Disproportionate punishment for misconduct under service rules.

Deepak Gupta, J.

This writ petition is directed against the order dated 11-12-2013 (Annexure-3 to the writ petition) whereby the petitioner has been ordered to be dismissed from services as well as the order dated 29-01-2014 (Annexure-5 to the writ petition) whereby the appeal filed by the petitioner against the order of dismissal was rejected.

2. The undisputed facts are that the petitioner joined service as Constable with the Border Security Force (BSF) on 23-10-1993. Prior to his appointment in the Force, the petitioner was married to one Fatima Begum as per Muslim law and this marriage was conducted probably in the year 1987. It is not disputed that in October, 2011 the petitioner contracted a second marriage without seeking permission of the authority. Thereafter, a complaint was received from his first wife that the petitioner had contracted a second marriage and that he had a daughter from the second marriage. A Court of inquiry was conducted and on the basis of the inquiry report the petitioner was found guilty and ordered to be dismissed from service.

3. Even before us, it is not disputed that the petitioner has contracted a second marriage. The case of the petitioner is that he is a Mohammedan governed by Muslim Personal Law and, therefore, as per his personal law he is entitled to enter into a second marriage. It is also urged that he entered into the second marriage with the consent of his first wife.

4. Reference has been made to Rule 7 of the BSF Rules, 1969 both in the order of dismissal as well as in the writ petition. We are clearly of the view that Rule 7 does not apply to the facts of the present case. Rule 7 is the first rule in Chapter II of the rules the heading of which is “RECRUITMENT”. Rule 7 reads as follows:-

“7. Disqualification.—(1) No person—

(a) who has entered into or contracted a marriage with a person having a spouse living, or

(b) who having a spouse, has entered into or contracted a marriage with any person, shall be eligible for appointment into Force:

Provided that the Central Government may if satisfied that such marriage is permissible under the personal law applicable to such person and the other party to the marriage and that there are other grounds for so doing, exempt any person from the operating of this rule.”

A bare perusal of the rule shows that a person who has entered into a second marriage while his first spouse is living shall not be eligible for appointment in the Force though the Central Government if satisfied may permit such a person to be appointed. This rule relates to the initial appointment and it has no connection with termination of service.

5. As far as contracting a second marriage during service is concerned, that is governed by Rule 21 of the Central Civil Services (Conduct) Rules, 1964 which are applicable to the BSF also and this rule reads as follows:-

“21. Restrictions regarding marriages-

(1) No Government servant shall enter into, or contract, a marriage with a person having a spouse living; and

(2) No Government servant, having a spouse living, shall enter into, or contract, a marriage with any person:

Provided that the Central Government may permit a Government servant to enter into, or contract, any such marriage as is referred to in Clause (1) or Clause (2), if it is satisfied that-

(a) such marriage is permissible under the personal law applicable to such Government servant and the other party to the marriage; and

(b) there are other grounds for so doing.

(3) A Government servant who has married or marries a person other than of India Nationality shall forthwith intimate the fact to the Government.”

Sub-rule (2) of Rule 21 clearly provides that no Government servant, having a spouse living, shall enter into, or contract, a marriage with any person. The proviso to this rule like the proviso to Rule 7 of the BSF Rules also empowers the Central Government to permit a Government servant to enter into, or contract a second marriage, if it is satisfied that such marri