NATH SINGH MAHAR Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner Shri Nath Singh Mahar was enrolled in Assam Rifles on 15. 3. 1975. Before employment he was married to one Ganga Debi. On 8. 3. 1985, after a period of more than ten years in service, he contracted a second marriage with one Smti. Sarda Devi when his first wife was alive. This being a misconduct he faced a disciplinary proceeding initiated in January, 1996. Two charges were framed against him. The first charge is that in 1985 when he was Naik Subadar he gave a false declaration that his first wife Ganga Devi died on 15. 10. 1984. The said declaration was published in the Unit BRO as 42. 9. 85. Thereafter he married Smt. Sarda Devi. But from the letter dated 19. 1. 93 of Smt. Ganga Devi, forwarded by Soldier Welfare and Rehabilitation Branch, it came to light that the petitioner gave a false declaration which is unbecoming of a government servant. The second charge is that he contracted a second marriage on 8. 3. 1985 with Smt. Sarda Devi when his first marriage with Ganga Devi was subsisting. Such a second marriage without prior permission is illegal for a government servant. After a detail inquiry the petitioner was given benefit of doubt in respect of the first charge. But the second charge was found to be established. The petitioner was punished by compulsorily retiring him from service by an order dated 6th June 1997 after about 23 years of service. Aggrieved, he filed an appeal on 13. 9. 1997 to the Secretary, Ministry of Home Affairs, Government of India, New Delhi. After waiting for about four months, when the appeal was still pending, he has approached this court on 7. 1. 1998 by means of the present writ petition. He has called in question the correctness and legality of the penalty imposed.

(2.) THE only charge proved against the petitioner being his contracting a second marriage during the lifetime of his first wife, the petitioner has challenged the inquiry and the resultant penalty firstly on the ground that his first wife Ganga Devi was not examined by the inquiring officer. Though she reached Agartala after the inquiry was closed, even then it was necessary for the ends of justice to examine her. However, when she was not examined in spite of repeated request by the petitioner, she filed an affidavit sworn before a judicial Magistrate 1st Class, Agartala (Annexure-R-4 ). In that affidavit she clearly stated that she deserted her first husband, the petitioner herein, and got married in the year 1977 with one Man Bahadur Nepali. Her second marriage was solemnized after the dissolution of her marriage with the petitioner. This affidavit of Smt. Ganga Devi was not given due consideration by the disciplinary authority. Secondly, before marrying Smt. Sarda Devi the petitioner submitted a prayer to the Commandant on 15. 2. 1985 seeking permission, which was accorded. Thus, the second marriage by him cannot be said to be without permission from the competent authority. Thirdly, the inquiry authority examined only one witness, Smt. Sarda Devi, and relied on nine documents. But those documents were not formally accepted and he was not afforded opportunity to defend himself. There were four witnesses including Smt. Ganga Devi noticed by inquiry officer, but none of them was examined causing thereby serious prejudice to the petitioner. He prayed for setting aside and quashing the order of punishment and a direction to the respondents to re-instate him to the post of Naik Subadar with the benefits of pay and allowance from 1. 7. 1997. His further prayer is to promote him to the post of Assistant Commandant with retrospective effect from 8. 1. 1993 as he passed pre-qualifying test for the said post on 8. 1. 1993.

(3.) THE respondents in their counter affidavit contended that the petitioner submitted a declaration in prescribed form on 12. 7. 85 (Annexure-R-2) that his wife Ganga Devi died on 15. 10. 1984 and he married again Smt. Sarda Devi on 8. 3. 1985 according to Hindu rites. But the said declaration regarding death of Ganga Devi was later found to be false. She was very much alive and there was no decree of divorce dissolving her marriage before the petitioner married Smt. Sarda Devi. Thus the allegation of the petitioner that Ganga Devi married another person and bore children to her second husband was unfounded. As regards the second charge it is contended by them that the petitioner could not produce any documentary evidence to show that his marital tie with Smt. Ganga Devi was dissolved by a decree of divorce. Thus the fact remained that his first wife Ganga Devi was alive when he contracted the second marriage which indeed is violative of the relevant provision of the conduct rules applicable to him. Regarding the procedure followed by the Inquiry Officer it is contended that every opportunity was afforded to the petitioner to defend himself. The inquiry report would show that he along with his defence assistant participated in all the stages of the inquiry. It has, however, been admitted that as Ganga Devi reached Agartala only after the inquiry was concluded she could not be examined. But the affidavit submitted by her which stated certain misleading contentions was taken into consideration. As there has been no irregularity in the procedure followed by the Inquiry Officer affording all reasonable opportunity to the petitioner and as the second marriage during life time of the first spouse with the first marriage subsisting was proved, the order of penalty suffers from no vice calling for interference by this court.