Hon'ble Ashwani Kumar Mishra,J.
1. Heard learned counsel for the appellant-petitioner, Sri S.P. Mishra and learned Standing Counsel Sri Pushkar Baghel, appearing for respondents.
2. This is an appeal under Chapter VIII Rule 5 of the High Court Rules, 1952 against the impugned order dated 31.7.2012 passed by Hon'ble Single Judge in Writ Petition No.1343 (S/S) of 2004.
3. The appellant-petitioner, a police constable, has been punished pursuant to disciplinary proceedings, being remarried to another lady without seeking permission of the state government in pursuance to U.P. Government Servants Conduct Rules, 1956 (in short '1956 Rules'). The factum of remarriage by the appellant-petitioner seems to be not disputed. The appellant-petitioner also does not dispute that he has remarried himself in spite of the fact that his first wife survives.
4. The appellant-petitioner was married to one Smt. Sunita, daughter of Shri Raghuwar Tiwari according to Hindu rites and rituals in the year 1991. Since wedlock of his first wife, he could not get child for almost 11 years, hence he again married to another lady. Feeling aggrieved, first wife submitted a complaint to D.I.G., Lucknow on 11.7.2001 with the allegation that the appellant-petitioner has solemnized second marriage with another lady, namely Smt. Deep Mala, without divorcing her and also threatened to kill her and her parents. On account of ill-treatment due to remarriage by the appellant-petitioner, the first wife has gone back to her parental house (maika). The departmental enquiry was initiated, and finding has been recorded by the Enquiry Officer that the appellant-petitioner has remarried to another lady during lifetime of his first wife. The disciplinary authority has awarded major penalty of dismissal from service. Appeal and revision preferred by the appellant-petitioner were dismissed. Feeling aggrieved, he preferred a Writ Petition No.1343 S/S of 2004 before this court, which has been dismissed by Hon'ble Single Judge by the impugned order, which is under challenge in the instant appeal.
5. While assailing the impugned order, learned counsel for the appellant-petitioner submits that under compelling circumstances, he had remarried to another lady, so that he can have child to carry on social need. It is further submitted by appellant-petitioner's counsel that the marriage solemnized was perfectly in accordance to the provisions contained in sub-section (ii)(b) of section 5 of Hindu Marriage Act, 1955. Learned counsel for the appellant-petitioner further submits that in any case the punishment awarded to the appellant-petitioner is disproportionate to the misconduct. He relied upon an unreported judgment of this court dated 22.3.2010 passed in Civil Misc. Writ Petition No.25871 of 2009 'Pancham Giri vs. State of U.P. and others' by Hon'ble Single Judge. In this case, Hon'gle Single Judge had remanded the matter to the authorities, relying upon the judgment in the case of Bhagat Ram vs. State of Himachal Pradesh reported in 1983 (2) SCC 442, to take a fresh decision with the finding that the dismissal from service is disproportionate to his misconduct.
6. Learned counsel for the appellant-petitioner further submits that some of the reasons recorded in the impugned order are not sustainable and observation has been made without going through the records. Such argument does not seem to be available to the appellant-petitioner for the reason that the factum of remarriage has not been disputed. Once, the misconduct is admitted, then there is no option with the authorities except to award punishment in accordance to law.
7. On the other hand, learned counsel for the respondent has invited our attention to the judgment reported in (2006) 6 SCC Union of India and another vs. K.G. Soni, wherein Hon'ble Supreme Court held that punishment awarded to the delinquent employee on account of second marriage call for no interference by the court. Interference of the court under Article 226 is limited to the deficiency in the decision-making process and not the decision.
8. Rule 29 of the U.P. Government Servants Conduct Rules, 1956, which deals with service conditions and is relevant for adjudication of the present controversy, is reproduced:-
"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."
9. A plain reading of Rule 29 reveals that a government servant cannot marry again without permission of the state government. The legislature to their wisdom has used the word "notwithstanding" which means, even if the marriage is permissible under personal law for the time being applicable to a government servant, such government servant cannot be allowed to marry again without permission of the state government.
