1. The applicant, a Constable in Delhi Police has assailed and order dated 1.5.96 whereby he has been dismissed from service. The appeal preferred was also rejected vide order dated 23.9.96 as well the revision petition on 6.9.98 and lastly the review petition was also rejected on 30.10.98. All these orders are assailed in the present OA.2. The brief facts leading to the case are that the applicant had been proceeded against in a preliminary enquiry on the ground that he had committed a misconduct under Rule 21 of the CCS (Conduct) Rules, 1964 as he had married to one Ms. Suresh Bala on 24.9.90 and also contracted another marriage with Ms. Sudesh on 29.5.91 and had concealed the fact of marriage with Sudesh from Suresh Bala and managed to get the marriage with Suresh Bala registered in the Marriage Office at Tis Hazari on 25.6.91. The applicant was also alleged to have induced Ms.
Anita to have matrimonial relations with him. It is further alleged that the applicant had provided unauthorised coaching to Suresh Bala and Anita and also took certain money from Anita and wrote love letters to her. On the basis of this a departmental enquiry was ordered where the following charge was framed.
"1. That you are married to Ms. Suresh Bala daughter of Jabbar Singh on 24.9.90 and contracted another marriage with a girl namely Ms.
Sudesh D/o Jagram on 29.5.91 against the provision of Rule 21 of CCS (Conduct) Rules, 1964.
2. That you concealed the fact of your marriage with Ms. Sudesh D/o Jagram from Ms. Suresh Bala and got your marriage with the later registered before marriage office, Tis Hazari, Delhi on 25.6.91.
3. That you are guilty of moral turpitude in that you concealed the fact of marriage with Ms. Suresh Bala and Ms. Suresh Bala from Ms.
Anita and induced her to have matrimonial relation with you. Having been deceived as such she under the euphoria of these intending relations wrote you love letters and also parted with cash and material. You are also guilty of cheating for causing loss of her reputation and also pecuniary looses.
4. That you provided coaching to Ms. Suresh Bala and Anita without the approval of your competent authority in University ground, Delhi University, Delhi where you were detailed to undertake practice in sports in official discharge of your duties and thus guilty of grave misconduct indiscipline and dereliction of duty.
The above act of you Const. Narinder Kumar Khatri, No. 7284/DAP now (157/RB) amounts to grave misconduct, indiscipline, negligence, dereliction of official duties and unbecoming of a police officer on your part which render you liable for punishment under 21 of D.P. Act, 1978." 3. On the basis of the material produced in the departmental enquiry the enquiry officer held the applicant guilty of the charge of contracting marriage with Sudesh despite being married to Suresh Bala.
The charge of getting marriage registered on 25.6.91 was also proved.
The charge regarding inducing Anita to have matrimonial relations was not substantiated and the charge regarding writing love letters to Anita and parting here with some cash and providing coaching to Anita without the approval of the competent authority was also substantiated.
The disciplinary authority keeping in view the gravity of misconduct and moral turpitude involved imposed and extreme punishment of dismissal upon the applicant, which was maintained by the appellate authority by a reasoned order and also by the revisional authority. The applicant has assailed the impugned orders on the ground that as in the charge the applicant had already been shown to be guilty of moral turpitude the enquiry officer had pre-determined his guilt before recording finding. It is further contended that admittedly the preliminary enquiry (PE) was held and despite exhibiting PE report and statements therein the same were not furnished to the applicant, resulting in denial of a reasonable opportunity. It is further contended that the applicant was alleged to have committed a cognizable offence in discharge of his duties and in relation with the public as such in absence of prior approval of the Additional Commissioner of Police the enquiry is vitiated. Another ground taken by the applicant's counsel Sh. Arun Bhardwaj to assail the proceedings is that the marriage which had been registered by Suresh Bala before the marriage office on 25.6.91 has become void ab initio as the same was declared null and void by the Court of Sh. S.N. Aggarwal, Additional District and Sessions Judge under Section 11 of the Hindu Marriage Act.
According to him, if the first marriage as alleged with Suresh Bala is not legally proved the applicant cannot be charged for contracting another marriage with Sudesh. It is further contended that in absence of any proof of solemnisation of marriage as mandated under Section 7 of the Hindu Marriage Act there is no evidence in the enquiry to substantiate the charge of contracting second marriage against the applicant and the case is of no evidence.
4. The respondents in their reply refuted all the contentions of the applicant and further stated that the enquiry had been conducted in accordance with the principles laid down and no prejudice had been caused to the applicant. According to the respondents' Counsel Sh.
Rajinder Pandita there is sufficient evidence on record to indict the applicant in the alleged misconduct and it is not proper for the Tribunal to assume the role of an appellate authority and to re-appraise the evidence by way of judicial review. According to the respondents Court is not a fact finding body and the rule is pre-ponderence of probability. According to the respondents there is no need to prove the solemnisation of marriage as registration of marriage is an admission by the parties to the marriage held previously according to the Hindu Rights and such marriage is valid under the said Marriage Act. It is further contended that under Section 11 the decree of dissolution of marriage had been passed on the ground that the applicant had contracted a marriage and concealed from Suresh Bala.
