Anjum Asgar vs Union of India

The petitioner was a Constable on the establishment of Central Industrial Security Force. He remained absent from 28/02/ 1994 till 02/03/1994

which is an absence of about 48 hours. The record produced by the respondents reveals that his two increments were with held by way of

punishment for such absence.

It appears that subsequently respondents came to know that the petitioner had contracted second marriage during the period of absence and

respondent (4) framed a charge against the petitioner not only for allegation of second marriage but also for the period of absence, despite the fact,

that petitioner was punished for such absence. An enquiry was reportedly conducted and the impugned order depicts that a finding in respect of

violation of Rule 21 of Central Civil Services (Conduct) Rules 1964 (hereinafter referred to as conduct rules) and Rule 12(a) of the Central

Industrial Security Rules 1969 (hereinafter referred to as C1SF rules) was returned against the petitioner.

The enquiry report was accepted, and the punishment of dismissal from service has been inflicted on the petitioner The petitioner has impugned

the charge sheet, enquiry proceedings as also the final order passed against him on manifold grounds which include challenge to the competence as

well.

From perusal of the pleading, official record the respondents produced before the court and the impugned order, two meaningful questions

arise, which are:

a) When a muslim husband repudiates the marriage by pronouncement of Talak (Divorce) and contracts second marriage subsequent to Talak, is it

permissible under law to hold him guilty of violating Rule 21 of Conduct Rules and Rule 12(a) of CISF Rules?

b) Examining the punishment inflicted on the touch stone of doctrine of proportionality, is the alleged violation so grave which calls for punishment

of dismissal?

With a view to answer these question, it is relevant to notice Rule 21 of Conduct rules and Rule 12 (a) of CISF Rules which read as follows:

RULE 21 OF CONDUCT RULES

Restriction regarding Marriage(l) No Government servant shall enter into, or contract, a marriage with a person having a spouse living, and (2)

No Government servant shall enter into ,or contract, a marriage with any person. Provided that the Central Government may permit a government

servant to enter into , or contract, any such marriage as is referred to in clause (1) or clause (2) , it is satisfied that(a) such marriage is permissible

under the personal law applicable to such Government servant and the other party to the marriage,and (b) there are other grounds for so doing. (3)

A Government servant who has married or marries a person other than of Indian nationality shall forthwith intimate the fact to the Government.

RULES 12A OF CISF RULES

12 A. Disqualification No person

(a) Who has entered into or contracted a marriage with a person having a spouse living; or

(b) Who having a spouse living has entered into or contracted a marriage with another person shall be eligible for appointment to the Force

provided that the Central Government may, if satisfied that such marriage is permissible under the personal law applicable to such person and the

other party to the marriage and there are other grounds for so doing, exempt any person from the operation of this rule.

From analysis of these two rules following propositions emerge:

(i) No Government servant or officers/ members of CISF can contract second marriage during the subsistence of the previous one;

ii) The Central Government has the power to accord permission to second marriage but such permission can be granted only if the marriage is

permissible under the personal law applicable to such Govt. Servant/member of Force, besides other grounds.

What emerges from perusal of the impugned order is that the respondent No. 4 has dismissed the petitioner from services only because of the

reason that he has contracted second marriage whereas the case of the petitioner is that he has contracted second marriage after divorcing his

previous spouse and this contention has specifically been pleaded in para No.l of the rejoinder supported by an affidavit and the issue needs to be

examined on the strength of rival contentions. Before proceeding further in this direction it needs a mention that the petitioner has been dealt with

for two charges framed against him by the respondent No.4. one for unauthorised absence, another for contracting second marriage, inspite of the

fact that punishment had already been inflicted on him for unauthorised absence by way of with holding increment for one year. This fact has been

noticed by the respondent No.3 who has declined to punish the petitioner for absence and the presumption available is that respondent NO.4 has

dealt with the matter casually which smacks of nonapplication of mind.

