@JUDGMENTTAG-ORDER
Jitendra K. Maheshwari, J.
This petition was filed before the M.P. State Administrative Tribunal assailing the validity of the order of Disciplinary Authority dated 25-2-99 retiring him compulsorily after a regular departmental inquiry and to assail the orders passed in appeal on 27-3-99 and in mercy appeal on 11 -10-99. On abolition of the Tribunal, it is received to this Court for final adjudication.
It is the case of petitioner that he was recruited as Constable on 15-11-72 in District Jhabua. While he was posted in DRP Line, a notice dated 16-3-98 was served with the allegation of contracting the another marriage with one Kalawati while his earlier wife Smt. Suganabai is alive, which is in contravention to Rule 22(1) of Madhya Pradesh Civil Services (Conduct) Rules, 1965, (hereinafter it be referred as "Rules of 1965") however penalty to stoppage of one increment for one year was proposed. The petitioner had not filed the reply due to his ailment, however respondent No. 4 by passing the order dated 4-6-98 cancelled the said show-cause notice and decided to hold a regular departmental inquiry to which a charge-sheet was issued levelling the following charge:
Smt. Suganabai niwasi Jhaknawada pratham vivahit patni ke jivit rahte huye Kalawati ko patni ke roop mai rakhkar M.P. Civil Seva Achran Niyam, 1965 ke para kr. 22 ka ullanghan karna.
Petitioner has filed the reply, thereafter an inquiry was conducted by inquiry officer, who has submitted its report Annexure A-9, dated 18-12-98 and the charge as levelled against petitioner was found proved. After issuing a show-cause notice, and on filing the reply, the order dated 25-2-91 Annexure A-1 inflicting penalty of compulsory retirement was passed. The appeal and the mercy appeal preferred by him were rejected vide order dated 27-3-92 Annexure A-2 and the order dated 11-10-99 Annexure A-3.
Learned Counsel appearing for petitioner submits that the allegations as alleged in the charge-sheet does not constitute any misconduct in view of the language of Rule 22(1) of the Rules of 1965. Counsel further submits that as alleged petitioner had performed two marriages prior to commencement into the employment, which is apparent from the statements of both the wives and petitioner, recorded during inquiry. Bare reading of Rule 22 makes it obligatory to an employee to obtain permission from the Government prior to contracting the another marriage. In the present case, both the marriages were performed prior to entering into the employment by petitioner, he might not have any occasion to seek prior permission. Thus the order of penalty passed by the Disciplinary Authority and affirmed by the Appellate Authority are not in conformity to the rules and liable to be quashed. In view of the said submissions, prayer is made to allow the petition and to forthwith reinstate him with all consequential benefits.
On the other hand, respondents have filed their reply and contend that petitioner was having two wives while under Rule 22 of the Rules of 1965, the Government servant may have only one wife alive. On asking explanation, it is falsely disclosed, that he is having only one wife namely Kalawati @ Suganabai, his explanation was not found satisfactory. However, a notice to show cause was issued, why the penalty of withholding one increment for one year may not be imposed, but because reply was not filed by him, therefore, it was cancelled and the respondent No. 4 has decided to hold a regular departmental inquiry on the said charge. In the departmental inquiry the statement of the first wife Suganabai @ Kalawati and second wife Kalawati @ Guddi were recorded both have admitted that they are the wives of petitioner, however, inquiry officer has recorded the finding of contracting the another marriage by petitioner without prior permission. It is further contended that as per enquiry report the charge was found proved, however, the Disciplinary Authority has rightly inflicted the penalty to retire him compulsorily, which is affirmed by the Appellate Authority and the mercy petition has also been rejected. Shri Lokesh Bhatnagar, G.A. has strenuously urged that the orders passed by the Disciplinary Authority, Appellate Authority and in mercy petition relying upon the report of the enquiry, which is based upon the evidence and material placed before the inquiry officer and petitioner has failed to point out any procedural infirmity in the departmental inquiry, however interference in such matter is beyond the scope of judicial review, therefore, the order passed by the Disciplinary Authority, Appellate Authority and in mercy petition are liable to be upheld and the petition may be dismissed.
