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Judgment
N. Paul Vasanthakumar, J.—The prayer in the writ petition is to declare Rule 23(1)(a) of the Tamil Nadu Subordinate Police Officers
Conduct Rules, 1964, and the consequential proceedings in RR. No. F4/07/2012 dated 14.2.2012 of the second respondent as unconstitutional
and ultra-vires. The facts in nutshell necessary for disposal of this writ petition are as follows:
(a) The petitioner was initially appointed as Woman Police Constable Gr-II in the year 1997 and subsequently promoted as Head Constable on
25.1.2007.
(b) While the petitioner was serving as woman Head Constable in the II platoon City Armed Reserve (AR), Coimbatore, the second respondent
issued a charge memo in his proceedings in P.R. No. F4/07/2012, dated 14.2.2012 under Rule 3(b) of the Tamil Nadu Police Subordinate
Services (Discipline and Appeal) Rules, 1955, alleging that in spite of the petitioner fully aware of the fact that R. Venkatesh-Naik 677, belonging
to Armed Reserve of Coimbatore City is married to one Maina and living together, the petitioner married the said Venkatesh, even while the first
wife is living and therefore she has violated Rule 23(1)(a) of the Tamil Nadu Subordinate Police Officers Conduct Rules, 1964, which is a
misconduct.
(c) According to the petitioner, the said Maina is the sister''s daughter of the said Venkatesh, who on coming to know about the marriage of
Venkatesh with the petitioner, attempted to commit suicide on the ground that the said Venkatesh failed to marry her and after the intervention of
the elders in the family, Venkatesh married the said Maina on 26.11.2003 as his second wife.
(d) The said R. Venkatesh was proceeded departmentally and at that time no proceedings was initiated against the petitioner. According to the
petitioner, the issue being one and the same, simultaneous proceedings under Rule 4-A of the Tamil Nadu Police Subordinate Service (Discipline
and Appeal) Rules, 1955, alone can be initiated and the second respondent has chosen to initiate proceedings separately against petitioner''s
husband and herself and ultimately passed an order of dismissal of her husband from service by order dated 29.11.2011.
(e) Petitioner''s husband challenged the punishment imposed against him before the appellate authority as per the rules and the appeal is pending.
The petitioner has attributed certain biased attitude against the third respondent with regard to the punishment imposed against petitioner''s husband
stating that similarly placed persons viz., Shankar and Suganya, for similar set of charges, were imposed with reduction of pay by two stages for
two years.
(f) After imposing the punishment of dismissal against petitioner''s husband, the impugned charge memo was issued against the petitioner relying on
Rule 23(1)(a) of the Tamil Nadu Subordinate Police Officers Conduct Rules, 1964, and therefore the petitioner is constrained to file this writ
petition challenging the said provision of law and the consequential charge memo.
(g) The contentions of the petitioner are that Rule 23(1)(a) of the Tamil Nadu Subordinate Police Officers Conduct Rules, 1964, is similar to Rule
19 of the Tamil Nadu Government Servants Conduct Rules, 1973 and only to avoid the criminal act of bigamy the said rule was framed and unless
the spouse is aggrieved and complaint is given, taking cognisance of the offence of bigamy is not permissible under the criminal law and the
petitioner being the first wife and her husband having married the said Maina with the consent of other spouse, calling the petitioner as second wife
of the said Venkatesh and proceeding against the petitioner by issuing charge memo is unsustainable. The rule enables the Officer to obtain
permission from the Government, if the Personal Law provides for such marriage and insofar as the petitioner''s case is concerned, the Personal
Law do not provide for such marriage. The said statutory rule interferes with the personal right of the person and interest of the Government
servant and his family members, and therefore it is in violation of Article 21 of the Constitution of India and therefore unconstitutional. The action of
the second respondent in not initiating proceedings against the petitioner and her husband under Rule 4A of the Tamil Nadu Subordinate Police
Officers Conduct Rules, 1964, is causing prejudice to the petitioner. Therefore the independent action initiated against the petitioner is to be
quashed.
The learned counsel for the petitioner submitted that the said Maina has given a statement on 25.8.2011 stating that she married petitioner''s
husband Venkatesh on 26.11.2003 in Perumal Koil Marriage Hall at Erode and she was aware of the earlier marriage between Venkatesh and
petitioner and therefore the charge framed against the petitioner that she married the said Venkatesh as second wife while the earlier marriage is
subsisting, is not sustainable. The learned counsel further submitted that the marriage between the petitioner and the said Venkatesh having been
held on 24.3.2002, she is the first wife of the said Venkatesh and therefore the charge itself is unsustainable. After issuance of the charge memo,
petitioner submitted a representation on 1.3.2012 and prayed for furnishing the documents. On 16.3.2012 the Assistant Commissioner of Police,
Traffic (West) was appointed as the Enquiry Officer.
Heard the learned Special Government Pleader for the respondents.
The charge levelled against the petitioner is for violation of Rule 23(1)(a) of the Tamil Nadu Subordinate Police Officers Conduct Rules, 1964
alleging that the petitioner married R. Venkatesh on 24.3.2002 after fully knowing the fact about his marriage with one Maina. The contention of
the petitioner is that the said Maina married Venkatesh as second wife only and the petitioner is the first wife of the said Venkatesh. The said
Venkatesh was also proceeded for the allegation of bigamy and he was dismissed from service by order of the second respondent dated
29.11.2011. The allegation levelled against the said Venkatesh was that he married the said Maina on 26.11.2003 and nominated her as wife
(aged 19 years) in the GPF, Tamil Nadu Family Benefit Scheme and Group Insurance Scheme and the same was filed in service roll on
13.9.2003.