Now coming to the main issue, a question arises as to whether the petitioner has contracted second marriage during subsistence of earlier one

and in order to arrive at a conclusion as to whether the second marriage was contracted during subsistence of earlier marriage or after its

dissolution, the date of Talaq assumes essence and this field is open for the respondents to embark upon, which is a matter of fact and this vexed

issue has to be decided on the strength of evidence. Therefore, a necessity has arisen to examine the enquiry file which contains certain documents

including From3 From4 Nikahnama and from these documents one can safely presume that the petitioner has married two wives, but there is no

evidence to show that second marriage was contracted during the subsistence of earlier one and with a view to hold the petitioner guilty of violating

aforementioned rules it is required to be enquired into as to whether he has contracted second marriage during subsistence of first, on which count

evidence is wanting, thus the enquiry conducted is an exercise in futility, the respondents have opted for and the only conclusion available is that the

punishment of dismissal has been inflicted on the petitioner on no evidence the punishment, being on no evidence, respondent are, therefore, guilty

of Commission of error of law and the impugned order is liable to be quashed, yet the respondents are free to hold an enquiry as to whether the

petitioner had contracted second marriage during the subsistence of earlier one.

Having expressed my inclination to allow the respondents to go into the matter afresh, a few fundamental principles envisaged by Muslim law are

to be borne in mind by the respondents and in this direction it requires to be noticed that Muslim law gives absolute power of Talaq to a Muslim

husband of sound mind, whenever he desires without assigning any cause, orally as well. Divorce/ Talaq can be pronounced by any mode,

immaterial whether it is orally or in writing and no particular form of words are express is prescribed for effecting divorce and if or well understood

as implying divorce, no proof of intention is required, however, if the words are ambiguous in such case intention is to be proved, but question of

proof may arise only in eventually when the husband disputes pronouncement of divorce and on completion of divorce, certain rights and

obligations arise and one of the rights which accrues to a divorce is a right to contract a marriage, but of course after the completion of ;Idat; if the

marriage is consummated and if the marriage falls short of consumation, she is free to marry immediately which aspect I am not going to dialate

upon because it is not relevant to the case in hand. These are the basic fundamentals of Muslim law governing the rights and obligations of a

divorcer and divorcee.

Examining the matter in the light of mandate of personal law, it is not lawful to call a divorcee a living spouse of the divorcer for the simple

reason that a pronouncement of talaq terminates the marriage and the relationship of wife and husband comes to an end.

Now, I would like to deal with the arguments of Mr.A.Bhan. He has contested the challenge in respect of competence of the respondent No

This arguments 1 am not going to deal with because I am not inclined to pass any direction in favour of the petitioner on the strength of

challenged refuted by Mr. Bhan. Mr. Bhan has also submitted that a statutory remedy is available to the petitioner therefore the writ petition is not

maintainable. In this behalf it is relevant to mention that challenge has been thrown on the ground of lack of jurisdiction and the writpetition has

been pending for last three years, that apart, what is more important is that I have come to a conclusion that punishment inflicted is on no evidence,

it is an error of law and because of these reasons, I am loath to dismiss the writ petition on such ground Obviously, contention of Mr. Bhan is not

sustainable Mr.Bhan has also submitted that the petitioner did not choose to say anything in respect of separation of the couple. In order to

appreciate his argument, it requires a mention that the petitioner has filed a representation before the respondents which forms annexure (P20) to

the writpetition and pages 90and91 to the departmental file, produced by the respondents before me and at page 90 para 3, the petitioner has

specifically stated that he was not asked anything about his first wife and it is also stated that she has deserted the petitioner, therefore, respondents

were required to enquire this aspect which they have not done, so much so, this defence has not been dealt with in the impugned order of

dismissal. Therefore, Mr. Bhan's argument is of no help to him. It is pertinent to notice that the petitioner has made a statement at the bar that the

divorcee spouse has already contracted second marriage. Coining to the argument advanced on the strength of rule 12A of CISF rules, it is

submitted that the petitioner being guilty of violating rule 12A of CISF rules, is rendered unfit and cannot be allowed to continue in service. To

appreciate the argument of Mr. Bhan, it needs a mention that there are some statutes which prohibit appointment beyond a particular age limit and

if analogy suggested by Mr. Bhan is approved of, in such eventuality all such government servants who are in service but have crossed the age limit

prescribed for fresh recruits are unfit to continue in service and if this argument is accepted, it would lead to anamoly, crises and chaos and this

argument, in my opinion, is unfounded upon law and such view derives substantial support from the mandate of rules contained in Chapter IV and

a plain reading of these rules sets at rest the controversy raised by Mr. Bhan. As regards scope of the chapter, same is depicted by its headline

which reads as under: ""Recruitment to the Force"".

