S.U. Khan, J.@mdashPetitioner, who was a constable in U.P. Provincial Armed Constabulary (P.A.C.), has been dismissed from service on the ground of bigamy. Dismissal order was passed on 31.12.2004 by Commandant 15th Batalian, P.A.C., Agra. His appeal against the said order was also dismissed on 31.01.2005 by D.I.G. Police (P.A.C.), Agra. Review was also dismissed on 17.06.2005. All these orders have been challenged through this writ petition.
2. Admittedly Smt. Meena Kumari was wife of the petitioner. Petitioner filed divorce petition against her, which was allowed on 27.02.2004. However the allegation against the petitioner is that before passing of decree of divorce and during continuance of his marriage with Smt. Meena Kumari, he married with Smt. Saloni on 27.04.2001. Complaint before petitioner''s appointing authority was filed by father of Smt. Meena Kumari.
3. The allegation of the petitioner is that Smt. Saloni, the alleged second wife of the petitioner is in fact wife of Sriram and their marriage was solemnized under Special Marriage Act.
4. Petitioner was suspended on 21.03.2002. Charge sheet was given to him. Enquiry was held and enquiry officer submitted the report on 28.02.2003, copy of which is Annexure7 to the writ petition. The enquiry officer concluded that apart from Meena Kumari and her father, all other witnesses turned hostile and Smt. Meena Kumari and her father could not bring any evidence of second marriage. It was also concluded that on the basis of evidence gathered during preliminary enquiry, second marriage was proved during subsistence of first marriage, however no reliable evidence could be adduced in respect of second marriage in departmental/regular enquiry. It was also concluded that near relation of petitioner under the pressure of petitioner gave statements in his favour. The ultimate conclusion was that even though the petitioner was being acquitted (not found guilty), however, if considered necessary under any circumstances, preliminary enquiry and thereafter final enquiry might be held again.
5. Again preliminary and final enquiries were held against the petitioner after serving fresh chargesheet on 27.04.2004. This time, enquiry officer gave report against the petitioner on 15.11.2004, copy of which is Annexure10 to the writ petition (typed copies of both the reports have also been supplied). Thereafter, show cause notice was given to the petitioner, who gave reply thereto and thereafter order of dismissal from service was passed.
6. In the second enquiry, petitioner examined only one witness, i.e. Smt. Saloni. In the second report, it is mentioned that petitioner had admitted that he was having relationship with Smt. Saloni and a daughter by the name of Muskan was also born, however he had denied marriage with Smt. Saloni. Smt. Saloni in her statement before the second enquiry officer stated that she had been brought to give evidence by the petitioner; that she had married with Sriram, who was brotherinlaw of the petitioner; that in her earlier statement she had wrongly stated that she was married to Ramlal, real brother of petitioner; that she was married on 14.12.2002 with Sriram and it was court marriage.
7. It has been mentioned in the second enquiry report that first divorce suit was filed by Smt. Meena Kumari in the year 1997, which was decided on the basis of compromise and thereafter both resided as husband and wife for some time and then in the year 2001, petitioner filed divorce suit against Meena Kumari, which was decreed ex parte on 27.02.2004. It has also been recorded in the second enquiry report that petitioner contracted undeclared marriage with Smt. Saloni on 27.04.2001 and a daughter was born out of the said wedlock by the name of Muskan. It has also been noted that in previous preliminary and departmental enquiries, petitioner gave different statements regarding marriage of Smt. Saloni. At one stage, he stated that she had married with petitioner''s brother Ram Lal and at another stage, he stated that he had married with his brotherinlaw Sriram. Enquiry officer also held that Babu Ram proved the marriage of the petitioner with Smt. Saloni and the said fact was also proved by Sri Krishan Murari in the previous departmental enquiry. It has also been noticed that Omkar Singh in his statement in preliminary enquiry had also proved the marriage of petitioner with Smt. Saloni. Enquiry officer also held that the action of petitioner getting the marriage of Smt. Saloni with Sriram registered under Special Marriage Act was also a criminal act.
8. The charge against the petitioner was of bigamy under Rule 29(1) of U.P. Government Servant Discipline Rules, 1956. Charge of bigamy can be proved only by proving actual marriage. In the instant case, there is no direct evidence of actual marriage of the petitioner with Smt. Saloni.
9. Moreover, the statements recorded either in the earlier preliminary enquiries or in the first departmental enquiry could not be read in the second departmental enquiry as on the basis of those statements, the first enquiry officer had held that charge of bigamy was not proved. In the second report those statements were extensively quoted and relied upon.
10. Babu Ram, the only witness of second marriage in the second inquiry only stated that Saloni was married. He did not state that she was married with the petitioner.
11. Learned counsel for the petitioner has cited a Division Bench authority of this Court reported in Shahjahan Khan Vs. State of U.P., 2002 (1) UPLBEC 902 and has contended that even if it is proved that petitioner was having extra marital relationship with Smt. Saloni, it could not be treated to be misconduct under service Rules. However, I need not decide this question as the charge against the petitioner was not of having relationship with another lady, who was not his wife. The precise charge was of bigamy and this charge could be proved only by proving the second marriage directly.
12. Accordingly, I am of the opinion that charge of bigamy was not proved and that there was no such fresh evidence after conclusion of the first enquiry acquitting the petitioner on the basis of which charge could be said to be proved.
13. However, the conduct of the petitioner completely disentitles him to any back salary. Moreover, the termination order is being set aside only on technical grounds.
14. Accordingly, writ petition is allowed. Impugned orders are set aside.
15. It is directed that petitioner shall be reinstated in service within three months from the date of production of a certified copy of this judgment and order before the authority concerned.
16. However, petitioner is not entitled to any back salary. For other purposes benefit of continuity of service shall be granted to the petitioner.
