An application under the Administrative Tribunals Act, 1985 is not maintainable unless the applicant has first exhausted all available statutory remedies, including the filing of an appeal against the disciplinary order, as mandated by Section 20 of the Act.

ORDER

Per : Mr. Shri Krishna, Member (A)

The applicant in this OA is challenging the impugned order dated 02.12.2023 passed by the respondent No.2 (Annexure A-1) by which he has been compulsorily retired from the service on the ground of marrying second wife while he has not taken divorce from his first wife and also direction to the respondents to reinstate him in the service with consequential benefits.

Brief facts as stated by the applicant in the OA are that he was appointed as Fireman with the respondents department on 26.09.2011 and was confirmed on 16.06.2014. Subsequently, he was promoted on 06.04.2018.

The first wife of applicant – Smt Swati Pankaj Shende moved an application dated 04.02.2020 before the General Manager of Ordnance Factory Bhandara to mutate her name in service book of applicant and also alleged that the applicant defrauded her and had performed second marriage without taking divorce.

A show cause notice was issued to the applicant on 14.02.2020 which has been replied by him on 17.02.2020. The Disciplinary Authority, not satisfied with his reply, has issued charge memorandum dated 19.03.2020 in which two articles of charge were framed. Article I was for marrying Smt Shrada Belurkar despite having a living spouse Smt Swati Pankaj Shende and without having taken divorced from her. Article II was for gross misconduct viz being a Government servant has not endorsed the first marriage and details in his service book. Thus, he has been charged for violating conduct unbecoming of a Government servant under Rule 3(1)(iii) and Rule 21(1) of CCS(Conduct) rules, 1964.

The applicant filed his written statement on 30.04.2020. The Disciplinary Authority vide order dated 27.03.2021 imposed order of penalty of compulsory retirement.

The applicant filed appeal dated 13.04.2021 before the Appellate Authority i.e. D.G.O.F. Ordnance Factory Board Kolkata. The said Appellate Authority vide order dated 17.09.2021 in exercise of the powers conferred under Rule 27 of the CCS(CCA) Rules, 1965 set aside the penalty order with a discretion to the Disciplinary Authority to continue disciplinary Proceedings from the stage of receipt of written statement of defence submitted by the applicant. The Appellate Authority also ordered that Shri Pankaj Suresh Shende continues to be in service and disciplinary proceedings to be continued from the stage of receipt of written statement of defence submitted by the said Shri Pankaj Shende. Accordingly, he was reinstated. Thereafter, the disciplinary proceedings were continued.

The applicant in his letter dated 30.04.2020 submitted to the General Manager, Ordnance Factory Bhandara has admitted that he has married with the second wife due to his illness and also alleged that his first wife has deserted him after 15 days of marriage and criminal case is going on in the Nagpur Court and he is paying monthly maintenance of Rs.10,000/- to the first wife as per the order of the Court.

It is the contention of the applicant that though he has admitted the charge, however, the Disciplinary Authority is required to prove the charge by independent inquiry. He further submitted that the second marriage was not proved. As per solemnization of marriage two essential ingredients should be proved. The two ingredients are Homo and Saptapadi rites for a marriage as per Hindu law. Since there is no evidence that these two essential ingredients have been performed, therefore, the second marriage cannot be said to be marriage in the eyes of law. Merely making admission in the written statement of defence cannot be treated as evidence of the charge.

It has been submitted that the applicant has old parents who require frequent medical treatment. That he had to spend money for their medical expenses and if the applicant is punished in such an illegal manner, he will not be able to secure any job elsewhere and will not be able to support himself and his ailing parents.

It has been