10. It is settled proposition of law that when the language of the statute is clear and unambiguous, court can not make any addition or subtraction of words vide 2006 (2) SCC 670, Vemareddy Kumaraswami Reddy and another Vs. State of Andhra Pradesh,
11. In AIR 2007 SC 2742, M.C.D. Vs. Keemat Rai Gupta and AIR 2007 SC 2625, Mohan Vs. State of Maharashtra, their Lordship of Hon'ble Supreme Court ruled that Courts should not add or delete the words in statute. Casus Omisus should not be supplied when the language of the statute is clear and unambiguous.
12. In AIR 2008 SC 1797, Karnataka State Financial Corporation Vs. N. Narasimahaiah and others, Hon'ble Supreme Court held that while construing a statute, it can not be extended to a situation not contemplated thereby. Entire statute must be first read as a whole, then section by section, phrase by phrase and word by word. While discharging statutory obligation with regard to take action against a person in a particular manner, that should be done in the same manner. Interpretation of statute should not depend upon contingency but it should be interpreted from its own word and language used.
13. Accordingly, since rule 29 of 1956 Ruels does not give any liberty to a government servant to enter into second marriage without permission of the state government, no interpretation other than what is reflected from a plain reading of the provisions contained therein may be given.
14. We are of the view that the appellant-petitioner cannot take assistance of the provisions contained in Hindu Marriage Act or alike personal law being a government servant. The 1956 Rules has got statutory force and also got overriding effect over the provisions contained in the statute dealing with personal law.
15. Much reliance has been placed by the learned counsel for the appellant-petitioner on the judgment dated 28.6.2012 of the Gauhati High Court passed in Writ Appeal No.320 of 2010 'Union of India and others vs. Shri Ramashankar Gupta'. In the case of Shri Ramashankar Gupta (supra), the Gauhati High Court has considered the earlier judgment in the case of Amal Kumar Baruah vs. State of Assam and others reported in 2006 (2) GLT 569, whereby the complaint, submitted by the wife, has been withdrawn by her and in the same case the Division Bench of Guahati High Court had affirmed the order of dismissal from service on a proven charge of bigamy. For convenience, para 26 of the judgment in Union of India and others vs. Shri Ramashankar Gupta (supra) is reproduced:-
"26. As has already been noticed above, bigamy is prohibited by Rule 21 of the Central Civil Services (Conduct) Rules, 1965. When bigamy is expressly prohibited under the law (except the two exceptions mentioned in the provision which are not attracted and applicable in the present case), it would not be correct to say that punishment of dismissal from service on a proven charge of bigamy would be disproportionate on the ground that under the criminal law bigamy is a compoundable offence, more so when the delinquent was a member of a disciplined force like the Assam Rifles. Continuation of such a person in force may have an adverse affect on the overall image of the force. It may affect the public perception that a person guilty of bigamy can still continue as a member of such force. Moreover, it may have a cascading effect on the overall morale and discipline of the force. The further view taken by the Single Bench that the second marriage has nothing to do with either the official position of the petitioner or the discharge of official duties does not appear to us to be a correct appreciation of the consequences of proven charge of bigamy."
16. In the case of Pancham Giri vs. State of U.P. and others (supra), Hon'ble Single Judge while deciding the writ petition has remanded the matter to the authorities to take a fresh decision on dismissal from service on account of the fact that the delinquent employee was at the verge of retirement. A lenient view was taken by Hon'ble Single Judge keeping the facts and circumstances of the case, which does not seem to be applicable to the present case.
17. In the case in hand, the appellant-petitioner had committed an offence of bigamy after enjoying 11 years of matrimonial life. Once the 1956 Rules provides that second marriage by a government servant during the lifetime of first wife is an offence, and it amounts to misconduct, then it is not open for the court to take a different view than what has been considered by the disciplinary authority.
