shockingly disproportionate to charge on established judicial parameters. In view of the aforesaid decision, the judgment relied on by the petitioner which is annexed with the petition in the case of Bodu Tarmamad (Supra) though it is on different facts, would not be applicable to the present case. In the said reported case, there was only an allegation that the delinquent allowed one girl to stay with him in the police line quarter. In the said case, the Court had said that there is no prohibition that the Government servant cannot allow an unmarried girl to stay in the Government quarters occupied by him. However, the Court took note of the fact that in the said case, there was no allegation at all against the petitioner that he was misusing the girl or he had any illicit relations with her and that the police line quarter were being used for such immoral purposes. Therefore, in that different fact situation, the Court held that, to permit an adult girl to stay with one’s own family is not ‘misdeed’ or ‘misconduct’ whereas, in the present case, not only the statement of the petitioner himself, statement of other witnesses and documentary evidences in the form of suit filed by the petitioner himself, Maintenance Application preferred by the Kanizaben, second wife, unequivocal proof that petitioner contracted or entered marriage having living spouse and thereby committed misconduct

JUDGMENT :

1. By way of this petition, petitioner, an Armed Police Constable, who was at the relevant time serving under the Superintendent of Police, District: Navsari, challenges order of his removal from service vide an order dated 18.04.2001 passed by Superintendent of Police, Navsari, on the ground that, the petitioner having living spouse married with one Kanizaben without obtaining divorce from his first wife or obtaining permission from the State Government, which is in breach of Rule 26 of the Gujarat Civil Services (Conduct) Rules, 1971 (for short, ‘the Rules’). At the same time, the petitioner is found to have stated false facts before the Deputy Superintendent of Police, Navsari when his statement was recorded on 6.1.1998 claiming that, he has not contracted second marriage, which is found false and therefore, charge against him in a departmental inquiry found to be proved by the Inquiry Officer. Against the order passed by Superintendent of Police i.e. Disciplinary Authority, the petitioner preferred an appeal before the Inspector General of Police, Surat Range, Surat, which also came to be dismissed vide an order dated 2.8.2001. Against the order of dismissal of his appeal, the petitioner preferred revision before the Director General of Police, which also met with the same fate and his revision application came to be dismissed vide an order dated 5.9.2001.

2. Not deterred by rejection of his appeal and revision, the petitioner preferred further revision before the State Government in its Home Department, which also came to be rejected by an order dated 1.2.2006. Against those orders, the petitioner has preferred this petition on the ground that, to keep a mistress is not a misconduct for a policeman relying on a decision in the case of Bodu Tarmamad V/s. District Superintendent of Police, Jamnagar and another reported in 1988 (1) GLR 101.

3. Mr.Hemang Shah, learned advocate for the petitioner submitted that the so called marriage with Kanizaben is not proved and therefore, on the ground of breach of Rule 26 of ‘the Rules’, the petitioner could not have been dismissed from service. He has further submitted that even Maintenance Application preferred by the Kanizaben against the petitioner under Section 125 of the Code of Criminal Procedure, 1973 (for short, ‘the Code’) has come to be dismissed. It is further submitted that not only that revision application preferred by Kanizaben against the order refusing her maintenance under Section 125 of ‘the Code’ also came to be rejected by the Revisional Court.

4. He has further submitted that the petitioner filed Regular Civil Suit No.218 of 2006 in the Court of learned Principal Senior Civil Judge, Valsad, praying for declaration to the effect that the marriage performed with Vaishaliben on 23.5.1989 as per Hindu rites is the valid marriage and she is legally wedded wife of the petitioner. Further declaration was sought for in the said suit that there is no marriage performed on 13.1.1994 with Kanizaben as per Muslim rites or a civil marriage and the registration thereof in the office of Sub-Registrar, Valsad is not undertaken by the petitioner and he had never assumed his name as Anil @ Burhan Sardar Panpatil. At the same time, it was prayed that the marriage with Kanizaben be declared as null and void and praying for restraining her to be known as wife of the petitioner in the society. However, he has further submitted that the said suit came to be partly allowed so far as declaration with regard to first marriage with Vaishaliben declaring her to be legally wedded wife and his marriage with her is subsisting whereas, for the other part of the relief claimed in the suit, came to be dismissed vide judgment and order dated 1.10.2015.

5. Mr.Shah, learned advocate for the petitioner submitted that against the order passed by the Principal Senior Civil Judge, Valsad in the aforesaid suit, an appeal has come to be filed and if appeal is allowed and the marriage with Kanizaben is