After having heard learned Counsel appearing for the parties and on perusal of the record, it is seen that petitioner had entered into the employment on 15-11-72. By the statements of both the wives recorded during the course of inquiry Smt. Suganabai @ Kalawati (P.W. 1) and Kalawati @ Guddi (P.W. 2) and also of the petitioner it is apparent that both the marriages were performed by him prior to entering into the employment. As per his statement recorded in inquiry, the first marriage was of the year 1964 and second marriage was of the year 1967, no cross-examination has been made by the presenting officer or by inquiry officer, however, his testimony has remained unchallenged. The respondents have not filed any proof, or produced any evidence of performance of second marriage after entering in the employment. It is seen that a departmental inquiry was initiated against the petitioner due to contracting the another marriage without prior permission, after about 26 years. In these facts interpretation of Rule 22 of the Rules of 1965 is required to be done, however reproduced hereinbelow:
22. Bigamous marriages.-(1) No Government servant who has a wife living shall contract another marriage without first obtaining the permission of the Government, notwithstanding that such subsequent marriage is permissible under the personal law for the time being applicable to him.
(2) No female Government servant shall marry any person who has a wife living without first obtaining the permission of the Government.
Bare reading of the said rule, makes it clear that the Government servant, who is having a live wife and want to contract another marriage, must obtain prior permission from the Government, even when such marriage is permissible under the personal law applicable to the time being in force. Thus the language of the said rule is unambiguous and makes it obligatory on a Government servant to obtain prior permission from the Government before contracting another marriage. Madhya Pradesh Civil Service Conduct Rules, 1965 prescribes the code of conduct to the Government employees. If a Government servant acts in contravention of those rules, it may amounting to misconduct. On analytical reading of the rule illuminates me that the Government servant cannot contract another marriage, without prior permission otherwise it may amount to misconduct. The said rule does not disqualify a citizen, who is aspirant, to get employment, it merely put an embargo to seek prior permission to contract another marriage.
The material produced in the departmental inquiry makes it clear that petitioner had performed first marriage in 1964 and second marriage in 1967, prior to entering into the employment, while he was not the Government servant, however, the allegation as levelled does not come within the purview of misconduct. The record of inquiry further indicates that after entering into the marriage, he had intimated to the department regarding both the marriages. It is further seen that petitioner has been saddled with the departmental inquiry after serving for about 26 years uninterruptedly without having any adverse effect on his working.
In view of the discussion as made hereinabove, it is apparent that both the marriages were performed, prior to entering into the employment, while petitioner was not the Government servant, however, in the facts of present case the allegation does not constitute any misconduct within the purview of Rule 22(1) of the Rules of 1965. In such circumstances, initiation of departmental inquiry against petitioner, is not warranted and the action taken by the respondents to punish him for the said charge is also against the spirit of the Rules. Therefore, I am of the considered view that the order of penalty passed by the Disciplinary Authority dated 25-2-99, affirmed by the Appellate Authority on 27-3-99 and the rejection of mercy appeal dated 11-10-99 are liable to be quashed.
Accordingly, this petition is allowed and the order of compulsory retirement passed by the Disciplinary Authority dated 25-2-99 Annexure A-1, Appellate Authority dated 27-3-99 Annexure A-2 and the rejection of mercy appeal dated 11-10-99 Annexure A-3 are hereby quashed. The respondents are directed to forthwith reinstate the petitioner, if he has not already attained the age of superannuation. In the facts and circumstances of the case, petitioner shall also be entitled to get back wages and other consequential benefits. It is made clear here that the amount of pension received by him be adjusted while calculating the arrears of back wages. The said exercise be completed within the period of four months.
In the facts and circumstances of the case, there shall be no order as to costs.
