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IN THE HIGH COURT OF GAUHATI
N. Kotiswar Singh, J.
Pabitra Kr. Nath - Appellants
Vs.
Union of India and Ors. - Respondents
W.P. (C) No. 912 of 2018
Decided On : 30-05-2019
CRPF Act, 1949 – Section 11 – CRPF Rules, 1955 – Rule 15 – CCS (Conduct) Rules – Rule 21 – Dismissal on Ground of Second Marriage – In this petition, the petitioner has challenged the dismissal, by which he was dismissed from service for violating provisions of Rule 15 of CRPF Rules, 1955 and Rule 21 of CCS (Conduct) Rules on the ground that the petitioner had entered into second marriage despite having his first wife living and without obtaining divorce and also without obtaining permission from the Competent Authority –The aforesaid dismissal order was upheld by the Appellate Authority – The main plea taken by the petitioner in this petition is that the aforesaid penalty of dismissal imposed upon the petitioner is disproportionate to the charge proved and as such, the matter may be remanded to the Authority to pass an appropriate order of penalty other than dismissal or removal in this regard – Held, It has been submitted that the petitioner never denied that he did not marry the first wife and in fact, he is paying maintenance allowance to his first wife and child as ordered by the learned Judicial Magistrate, First Class, as mentioned above – It is the case of petitioner that it is because of the harassment by the wife and also as she had left the marital home on her own that the petitioner had no option but to contract the second marriage – He married the second wife because of certain compelling circumstances – The aforesaid restriction in contracting a second marriage is, however, not absolute – There is a provision under Sub-rule 2 of the Rule 21 that the Central Government may permit a Government servant to enter into or contract a second marriage if such marriage is permissible under the personal law applicable to such Government servant and other party to the marriage and there are "other grounds" for doing so – The Rule is silent as to nature of "other grounds" mentioned under proviso to Sub-rule 2 of Rule 21 under which a second marriage would be permissible – This Court is of the opinion that the aforesaid reasons proffered by the petitioner may amount to be good ground as mentioned under the proviso to Sub-rule 2 of Rule 21, in which event such contracting a second marriage may not be a misconduct – In view of above, it is directed that the Appellate Authority shall reconsider the appeal about the applicability of Clause (b) to proviso to Sub-rule 2 of Rule 21 of the CCS (Conduct) Rules at the time of the consideration of the appeal, and thus reconsider the proportionality of the penalty of dismissal imposed by the Disciplinary Authority – Accordingly, the matter is remanded to the Appellate Authority with the above observations and directions – The Appellate Authority will pass a fresh order in the light of the observations made – With the above observations and directions, the petition is disposed of – Petitions Disposed Of
JUDGMENT :
N. Kotiswar Singh, J.
1. Heard Mr. I. Choudhury, learned counsel for the petitioner. Also heard Mr. S.K. Medhi, learned CGC for Union respondents.
2. In this petition, the petitioner has challenged the dismissal order dated 25.10.2017, by which he was dismissed from service for violating provisions of Rule 15 of CRPF Rules, 1955 and Rule 21 of CCS (Conduct) Rules on the ground that the petitioner had entered into second marriage despite having his first wife living and without obtaining divorce and also without obtaining permission from the Competent Authority.
3. The aforesaid dismissal order was upheld by the Appellate Authority vide order dated 28.12.2017 by rejecting the appeal preferred by the petitioner on the ground that the said dismissal order is not disproportionate to the proven charge vide order dt 28.12.2017.
4. Accordingly, the petitioner has approached this Court by filing this writ petition.
5. As we proceed to examine the issue raised, it may be necessary to advert to certain facts pertaining in the present case.
6. The case of the petitioner, in brief, is that the petitioner was appointed as a Constable, GD in the Central Reserve Police Force (CRPF) in the year 2003 and had been discharging his duties without any blemish in his service record. The petitioner states that he had married one Smt. Minakshi Nath on 10.02.2009. However, soon after his marriage to said Smt. Minakshi Nath, certain differences arose between them.
7. Though the petitioner had alleged that it is his wife who had tormented him mentally after the marriage, on the other hand, it was the allegation of the said Smt. Minakshi Nath that it was the petitioner who had harassed her physically and mentally, demanding dowry and after she became pregnant, the petitioner had expelled her from his house creating the circumstances leading to the separation and accordingly, she started living in her parental house.
8. Though the circumstances leading to the separation of the petitioner from his first wife soon after the marriage have been indicated in the order passed by the learned Judicial Magistrate First Class, Goalpara in MCR Case No. 142/2011, there is no judicial finding as to the exact circumstances as to who was really responsible for the said separation, nor it is within the scope of this proceeding to examine the same.
9. Be that as it may, the fact remains that because of certain domestic disputes between the petitioner and the said Smt. Minakshi Nath, she did not stay in the house of the petitioner for long and she stayed in her parental house leading to the filing of an application by her before the concerned Magistrate to demand maintenance allowance for herself and her minor daughter.
Accordingly, the aforesaid proceeding was initiated before the Court of the learned Judicial Magistrate, First Class, Goalpara and the learned Judicial Magistrate after hearing the parties passed an order that a sum of Rs. 3,000/- (Rupees three thousand) and Rs. 2,000/- (Rupees two thousand) be paid for monthly maintenance of the wife and her child from the date of institution of the said application i.e. 21.5.2011, vide order dt. 2.5.2012 passed by the learned Judicial Magistrate, First Class, Goalpara.
10. It is after the aforesaid living separately though not formally divorced, that the petitioner contracted the second marriage sometime in the year 2014 apparently without any permission from the authorities.
It seems that the first wife, Smt. Minakshi Nath after coming to know of the said second marriage of the petitioner, made a complaint before the competent authority of the Central Reserve Police Force (CRPF), on the basis of which a notice was issued by the Commandant of the 87th Battalion, CRPF, under whom the petitioner was serving.
By the said notice dated 18.10.2016, the petitioner was informed by the Commandant, 87th Battalion, CRPF that his wife Smt. Minakshi Nath had submitted a petition to the Office, in which she had alleged that despite having
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