HON'BLE SRI JUSTICE K.G.SHANKAR Writ Petition No.3371 of 2008 18-11-2013 Bonthu Narasimha Swamy ... Petitioner Transmission Corporation of Andhra Pradesh Limited,Vidyut Soudha, Hyderabad, rep.by its Chairman and Managing Director,and 4 others.... Respondents Counsel for the petitioners: P. Narasimha Rao Counsel for the Respondents: Mr. P. Laxma Reddy, Standing Counsel for APTRANSCO : ?.Cases referred:
1. (1998) 3 SCC2272. 2002 (4) SLR7603. 2005 (II) DMC8704. 2000 (2) SLR735. 2010 (4) SLR7536. 2009 (1) SLR349HON'BLE SRI JUSTICE K.G. SHANKAR Writ Petition No.3371 of 2008 ORDER
: The termination of the petitioner, through the impugned order of the second respondent dated 29.01.2008, is questioned as illegal and violative of Articles 14 and 21 of the Constitution of India. The petitioner was appointed by the Andhra Pradesh State Electricity Board (APSEB, for short) in 1971. A charge sheet was issued to the petitioner that the petitioner allegedly indulged in the immoral activity of marrying more number of times while his spouse is alive and also for not taking care of his wife-Smt. Satyavathi. A detailed enquiry was conducted. The enquiry officer found him guilty of the Regulation 4 (xxi) of the APSEB Employees Conduct Regulations. Subsequently, show cause notice was issued on 01.10.2007. The petitioner submitted his explanation on 01.12.2007. The final orders were passed on 29.01.2008 dismissing the petitioner from service.
2. When the petitioner filed this writ petition, interim orders were passed by this Court suspending the dismissal order, through interim orders dated 19.02.2008. The interim orders were subsequently made absolute on 11.09.2008. A writ appeal preferred against the interim orders was dismissed.
3. Sri P. Narasimha Rao, learned counsel for the petitioner contended that the charges levelled against the petitioner are not true. He further contended that the petitioner has put up 37 years of service and that it is unjust to dismiss the petitioner from service for bigamy which is not proved.
4. The Regulation 4 (xxi) of the APSEB Employees Revised Conduct Regulations reads: ".No employee who has a spouse living and whose marriage is subsisting shall contract another marriage notwithstanding that such subsequent marriage is permissible under the personal law for the time being applicable to the employee, provided the Board may in its discretion permits such marriage if such marriage is permissible under the personal law of the employee.". Thus, the regulation prohibits bigamous marriage even in relation to Muslims whose customary law permits bigamous marriage.
5. The learned counsel for the petitioner referred to G.O.Ms.No.2, General Administration (SER.C) Department, dated 04.01.1999. It was directed that in order to ensure efficient functioning of the employees and efficient administration, all proven cases of misappropriation, bribery, bigamy, corruption, moral turpitude (sic), forgery and outraging the modesty of women shall be met with the penalty of dismissal from service. The learned counsel for the petitioner submitted that G.O.Ms.No.2 is in violation of statutory regulations and that the same is not binding. He submitted that the counter stated that G.O.Ms.No.2, dated 04.01.1999 was adopted by APTRANSCO, vide T.O.O. (Addl.Secy.) Ms.No.214, dated 11.11.2002. I do not wish to go into this question as the dismissal of the petitioner from service was not merely on account of G.O.Ms.No.2, but on account of Regulation 4 (xxi) of the regulations.
6. The learned counsel for the petitioner also referred to amendment of Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (CCCA Rules, for short), through G.O.Ms.No.458, General Administration (Services-C), dated 22.09.2009 that all proven cases of misappropriation, bribery, corruption, moral turpitude (sic), forgery and outraging the modesty of women, shall be met with punishment of dismissal from service and submitted that both under G.O.Ms.No.2 as well as under the amended Rule 9 of CCCA Rules, it is the proven cases which alone shall be met with the punishment of dismissal. Inter alia, his contention is that bigamy has not been proved in the case of the petitioner. The learned counsel for the petitioner also submitted that amendment of Rule 9 of CCCA Rules does not apply to the case of the petitioner as the Rules were amended on 22.09.2009 whereas the incident alleged against the petitioner was in 2007.
7. I agree with the contention of the learned counsel for the petitioner that the amended Rule 9 that a proven case of bigamy shall be inflected with punishment of dismissal from service does not apply to the case of the petitioner. However, bigamy nevertheless deserves to be punished with the penalty of dismissal if the same is proved even in the absence of G.O.Ms.No.2 and G.O.Ms.No.458 amending Rule 9 of CCCA Rules. Consequently, whether bigamy on the part of the petitioner is made out is the question.