The Chapter consists of rule (11) which prescribes power of appointment. Rule (12) which envisages conditions of eligibility for the appointment to

the Force, whereas rule 12A excludes a candidate from eligibility zone prescribed for an officer/member of the Force and a harmonious

construction of the rules contained in Chapter IV, besides plain reading of section 12A, leads to the conclusion that rule 12A applies to the

candidates who seek recruitment to the Force and those who are already on the establishment of the Force do not fall within the ambit of this rule.

In the back drop of what has been said hereinabove, I am of the opinion that when a muslim husband divorces his wife and contracts second

marriage after having pronounced talak to his first wife, he is neither required to seek the permission to contract second marriage nor have

employers of such employee any power to deal with the Government servant/member of the Force under rule 21 of conduct Rules or rule 12A of

CISF Rules. Question (a) is answered accordingly.

This brings me to question (b) and it needs to be noticed that when a member of the force conducts himself in a way in derogation to the rules,

it can be treated a misconduct and the penalty which may be imposed on the Government servant be commensurate with the gravity of the

misconduct and if penalty is disproportionate to the gravity, it is bound to result in violation of Article 14 of the Constitution and what should

influence an Enquiry Officer while inflicting the penalty should be the facts and circumstances of a particular case and in this back ground a question

needs to be answered as to whether the penalty of dismissal from service is disproportionate to the charge of second marriage and this question

need not detain me because a Coordinate bench of this court had dealt with an identical issue which has arisen in writ petition titled Manzoor

Ahmad Mir, a constable, versus State of J and K. In the said petition an order of dismissal was impugned which was passed on the ground of

violation of Rule 22 .under J and K Govt. Employees (Conduct) Rules 1979 which prohibits second marriage during subsistence of the earlier one.

The order of dismissal in the said writ petition was set aside and a finding came to be returned that order of dismissal is harsh and disproportionate

to the charge of second marriage. The said judgment squarely covers question (b) involved in this case and I find no reason to deviate from the

view so taken. Accordingly, I hold that the penalty of dismissal cannot be imposed upon a Government servant/member of Force who has married

second wife during the subsistence of previous one, for, it is disproportionate to the charge and question (b) is answered accordingly.

While coming to a conclusion that the impugned order is liable to be quashed, 1 am also of the opinion that a fresh enquiry can be conducted

on the following issue:

Whether the petitioner has contracted second marriage after the divorce of earlier one?

I am also of the opinion that the respondent No.4 has charged the petitioner for absence notwithstanding the fact that a penalty stands already

imposed upon the petitioner on that count, prior to framing of charge and on an overall analysis of the matter, I am of the opinion that the

competent authority is within his jurisdiction to hold an enquiry afresh in the light of observations made hereinabove.

Viewed thus, I order as under:

a/ Writ petition is allowed;

b/ Order bearing No. V15014/DISC34/HEP/AA/951645 dated 08/04/195 is quashed;

c/ The petitioner shall be reinstated forthwith with all service benefits. However, the respondents shall be at liberty to conduct fresh enquiry in

accordance with the law and in the light of directions/observations made hereinabove;

d/ No order as to costs.

Before parting with, it needs a mention that after announcement of the judgment, the petitioner voluntarily offered to spare some percentage of

his salary including arrears for his two children born out of his erstwhile wedlock with a view to make them comfortable in the days to come. He,

therefore, sought permission to file an undertaking so as to bind down himself to stick to the offer. The offer having come from the petitioner, I felt

no hesitation to permit him to file the same which he has filed and is taken on the record so as to enable the respondents to take necessary action.