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Judgment
Petitioner, a police constable, had to pay through his nose for contracting a second marriage. For this, he was removed from service by Order
NO. 166 of 1994 dated 26.4.1994 passed by respondent No.3. The matter raised an interesting issue, viz. whether a second marriage could lead
to the employee's dismissal from service under the J&K Government Employee (Conduct) Rules, 1971?
Rule 22 of these rules which is material for our purpose reads thus:
No government employee who has a wife living shall contract another marriage without first obtaining the persmission of the Government,
notwithstanding that such subsequent mariage is permissible under the personnal law for the time being applicable to him. No female government
employee shall marry any person who has a wife living without first obtaining the permission of the Government.
Under Rule 22, a Government employee is debarred from contracting a second marriage without obtaining the permission of the Government in
this regard though such marriage is permissible under the applicable personal law. The short question that arises is whether the bar created and the
restraint imposed, would entail dismissal of a Govt. employee?
An overall view of the Conduct Rules suggests that these were regulatory in nature and enacted to ensure good conduct of its employees. These
could be said to be more in the nature of Do's and Dont's and guidelines for employees what to do and what not to do. For example, the Rules
required the employees to maintain absolute integrity and devotion to duty and refrain from doing anything which was unbecoming of a
Govt.servant. These also prohibited acceptance of gifts by them and participation in demonstration or making investments or taking up any private
trade or employment and so on without the prior permission of the Government. All this was perhaps provided to keep the employees on the right
track and to remind them of the sanctity attached to the nature of their duty.
But it was never conteplated or envisaged to convert them as saints over night through the enforcement of these Rules. Nor was any penalty
provided for any infringment or violation thereof. It is also noticed that these rules neither place a blanked ban nor impose prohibition on some
actions by the employees. On the contrary, the rules admit of a relaxation but with prior permission of the Government. So, a Government
employee can do all that which he is otherwise debarred from doing like accept a gift, take private employment, make investments etc., provided
he seeks the requisite permission, grant or refusal whereof could be dependant on various factors. Viewed thus, it is not that the Government
employee was traversing any forbidden area or committing any offnce by not taking out the Govt. permission which should lead to his removal
from service. The grant or refusal of permission by the concerned Authority and would also depend upon the resourcefulness of the applicant and
other variables like the disposition of the Authority and so on. An employee could marry any number of times if the Authority was favourably
disposed towards him and in the other case he would be liable to action.
In any case, it all comes to misconduct by the employee which raises a further question as to whether he could be removed from service for this.
It is true that a Govt. servant could be punished for his miscondct but all types of misconduct need not necessarily entail dismissal from serivce.
Illustratively, if an employee was found drunk or had accepted a gift, should it lead to his removal from service.
I find it difficult to accept such propostion regard being had to the doctrine of proportionality of punishment. It seems to me to harsh and
disproportionate to remove an employee from service for marrying second and by that logic all employee accepting gifts or making investments
without the permission of the Government require to be dismissed.
Above all, an employee in a given situation may enjoy the sanction of personnel law to contract second marriage. Any action to deprive him of
his livelihood would straightway impinge his religious freedom and his fundamental right to live a life of his choice and with degnity.
9 Looking at it from the other angle, petitioner's service is governed the police Rules and Rules 336 and 337 whereof caution that punishment
should fit the defablt and should be deterrent without being harsh and while imposing it regard shall be had to official's length of service etc. These
rules, as would be evident, proceed on the proportionality and suitability of punishment to minimise, if not eliminate the scope for any arbitrariness
or unreasonableness.
All things considered, the impugned action smacks of arbitariness. After all services of a Govt. servant are not liable to be discarded at the
drop of the hat. His right attached to the post could be taken away only in accorance with the procedure establihsed by law. All that is sadly
missing in the present case.
In the result, I allow this petition and quash impugned Order NO. 166 of 1994 dated 26.4.1994. Respondents are directed to reinstate the
petitioner in service with all consequential benefits.