Referring to certain documents filed by Suresh Bala in her department, i.e., LIC, it is contended that this is an ample proof that the marriage had taken place. According to them the dissolution of marriage later on and its being void ab initio had not affected the charges levelled against the applicant and the fact that the marriage had taken place with Suresh Bala on 24.9,90 is proved beyond doubt and the factum of second marriage on 29.5.91 is amply proved from the testimony of Sudesh white examined as PW in the enquiry. It is contended that for the purpose of departmental enquiry the exact proof of solemnisation of marriage in the form of 'saptbadi' is not necessary and the same is to be tendered in a criminal trial relating to an offence under Section 494 IPC. It is further contended that the charge was proved against the applicant on sufficient evidence and the marriage of applicant is admitted by PW-1 of the applicant.
5. The applicant in his rejoinder re-iterated his pleas taken in the OA and also introduced a defence that during the intervening period of the year 1991, when the marriage was registered in the Court the applicant was suffering from 'Epilepsy' and this had affected his mental faculty and he had signed the marriage certificate without knowing about its contents. It is also contended that the applicant as a matter of compassion with a view to help a destitute lady who was pregnant and with a view to upkeep her repute signed the marriage certificate without getting married with Suresh Bala.
6. We have carefully considered the rival contentions of the parties and also perused the departmental record produced by the respondents.
7. It has been firstly contended that before the departmental enquiry of PE was held against the applicant where a cognizable offence had been made against the applicant in discharge of his duties in relation with public. As in absence of the prior approval accorded by the Additional Commissioner of Police before ordering the enquiry, the proceedings are vitiated in view of the provisions of Rule 15(2) of the Rules. We have perused the record and find that the allegations levelled against the applicant though disclosed cognizable offence under Section 494, IPC, but the applicant was not discharging his official duties and the same was not in relation with the public. The allegations are regarding contracting second marriage and also cheating Ms. Anita which fall beyond the ambit of discharge of official duties as such this contention of the applicant is not legally tenable and the same is rejected.
8. It has been next contended by the applicant's Counsel that a PE was held before the departmental enquiry by Women Inspector Kamala Meena as well as by Ravinder Manchanda, who had submitted their reports to the disciplinary authority on which the enquiry was proceeded. According to him in the summary of allegation the report of the PE had not been listed as a document. The applicant contends that during the examination of PE officer the said report was exhibited by the EO resulting in denial of a reasonable opportunity to the applicant. On our query, the learned Counsel of the applicant has failed to show any proof that he had demanded the copy of PE report either from the enquiry officer or from the disciplinary authority. The enquiry officer in his finding had also while dealing with the contention of the applicant stated that if the report was of such an importance to the applicant he could have demanded the same. We also find that despite being exhibited the report of the PE had not at all been relied upon by the enquiry officer to come to the conclusion of guilt against the applicant. In our considered view under Rule 16(1) of the Delhi Police (Punishment and Appeal) Rules, 1980 only relied upon documents are to be furnished to the delinquent police official. If the document is not relied upon the same is not to be provided to the applicant. Apart from it, in absence of any request of the applicant for the document the right of cross-examination of the applicant cannot be said to be affected. Every procedural illegality would not vitiate the proceedings, unless it is shown that a grave prejudice has been caused to the delinquent official Denial of the Copy of the PE report and the statements recorded therein would not vitiate the enquiry and also would not be in violation of the principles of natural justice unless the delinquent official makes a demand for the same. In this view of ours we are fortified by the ratio of the Apex Court is State of U.P.v. Shatrughan Lal, JT 1998(6) SC 55=1999(1) SLJ 213 (SC). The applicant had miserably failed to show any prejudice caused to him due to non-supply of the PE report and also to show that the same had been relied upon to hold him guilty of the charge. As no prejudice has been caused, the non-supply would not vitiate the proceedings. In this view of ours we are fortified by the ratio of the Hon'ble Supreme Court in State Bank of Patiala and Ors. v. S. K. Sharma, JT 1996(3) SC 722. The contention of the applicant, in these circumstances, is rejected.
9. The next contention of the applicant is that the enquiry officer while issuing summary of allegation to the applicant and thereafter framing a charge had already held the applicant guilty of the moral turpitude by recording such facts showing his arbitrariness and pre-determined mind to hold the applicant guilty of the charge. We have carefully gone into this contention of the applicant and are of the considered view that merely stating that the applicant is guilty of moral turpitude has not reflected the ultimate finding of the enquiry officer. The expression 'guilty' is not used for arriving at a pre-decision to hold the applicant guilty of the charge but it is by way of alleging a misconduct against the applicant. Apart from it, this is not a case of the applicant that despite writing guilty in the charge he had been deprived of a reasonable opportunity to produce his defence. We find from the evidence of the enquiry officer that after recording the prosecution evidence sufficient opportunities had been afforded to the applicant to produce his defence by way of examining defence witnesses and filing a written statement of defence and thereafter the conclusion had been arrived at by the enquiry officer.
In our considered view the aforesaid mentioning of the word 'guilty' in the charge has not at all prejudiced the applicant and as such this contention of the applicant is also rejected.