8. It is the case of the petitioner that the petitioner married one Padmavathi and that as Padmavathi was suffering from incurable mental imbalance, with the consent of the parents of Padmavathi, the petitioner obtained customary divorce from Padmavathi and that he subsequently married one Lakshmi.
9. On the other hand, Satyavathi contended that the petitioner originally married the sister of Satyavathi, by name Rama Lakshmi and lived with his wife-Rama Lakshmi at Donkarai, where he was employee. She further claimed that she went to Donkarai in 1981 and that the petitioner initially developed intimacy with her and subsequently married her. Satyavathi claimed that she obtained a supply card bearing No.346490 from the Mandal Revenue Officer, Rajahmundry and household card bearing No.WAP044201300611 from the Mandal Revenue Officer, Alamuru. The declaration form in both the cases was signed by Satyavathi. However, the petitioner is not able to show any reason why Satyavathi could obtain a false supply card and household card showing the petitioner as her husband.
10. It is also contended by the learned counsel for the petitioner that mere supply card and household card describing the petitioner and Satyavathi as man and his wife would not prove the case of Satyavathi that she has been his wife. Indeed, a stray entry in the revenue records cannot prove that the petitioner married Satyavathi. It, however, certainly acts as one of the circumstances to show that the petitioner married Satyavathi.
11. The learned counsel for the petitioner contended that bigamous marriage attracts the gravest punishment of dismissal from service, proof must be equally be strict and that proof by preponderance of probabilities cannot be accepted. On a question of fact, the learned counsel for the petitioner submitted that Satyavathi in her cross-examination before the Enquiry Officer admitted that there was no proof that the petitioner married Padmavathi in 1975. He also pointed out that if the petitioner had married Rama Lakshmi, there is no evidence as to the whereabouts of Rama Lakshmi and children of the petitioner and Rama Lakshmi. His case is that the petitioner never married Rama Lakshmi lest Satyavathi should not have failed to produce such evidence before the Enquiry Officer. So far as the petitioner marrying Rama Lakshmi is concerned, neither the official records show that the petitioner married one Rama Lakshmi nor did Satyavathi establish that the petitioner married Rama Lakshmi. Consequently, the claim of the petitioner that there is no proof that the petitioner married Rama Lakshmi deserves to be accepted.
12. The learned counsel for the petitioner submitted that the petitioner never married Satyavathi, that Satyavathi is the wife of one Balaiah and that she begot two daughters, out of her wedlock with Balaiah. He further submitted that Satyavathi divorced Balaiah and that one of her daughters through Balaiah died, while the other daughter of Satyavathi through Balaiah had been married to already. As much as there is no proof for the marriage of Rama Lakshmi and the petitioner, there is no proof regarding the contention of the learned counsel for the petitioner that Satyavathi divorced Balaiah or that she begot two daughters out of her wedlock with Satyavathi. Satyavathi filed M.C.No.2 of 1994 on the file of the II Additional Judicial First Class Magistrate, Rajahmundry under Section 125 Cr.P.C. against the petitioner herein. The same was dismissed. She also filed a case under the provisions of Protection of Women for Domestic Violence Act, 2005 against the petitioner. That case was also dismissed. In M.C.No.2 of 1994, the petitioner took the clear stand that he did not marry Satyavathi and Satyavathi is not his wife.
13. Added to it, Satyavathi received a legal notice having been described as wife of Manyam Balaiah. In her reply, Satyavathi described herself as wife of Balaiah and daughter of Simhadri. In O.S.No.247 of 1997 on the file of the District Munsif Court, Alamuru by one Relangi Venkata Swamy, Satyavathi was arrayed as first defendant and Satyavathi was described as wife of Balaiah. Satyavathi filed written statement in that suit without denying the fact regarding her description as wife of Balaiah. She also filed chief affidavit in that case as DW.1 describing herself as the wife of Balaiah. Again in A.S.No.42 of 2004 on the file of the Senior Civil Judge, Ramachandrapuram, Satyavathi as the appellant described herself as wife of Balaiah. Even on 19.07.1994 in a sale deed, Satyavathi as vendee described herself as the daughter of Simhadri. It is the contention of the learned counsel for the petitioner that these documents show that Satyavathi was the wife of Balaiah and was not the wife of the petitioner. In view of this overwhelming evidence, I agree that Satyavathi is not the wife of the petitioner, despite the supply card and the household card describing the petitioner as husband of Satyavathi. The question, however, is whether the petitioner was guilty of the charge that the petitioner indulged in marrying more number of times, whether the marriage was with Satyavathi or otherwise.
