Having held so, we are clearly of the view that the
punishment imposed upon the petitioner is grossly disproportionate
to the misconduct committed by him. We must keep in mind the
fact that the petitioner had already rendered 18 years of service
before he contracted into the second marriage. He was terminated
after he had completed almost 20 years of service. In the reply,
there is no allegation that there was any other complaint against
the petitioner. No doubt, his act of marrying a second time without
seeking permission of the Government is misconduct but can it be
said that this misconduct is so severe that he should be dismissed
from service which would mean that he would virtually be entitled
to no pensionary or other benefits.
8. The petitioner has pleaded that he was not aware of
the provisions of Rule 21 of the CCS (Conduct) Rules. Ignorance of
law is no excuse but at the same time, we cannot ourselves ignore
the hard truth that a large number of employees are not aware of
the details of the rules. Whatever be the case, the petitioner is a
person who served the BSF for about 20 years and the allegation
against him is that he misconducted himself by contracting a
second marriage while his first spouse was living. This is not a
criminal offence of bigamy because the personal law permits such
conduct. Misconduct is the technical misconduct in not seeking
permission of the authorities concerned. We are, therefore, of the
opinion that though the misconduct of the petitioner is serious
enough to warrant his non-continuation in service but it is not so
serious as to warrant forfeiture of all his service benefits.
THE HIGH COURT OF TRIPURA
A G A R T A L A
WP(C) 588 OF 2015
Ghulam Nabi Shergujri V The United of India,
BEFORE
HON’BLE THE CHIEF JUSTICE MR. DEEPAK GUPTA
HON’BLE MR. JUSTICE S. TALAPATRA
Dated: 04.4.2016.
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 marriage is
permissible under the personal law and there are grounds for
entering into the second marriage.
6. The main argument raised on behalf of the petitioner is
that since second marriage is permissible under the Muslim
Personal Law and furthermore, since the Government has the
power to grant such permission, the conduct of the petitioner could
not be treated to be misconduct and, therefore, the services could
not be terminated. We are not in agreement with this submission.
In case of any Government employee who has a spouse living and
such person wants to enter into a second marriage which is
permitted under his personal law, he must approach the Central
Government or the authorities concerned with a prayer in which it
should be clearly spelt out that as per his personal law he is
entitled to enter into a second marriage and secondly, that such
second marriage is necessary for certain reasons. It is for the
Government to decide whether permission should be granted or
not. It is not for the employee to decide himself without
approaching the Government that he is entitled to get married a
second time. This by itself is misconduct and contracting a second
marriage without the permission of the Central Government, even
if permissible under the personal law, clearly amounts to
misconduct and, therefore, the BSF was entitled to take disciplinary
action in terms of Rule 22 of the BSF Rules.
7. Having held so, we are clearly of the view that the
punishment imposed upon the petitioner is grossly disproportionate
to the misconduct committed by him. We must keep in mind the
fact that the petitioner had already rendered 18 years of service
before he contracted into the second marriage. He was terminated
after he had completed almost 20 years of service. In the reply,
there is no allegation that there was any other complaint against
the petitioner. No doubt, his act of marrying a second time without
seeking permission of the Government is misconduct but can it be
said that this misconduct is so severe that he should be dismissed
from service which would mean that he would virtually be entitled
to no pensionary or other benefits.
8. The petitioner has pleaded that he was not aware of
the provisions of Rule 21 of the CCS (Conduct) Rules. Ignorance of
law is no excuse but at the same time, we cannot ourselves ignore
the hard truth that a large number of employees are not aware of
the details of the rules. Whatever be the case, the petitioner is a
person who served the BSF for about 20 years and the allegation
against him is that he misconducted himself by contracting a
second marriage while his first spouse was living. This is not a
criminal offence of bigamy because the personal law permits such
conduct. Misconduct is the technical misconduct in not seeking
permission of the authorities concerned. We are, therefore, of the
opinion that though the misconduct of the petitioner is serious
enough to warrant his non-continuation in service but it is not so
serious as to warrant forfeiture of all his service benefits.
9. It is true that normally the writ Court does not interfere
in matters of punishment and does not impose a punishment by
itself but we are clearly of the view that this is one of those glaring
cases where the punishment is totally disproportionate to the
misconduct.
10. Therefore, keeping in view the facts and circumstances
of the case, we feel that the interest of justice will be served if
punishment of compulsory retirement is imposed upon the
petitioner instead of punishment of dismissal from service. The
impugned orders are modified accordingly. The petitioner shall be
deemed to have been compulsorily retired from the date of his
dismissal from service.
11. All the retiral and other pensionary benefits of the
petitioner shall be released to him within 6(six) months from
today, failing which the petitioner shall be entitled to interest @
12% per annum on the entire amounts w.e.f. 01.5.2016.
12. The writ petition is disposed of in the aforesaid terms.
No costs.
JUDGE CHIEF JUSTICE
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