ZIAUL HAQ Vs. STATE OF U.P.

JUDGEMENT

(1.) Petitioner, who was a Constable in 38 th Division of Provincial Arm Constabulary (hereinafter referred to as 'PAC') has invoked jurisdiction of this Court, under Article 226 of the Constitution of India, challenging an order dismissing him from service, dated 28th February, 1998, as affirmed in appeal vide order dated 31 st July, 1998, and in revision vide order dated 21st December, 1998. The orders have been challenged essentially on the ground that petitioner has been denied opportunity to defend himself in terms of the applicable statutory rules.

(2.) While serving in 38th Battalion PAC at Aligarh, disciplinary proceedings were initiated against the petitioner on the grounds that while his first wife Smt. Anno Begum was alive, the petitioner, without having obtained divorce from her lawfully wedded wife and without obtaining prior permission from the Government, has solemnized a second marriage on 10.11.1996, and has thereby violated Rule 29 of the Uttar Pradesh Government Servants Conduct Rules, 1956. Petitioner was served with a chargesheet, on 26.1.1997, and was also accused of unauthorized absence from duty w.e.f. 2.11.1996 to 6.11.1996, in connection with solemnization of his second marriage. The chargesheet further records that petitioner had received it, and in response to a question raised, had admitted solemnization of second marriage for the reason that it is permissible in his personal law.

(3.) Petitioner submitted a reply to the chargesheet on 27.1.1997, wherein he has stated that he had divorced his earlier wife Smt. Anno Begum, daughter of Mohd. Israr, on 4.2.1994, in the presence of witnesses by pronouncing 'Talaq', verbally, thrice, as per the personal law governing the petitioner. It was also stated that the marriage with his first wife was not consummated, and since the petitioner came to know that his wife Smt. Anno Begum had physical relations with one Fakre Alam, prior to her marriage with petitioner, as such, he decided to divorce his first wife, and in respect of such dispute, his in -laws from the first marriage had even attacked petitioner's brother Kamrul Haq, in respect of which a sessions trial was pending. According to the petitioner, it was in these situation that petitioner moved an application for grant of leave to conduct his marriage, which was disapproved by the authorities on the ground that the petitioner is already married, and in peculiar circumstances, since petitioner's father was not well, he was compelled to marry Rukhsana Begum, daughter of Naseem Ahmad, on 10.11.1996, and he has resumed his duties on 6.12.1996. Petitioner has stated that pronouncement of triple Talaq was made in the presence of Mohd. Sayeed, son of Abdul Majid, aged about 65 years, and Mohd. Sharif, son of Abdul Majid, aged about 70 years, and many other relatives. Petitioner also stated that he shall not repeat any such act in future, and that he be forgiven. An enquiry proceeded in the matter, and statement of witnesses were recorded in the presence of petitioner, including statement of Mohd. Israr, father of petitioner's first wife Smt. Anno Begum, who categorically denied that any divorce was given by the petitioner to his first wife Anno Begum. In the cross -examination, petitioner raised two questions from Mohd. Israr. In response to the first question, it was stated that after the marriage, Anno Begum came to live with petitioner, and she actually stayed with petitioner for about an year, and in response to the second question, it was specifically denied that Anno Begum was ever divorced. Petitioner's first wife Smt. Anno Begum also appeared as a witness, and she specifically denied that she was ever divorced. All such statements have been recorded in the presence of the petitioner, and he was afforded opportunity to cross -examine the witnesses.