14. The learned standing counsel for APTRANSCO has pointed out that although the marriage of the petitioner with Satyavathi on 09.08.1982 is not established, the petitioner himself has admitted that he married one Baby Padmavathi on 17.08.1984 and married Lakshmi on 12.12.1999. He also pointed out that the petitioner claimed that he obtained customary divorce from Baby Padmavathi and that neither the customary divorce nor valid divorce is proved, so much so, the marriage with Lakshmi on 12.12.1999 is tantamount to indulging in bigamy. The learned counsel for the petitioner placed reliance upon Ministry of Finance v. S.B. Ramesh1. A question came up for consideration as to whether the living relationship between the male government servant and a lady amounts to misconduct. The Supreme Court observed that it would be a misconduct unbecoming of a government servant. In Shahjahan Khan v. State of U.P.2 a Division Bench of Allahabad High Court observed that unless the evidence proves the second marriage, misconduct cannot be read out merely because the employee lived with another woman for some time and that such conduct on the part of an employee would not be treated as misconduct. The learned counsel for the petitioner contends that assuming that the petitioner lived with Satyavathi, it is not tantamount to misconduct on the part of the petitioner. In Surekha Murdangia v. Rmahari Murdangia3 a learned single Judge of Orissa High Court observed that performance of Saptapadi around sacred fire is an essential element of solemnization of marriage under the Hindu Law and that in the absence of evidence in that regard, bigamy would not be made out u/s.494 r/w Sec.109 IPC.
15. The learned counsel for the petitioner contented that the marriage between the petitioner and Satyavathi has not been established by any evidence and that it cannot be treated as a marriage. As already pointed out, there is overwhelming evidence that Satyavathi was the wife of Balaiah and that she perhaps divorced Balaiah. It is also found that mere supply card and household card cannot clinchingly show that the petitioner was the husband of Satyavathi.
16. In Bharat Singh v. State of Haryana4 a learned single Judge of Punjab and Haryana High Court observed that the order of punishing authority must show application of mind and reasons for conclusions reached as to why the disciplinary authority wants to deprive the delinquent from pension which is a civil right and not a bounty. It was also observed that regard may be had to the length of service of the delinquent and the right to pension of the delinquent employee. In the present case, the learned counsel for the petitioner submitted that the petitioner has put up 37 years of service and that the case of the petitioner deserves to be treated leniently. I am afraid that once bigamy is established, there is no alternative for the disciplinary authority except to impose the penalty of dismissal from service. I consider it to be appropriate punishment for bigamy. The real question, therefore, is whether the petitioner has been found to be guilty of bigamy. Once the same is established, I am afraid that the order of dismissal of the petitioner shall be considered to be justified.
17. In Tapinder Singh v. State of Punjab5 a police official was accused of committing bigamy. The delinquent has not disputed his first marriage. Punishment of dismissal from service was ultimately upheld by the learned single Judge of Punjanb and Haryana High Court. It was inter alia observed that the second marriage during the subsistence of first marriage is to be proved before the penalty can be imposed against the delinquent. In Ex-Constable Kulwant Singh v. State of Punjab6 relied upon by the learned counsel for the petitioner, an ex parte enquiry was set aside by a competent Court. In the present case, it is not as though there was an ex parte enquiry. The petitioner was accorded an opportunity to defend himself before the Enquiry Officer. However, the Enquiry Officer concluded that the marriage between Satyavathi and the petitioner has been established. For the reasons already stated, I consider that the department failed to establish the marriage of Satyavathi and the petitioner.
18. However, the petitioner himself has admitted about marrying Baby Padmavathi and subsequent marrying Lakshmi. The petitioner claimed that he divorced Baby Padmavathi because Baby Padmavathi was suffering from incurable mental imbalance. There is no evidence to show that the petitioner obtained customary divorce from Baby Padmavathi. Indeed, the father of Baby Padmavathi deposed in the enquiry admitting of customary divorce. The petitioner, however, is liable to show that such customary divorce is legally acceptable, so much so, it shall be treated as divorce for the legal purposes. The petitioner failed to produce any evidence to show that customary divorce is permitted in this case. Thus, unfortunately, it remained that the petitioner admitted marrying Baby Padmavathi on 17.08.1984 and marrying Lakshmi on 12.12.1999 and also admitted that Baby Padmavathi was alive by the time the petitioner married Lakshmi. Thus, bigamy has been established by the admission of the petitioner itself. The ultimate finding of the Enquiry Officer that bigamy is proved, therefore, does not deserve to be interfered with.
19. Once an employee is found to be guilty of bigamy, I am afraid that the punishment deserves to be his dismissal from service as it is one of the fundamental principles of governance that no employee shall contract another marriage with a person while the first spouse is alive and the marriage with the first spouse is subsisting. I, therefore, see no reason to interfere with the punishment imposed against the petitioner.
20. Consequently, I see no merits in this writ petition. The writ petition is accordingly dismissed. No costs. Miscellaneous Petitions, if any, pending in this writ petition, shall stand closed. ________________ K.G. SHANKAR, J Date:
18. 11.2013