Desa Singh vs Union of India

Petitioner is prematurely retired by an order dated 22101984 for having married a second woman during the subsistence of his first marriage

without the permission of the authorities concerned, which was not permissible under the rules. Show cause notice is said to have been served

under the CCS (Conduct) Rules, prior to the issuance of the impugned order. Petitioner challenges the said order in this writ petition.

Petitioner asserts that respondent No: 2 had issued a show cause notice to him for having married a second wife during the life time of his first

wife. In reply to the said show cause notice petitioner is said to have stated that he had not contracted the second marriage during the subsistence

of the first marriage. On receipt of the reply from the petitioner respondent No: 2 is said to have issued the impugned order without affording

opportunity of being heard to the petitioner. It is the case of the petitioner that he had married one Joginder Kaur with whom he could not continue

the matrimonial relations. Petitioner there after sought dissolution of the said marriage and application was made before the competent Court at

Amritsar under section 13 of the Hindu Marriage Act, from which exparte decree for dissolution of marriage between the petitioner and said

Joginder Kaur was granted. During the summer of 1984 petitioner had sought permission for having a family quarter from the respondent No. 2 as

his sister who was ailing was to stay with the petitioner. Petitioner denied having contracted second marriage during the subsistence of the first wife

and the impugned order is said to have been issued without any inquiry.

In their reply affidavit the respondents have stated that the petitioner had submitted an application in which he had stated that he had already

married. The department acted on his admission in view of CCS (Conduct) Rules 21 read with BSF Rule 7 and retired him after following the

procedure of issuing show cause notice. In reply to show cause notice petitioner is said to have forwarded consent from his first wife alongwith the

reply which he submitted.

The consent was attested by an Executive Magistrate in Ajnala dated 1591983. Under Hindu Law wife could give any consent to her husband to

marry second time. That time he had not obtained any judgment from any court. It was in October, 1984 that the petitioner had produced the

judgment of the Addl. District Judge Amritsar which would show that the petitioner was living in adultery and only legalised his second marriage on

3041984 otherwise his earlier application to the department saying that be had already married cannot be reconciled with his later conduct.

Petitioner was not able to explain his earlier application of July, 1983 in which he had made a confession that he had already married second time.

Petitioner is said to have approached some Civil Court at Bandipora, therefore, he cannot seek any relief in the writ petition. Petitioner's conduct is

said to be suspect on moral grounds which would not entitle him to seek any relief. The equities are against the petitioner.

The show cause notice is said to have been issued to the petitioner on 1211984 and he submitted a reply which was annexed with the consent

from his first wife. Retirement order passed on 22101984 which was based on the confession of the petitioner.

I have heard learned counsel for the parties

The petitioner admittedly belonged to BSF. He is governed by the BSF Act and the rules. Impugned order appears to have been issued against

him on the basis of the showcause notice issued under Rule 21 of the CCS Rules. The said rule places a restriction on a Govt. servant from

entering into or contracting a second marriage if a spouse is living on the date of marriage. The central Govt. may, however, permit a Government

servant to enter into or contract any such marriage, if it is permissible under personal Law and there are grounds for doing so.

At the bar it was convassed by Mr. Malik appearing for the respondents that premature retirement order was issued under Rule 7 of the BSF

Rules of 1969. That rule provides that no person who has more than one wife living or who having the spouse living marries in any case in which

such marriage is void by reason of us taking place during the life time of such spouse, shall be eligible for appointment, enrolment or employment in

the Force. The Central Government has power to exempt for sufficient grounds any person from the operation of this rule.

An argument was advanced by Mr. Hagroo that CCS Conduct Risks would not apply to the petitioner as he belongs to cBSF. He could be

dealt with only under the BSF Rules provided he was given an opportunity of being heard.

Without commenting as to whether the CCS conduct rules would apply to the facts of the case, it is clear that under the BSF Rules no person who

is subject to these can marry a second time during the subsistence of his first marriage. Therefore, the only question that would fall for the

consideration is whether the petitioner had married during the subsistence of first marriage or whether he had only sought permission before

entering into second marriage which he had entered into at the time of passing of the impugned order. Respondents rely on his purported

confession which is contained in the Hindi letter placed on record as Annexure1 to the reply affidavit.