18. In the case of Union of India and another vs. K.G. Soni (supra), relied upon by learned counsel for the appellant-petitioner, Hon'ble Supreme Court in identical situation held that the High Court ordinarily should not interfere in such a matter by exercising power conferred by Article 226; rather it has to look into the deficiency in the decision-making process and not the decision. For convenience, relevant paras 3, 8, 13 and 14 of the aforesaid judgment are reproduced:-
"3. Background facts in a nutshell are as follows:
Respondent was a Store Attendant in the Bank Note Press, District Dewas (M.P). A charge-sheet was issued against him on the foundation that though he had got married with one Parvathibai in the year 1973, while filling up the attestation form on 16.3.1974, he did not show her name as his wife. It was further alleged that he got married for the second time in October, 1974 with one Ushabai. On the basis of this non-disclosure, which, authorities considered to be a misconduct, a disciplinary proceeding was initiated. It is to be noted that the non-disclosure came to the notice of the authorities when Parvathibai made a complaint about the second marriage. The enquiry was conducted under Central Civil Services (Classification, Control and Appeal) Rules, 1965 (in short the 'Rules'). The Enquiry Officer recorded findings in favour of the respondent. The Disciplinary Authority differed with the findings of the Inquiry Officer and came to hold that second marriage had in fact been performed and accordingly it issued show cause notice to the respondent and eventually came to hold that the respondent was guilty of misconduct and imposed the punishment of removal by order dated 2.4.1996.
8. The High Court was of the view that ordinarily it would have remanded the matter to Tribunal for fresh consideration on merits but it was of the view that this is a fit case where the matter should be remitted to the Appellate Authority for reconsideration with regard to the quantum of punishment. The only basis for coming to the conclusion that the complaint was made by the wife about the alleged second marriage belatedly, and this is not such a misconduct which warrants compulsory retirement before his superannuation.
13. In Union of India and Anr. v. G. Ganayutham (1997 [7] SCC 463), this Court summed up the position relating to proportionality in paragraphs 31 and 32, which read as follows:
"The current position of proportionality in administrative law in England and India can be summarized as follows:
(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into or whether irrelevant matters had been taken into account or whether action was not bona fide. The court would also consider whether the decision absurd or perverse. The court would however go into the correctness of the made by the administrator amongst the various alternatives open to. Nor could the court substitute its decision to that of the administrator. This is the Wednesbury (1948 1 KB 223) test.
(2) The court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational \026 in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU (1985 AC 374) principles.
(3)(a) As per Bugdaycay (1987 AC 514), Brind (1991 (1) AC 696) and Smith (1996 (1) All ER 257) as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done.
(3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.
(4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.
(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of "proportionality" and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14."
14. The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision."
19. Keeping the principle emerging from Union of India and another vs. K.G. Soni (supra), there appears to be no reason to interfere with the order passed by Hon'ble Single Judge and the disciplinary authority, as held by their Lordships of Hon'ble Supreme Court that the courts should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court. The department moved ahead to charge the appellant-petitioner in pursuance of complaint submitted by his own first wife and factum of remarriage has not been denied by the appellant-petitioner. Accordingly, the appellant-petitioner has been punished in pursuance to 1956 Rules (supra).
20. We have been informed that at later stage the appellant-petitioner's wife has withdrawn the complaint but it does not seem to make out a case to dilute the decision taken by the disciplinary authority. The entire allegation against the appellant-petitioner was raised by his own wife being aggrieved with his second marriage. Any withdrawal of complaint, at later stage, shall not dilute the merit of the case, since under Rule 29, the action of the appellant-petitioner constitutes a case of misconduct, which is also punishable under Section 494 of I.P.C.
21. Once the wife brought into notice of the authorities with regard to second marriage of the appellant-petitioner, then at later stage, ordinarily any application moved by the complainant-wife does not seem to make out a case for interference with the decision of the disciplinary authority.
22. Any liberty given by the courts or interference with such matters, may result with ill consequence in due course of time or may break the discipline in police force. It is not a case where misconduct has been committed by not an ordinary government servant. Being a member of disciplined police force, it is always expected that such person shall be abide law and in case, a member of the police or Armed forces is permitted to break the law and abuse the powers conferred by the statutes, it shall send a wrong message to the society.
23. In view of above, we are not inclined to interfere with impugned order passed by Hon'ble Single Judge. The appeal, being devoid of merit, is dismissed accordingly.
24. No order as to costs.
Order Date :- 2.5.2014 Ashok Kr.