D JEYARAJ Vs. MANAGING DIRECTOR

JUDGEMENT

(1.) The petitioner is the Junior Assistant/Storekeeper in the respondent Tamil Nadu Agro Industries Corporation Limited (hereinafter referred to as the "Corporation"). He married one Thazhaiammal (hereinafter referred to as the "first wife") in the year 1979 and the marriage was registered in the Sub Registrar's office at Madurai. Through her the petitioner has two children. While the said marriage was said to be subsisting, the petitioner married one Lalithamani (hereinafter referred to as the "second wife") on 18.1.89 and the said marriage was also registered in the Sub Registrar's office at Cumbum. The first wife sent a petition on 3.3.90 to the Regional Officer of the respondent Corporation complaining that the petitioner had married second time while the first marriage was in subsistence, thus, he committed bigamy. She also complained that she has lodged a criminal complaint, which was taken on file in C.C.No.259 of 1990. Hence, she requested the respondent Corporation to take departmental action for the misconduct of the petitioner.

(2.) A preliminary enquiry was conducted on 20.6.90 and 5.7.90. The first wife did not attend the enquiry. The petitioner and his second wife attended the enquiry. The petitioner though admitted the first marriage, defended the petition on the ground that there was a divorce between the petitioner and his first wife before the village Panchayatdar on 20.10.83. Since the divorce is customary, the second marriage was not illegal. The second wife also attended the enquiry and she accepted the marriage with the petitioner, but claimed ignorance of the first marriage. Based upon the enquiry, a report was sent to the Secretary of Personnel and Administrative Reforms Department, Government of Tamil Nadu by the Corporation seeking for a clarification as to whether for the bigamous act of misconduct, disciplinary action could be taken, as there was no specific rule enabling the Corporation to take action against the employee. The Secretary, Agricultural Department, Government of Tamil Nadu in his letter dated 8.2.93 advised the Corporation to amend the service rules in line with Rule 19 of the Tamil Nadu Government Servants Conduct Rules, 1973 defining the bigamous marriage as misconduct. The rules of the Corporation were amended in the 178th Board's meeting held on 22.3.93 and Rule 55-A(C)(1)(i) was inserted after issuing notice under Section 9-A of the Industrial Disputes Act. The rule was brought into force on 17.6.93. Thereafter, a memo was issued to the petitioner on 18.8.93 calling for explanation as to the misconduct of bigamy. On 15.10.93 the petitioner submitted his explanation. Since yet another act of misconduct on the part of the petitioner came to light, a further charge sheet was issued on 21.12.94 in respect of the following three charges:-

(3.) Mr.K.Chandru, learned Senior Counsel for the petitioner submitted that on the date when the act of bigamy alleged to have been committed viz., on 18.1.89, there was no rule in the Tamil Nadu Agro Industries Corporation Limited Service Rules defining the bigamous marriage as misconduct warranting any punishment and hence, no disciplinary proceedings could be initiated. The learned Senior Counsel therefore submited that the entire disciplinary proceedings are vitiated and the consequential orders of dismissal are liable to be set aside. The learned Senior Counsel would further submit that in any event, the petitioner had divorced his first wife before the village Panchayatdars during the year 1983 itself much before the second marriage on 18.1.89. The said divorce is customary and therefore there is no question of second marriage. The learned Senior Counsel would further submit that the first wife, the complainant, did not attend the enquiry to sustain her complaint. Moreover, when a criminal case for bigamy was pending, disciplinary proceedings ought not to have been initiated. He would also submit that the said criminal proceedings now has ended in acquittal of the petitioner by the orders of the Judicial Magistrate No.V dated 4.12.2000 in C.C.No.347 of 2000. Hence, the learned Senior Counsel submitted that the impugned orders are liable to be set aside.