During the course of arguments Mr. A.K Malik presented the translated version of the said letter in English and its Urdu version The petitioner

had in July, 1983 informed the authorities that his first wife could not procure any child for him, therefore, he has married second time. It was

stated by the petitioner that he has already made an application for permission and that his first wife has no objection to his entering into second

marriage, therefore, he may be permitted to second time. On receipt of this letter he was given a show cause notice dated 1211984 conveying him

that the first marriage which was illegal and the second marriage was also nullity. Therefore, his conduct was said to be violative of Rule 21 of the

CCS (Conduct) Rules, and he was asked to give reply within fifteen days from the date of receipt of the notice. Petitioner replied the said notice

on 2111984 in which he denied having entered into second marriage but admitted that his first wife had given her consent about his second

marriage. He had also stated that he had entered into matrimonial alliance, but permission to get married was still pending. According to him the

parents of the girl may cancell the enagement/promise to give their daughter in marriage to the petitioner, if his request was not granted. There upon

on 22101984 impugned order came to be passed without any enquiry because the petitioner's reply does cot seem to have been convincing.

It is, however, admitted by the respondents that the petitioner had in his favour judgment from Addl. District Judge Amritsar dated 3041984

where by he had obtained decree for dissolution of marriage with Joginder Kaur.

The alleged confession which was taken note of was before the issuance of show cause notice dated; 1211984 Petitioner had replied on

2111984. In his reply he had denied the factum of marriage second time during the subsistence of first marriage, but had sought permission in this

regard. However, in their reply, respondents rely on his first so called confession of July, 1983 in which he is said to have written that he has

married second time, therefore, he may be given permission to marry. This confession does not appear to be free from doubt. If he had already

married, there was no necessity for obtaining permission. He could have written that his second marriage may be rectified and if this confession

was to be acted upon or taken note of, and the show cause notice dated 1211984 mention of the alleged so called confession should have been

made enabling the petitioner to explain the matter. The show cause notice dated 1211984 issued to the petitioner in this regard does not make any

mention of this so called confession of the petitioner. Petitioner has denied having entered the second marriage which is reflected by AnnexureC to

the reply affidavit. The only course open to conduct an enquiry they were free to use the socalled confession as a piece of evidence against the

petitioner. The so called confession is neither made a ground in the show cause notice nor in the impugned order, but is introduced as a defence in

the reply affidavit by the respondent. Therefore, I am of the view ihat there was no evidence or proof before the respondents about the factum of

second marriage of the petitioner and at last about the date on which he had married second time in contravention of rule 7 of the BSF Rules.

Another important thing is AnnexureD to the reply affidavit. If the petitioner had obtained a decree of dissolution of marriage on 3041984, it

was to be ascertained as to whether he had married after 3041984 or before 304'84. Because after the dissolution of the first marriage in

accordance with the provisions of law, there was no impediment in the petitioner's why to marry for the second time. That would not be marriage

during the subsistence of the first marriage. After dissolution of first marriage law did not prevent the petitioner to marry a second wife which was a

fresh marriage and not second marriage during the subsistence of his first wife and in that case Rule 7 of the BSF & Rule 21 of the CCS conduct

Rules would not be attracted. That being so, enquiry with regard to the petitioner having married second time during the subsistence of first

marriage was not conducted nor was there any evidence which could bring the pensioner within the mischief of Rule 7 of the Rules. The socalled

confession could not be acted upon because it was not relied upon in the show cause notice nor was it relied upon in the impugned order.

Moreover, the confession was not categoric, unconditional or unequivocal. Therefore, it was required to be ascertained definitely as to whether the

petitioner had married and on which date he had married the second wife and whether such marriage was during the subsistence of his first

marriage. This enquiry was necessary in view of the decision of the Addl District Judge Amritsar dated 341984 which was a subsequent event.

By premature retirement the petitioner has been discontinued from service. He has suffered monetary loss and the impugned order has visited

him with penal consequences. Such an order could be passed only on enquiry and in accordance with the principles of natural justice. Petitioner

was not associated with any enquiry nor was he given opportunity to explain the so called confession. The English translation of Hindi letter

produced by Mr. Malik does not appear to be correct. However, Urdu version of the letter is correct, but reading the Urdu version, it cannot be

concluded that the petitioner had married in July 1983 when his first marriage was subsisting. If it was so, it should have been mentioned in the

show cause notice so that the petitioner could explain it in reply to the show cause notice and if he denied it, enquiry was warranted to be held and

in the absence of inquiry petitioner could not be prematurely retired affecting his valuable civil rights. His service has been cut short and this bas

been done without giving him opportunity of being heard.

For the reason stated above, I allow this petition and quash the impugned order. This would not however prevent the respondent to hold an

enquiry with regard to the petitioner having married second time during the subsistence of first marriage and with regard to the application of Rule 7

of the BSF Rules to the petitioner. Should the respondents choose to hold enquiry in this regard, they shall do so in accordance with the principles

of natural justice by associating the petitioner to the enquiry and give him fair and reasonable opportunity of being heard and defend himself. So the

parties are relegated to the stage which obtained on 1211984. If fresh proceedings are to be initiated they can be initiated only in accordance with

the guidelines laid hereinabove.