It is not disputed by the petitioner in the affidavit filed in support of the writ petition that the marriages between the said Venkatesh and petitioner
as well as Venkatesh and Maina was performed. The only contention is that the marriage of the said Venkatesh with the petitioner had taken place
earlier and the marriage of Venkatesh with Maina had taken place subsequently. The said aspect has to be factually established before the Enquiry
Officer by the petitioner. The allegation being the petitioner married Venkatesh as second wife, without any proof to deny the same, the prayer of
the petitioner seeking to quash the charge memo cannot be maintained.
Rule 23(1)(a) of the Tamil Nadu Subordinate Police Officers Conduct Rules, 1964, prohibits entering into contract marriage with a person
having a spouse living. Petitioner and Venkatesh being Hindus, the are bound by the provisions of the Hindu Marriage Act, 1955. Section 5(i) of
the Act clearly states that neither party has a spouse living at the time of the marriage. Section 17 of the Act makes the marriage between two
Hindus void if two conditions are satisfied: (1) the marriage is solemnised after the commencement of the said Act, and (2) at the date of such
marriage, either party had a husband or wife living and the provisions of Sections 494 and 495 IPC shall apply accordingly. In the light of the
above legal position, in the case of a Hindu Government servant, if he marries with a person having a spouse living or he or she have a spouse
living, marries with any person shall be liable to punishment u/s 17 of the Hindu Marriage Act, read with Sections 494/495 of IPC and be liable for
disciplinary action for violation of this Rule.
Thus, the statutory provision viz., Rule 23(1)(a) of the Tamil Nadu Subordinate Police Officers Conduct Rules, 1964, is in accordance with the
Personal Law applicable to the petitioner and the said rule was enacted to maintain the morality of the Police personnel. Even in the absence of the
said Rule, petitioner being a Hindu, cannot marry a person who was having a spouse living. Hence the prayer made by the petitioner to declare
Rule 23(1)(a) of the Rules as unconstitutional and ultra-vires to the Constitution cannot be granted. The only contention raised to challenge the
vires of the rule is that with the permission of the Government, a Police Officer can enter into a marriage of contract, even if the Personal Law
applicable to such police Officer and other party to the marriage permits. The said provision is also in consonance with the Personal Law
applicable to Muslims. Only to have consistency in the Personal Laws, the proviso was added in the conduct rules. The same cannot be termed as
discriminatory treatment as Personal Law applicable to Hindus and Muslims differ.
Similar rule, namely Rule 21 of the Central Civil Services (Conduct) Rules, 1964 was upheld by the Delhi High Court in the decision reported in
1976 (1) SLR 350 (M.S. Mann v. Union of India). In the said decision in paragraph 27 it is held thus,
...It has been urged that Rule 21 is an encroachment on the life and liberty of an individual which progressively has come to mean more than
mere taking away of life by killing or putting fetters on liberty by imprisonment. In my view such an extended meaning cannot be given to the
restraint put by way of conditions of service in Rule 21 for, as I have observed earlier, a restraint put in consonance with a valid law cannot be
regarded as a restraint in contravention of Article 21 of the Constitution.
A Division Bench of the Allahabad High Court also in the decision reported in Ram Prasad Seth Vs. The State of Uttar Pradesh and Others,
upheld similar rule under U.P. Government Servants'' Conduct Rules. The said decision of the Allahabad High Court was approved by the
Hon''ble Supreme Court in the decision reported in Javed and Others Vs. State of Haryana and Others,
The jurisdiction of this Court to quash the charge memo was considered by the Supreme Court in the decision reported in State of Orissa and
Another Vs. Sangram Keshari Misra and Another, In the said Judgment it is held that finding out the correctness or the truth of the charge is the
function of the Disciplinary Authority. It is a well settled principle of law that Court can consider the validity of charge memo if the charge memo
was issued by an authority not having jurisdiction to issue the charge memo, or if the charge is vague, and if there is unreasonable and unexplained
delay in initiating disciplinary proceedings and if allowed to proceed the delinquent will be prejudiced. None of the above grounds are urged or
made out in this writ petition to interfere with the charge memo. Further, the petitioner has not chosen to reply to the charge memo till date. If the
petitioner is submitting explanation and producing any proof to show that she married the said Venkatesh earlier than the said Maina, the
respondents are bound to consider the said aspect. The learned counsel for the petitioner submitted that the second respondent, who is personally
impleaded as third respondent in the writ petition having dealt with the issue by passing an order of dismissal from service of the petitioner''s
husband, is biased, and she may not get justice from the second respondent, if he is allowed to act as Disciplinary Authority. The said issue can
also be raised before the first respondent or the higher officials of the second respondent, and if any such issue is raised, the same is also bound to
be considered and take appropriate decision regarding the Disciplinary Authority of the petitioner, on the facts and circumstances of the case.
In the result, the writ petition is dismissed with the above liberty. No costs. Connected miscellaneous petition is also dismissed.