10. It has been next contended that the real wife of the applicant is Ms. Sudesh with whom he had married on 29.5.91 in accordance with the Hindu Rights and the marriage alleged to have been contracted with Suresh Bala on 24.9.90 has not been proved as the prosecution had not brought on record any proof of solemnisation of marriage which is an essential ingredient in the form of 'saptbadi' as provided under Section 7 of the Hindu Marriage Act. To support his contention the applicant's counsel relied upon the ratio of the Apex Court in Kanwal Ram v. Himachal Pradesh Administration, AIR 1966 SC 614 where in reference to an offence under Section 494, IPC it has been observed that non-proof of essential ceremony like 'saptbadi' in the case of a Hindu. Charge of bigamy cannot be proved. The applicant has also relied upon the ratio of Bhaurao v. State of Maharashtra, AIR 1965 SC 1564, where it has been held that for the purpose of offence under Section 494 the marriage should be proved with reference to solemnisation, i.e., ceremony, including 'saptbadi.' Lastly, on this issue the learned Counsel of the applicant relied upon a ratio of the High Court in M.S.Mann v. Union of India, 1976( 1) SCR 350 to contend that it is beyond the jurisdiction of the enquiry officer to go into the question of civil rights of the applicant, i.e., the factum of marriage. On the other hand the respondents' Counsel Sh. Rajinder Pandita has drawn our attention to a ratio of the Hon'ble Apex Court in State of Karnataka and Anr. v. T. Venkataramanappa, 1996(6) SCC 455 wherein the petitioner who was acquitted from the charge under Section 494 IPC on the ground that the solemnisation of marriage had not been proved the Apex Court had modified the orders of the Tribunal and allowed the enquiry to be continued by observing that under Rule 28 of the Karnataka Civil Services Rules strict standards as would warrant conviction for bigamy under Section 494 IPC may not, to begin with, be necessary. We have given careful consideration to the contention of the rival parties and also gone through the record. No doubt, it is true that the applicant had filled up the marriage form on 25.6.91 where it is stated that the applicant had married Suresh Bala on 24.9.90. The fact of the applicant applying for the marriage and getting the form filled is proved by the testimony of PW8, UDC of marriage branch Sh.R. P. Garg who had stated at serial No. 1255 of the register the marriage of applicant with Suresh Bala was shown to be solemnised on 24.9.90 is registered on 27.6.91 instead of being on 25.6.1991. There were signatures and photographs of the applicant and Suresh Bala on the file. There were also figuring the signature of Registrar on the marriage. We also find from the departmental record that Suresh Bala had written a letter to LIC on 17.7.91 requesting for change in status after marriage and further stating that as she had been married to the applicant on 24.9.90 her name in the official record be changed from Suresh Bala to Suresh Khatri. We also find from the record that Ms. Suresh Bala had filed a petition before the Additional District and Sessions Judge for dissolution of marriage under Section 11 of the Hindu Marriage Act by filing an affidavit that the applicant had committed fraud as he was already married and having wife and child. HMA-477/93 was filed by Ms.
Suresh Bala and the applicant was the respondent therein. Vide a decree dated 4.8.94 the marriage between the applicant and Suresh Bala was declared null and void on the basis of an exparte decree as the applicant failed to turn up. We have perused Section 11 of the Hindu Marriage Act where for a nullity of marriage being void Clauses 1, 4 and 5 of Sections of the Hindu Marriage Act are provided. We have also seen Section 5 and to our mind the decree in this case had been passed on the ground that one of the parties of the marriage had a spouse living at the time of the marriage. On this ground the marriage was dissolved. Thereafter, Suresh Bala had written to the LIC for change of her name on the basis of the decree of dissolution of marriage. While going through the findings of the enquiry officer and particularly the testimony of Woman Constable Munesh PW-9 who is the sister of Suresh Bala deposed that Suresh Bala had already died. The applicant reached their house and desired to marry Suresh Bala. It was further contended that in June, 1993 she was further married to one Amrish Kumar. While going to the testimony of DW-1 Ajit Kumar Sankla who was a witness of 'the applicant it had come on record that in April-May, 1992 the witness came to know about the marriage of he applicant with Suresh Bala from the certificate submitted by her. According to him he was told by Suresh Bala that she had solemnised marriage with Narender Khatri to save her name and reputation as she was pregnant. We are of the considered view that the ratio cited by the applicant's counsel is not applicable in the facts and circumstances of the case as solemnisation of the marriage is to be proved according to the Hindu Rights, for the purpose of criminal proceedings for an offence under Section 494, IPC. In the departmental and as per Rule 20 of the Delhi Police Rules ibid the strict rule of evidence and Cr. PC are not applicable and the rule is pre-ponderence of probabilities. Apart from it, the marriage of the applicant with Sudesh is not disputed and as admitted by the applicant himself by contending that she is the only wife of the applicant and as the marriage contracted to marriage certificate is dissolved the marriage becomes void ab initio and he cannot be alleged to have contracted a second marriage, making him liable for any misconduct under Rule 21 of the CCS (Conduct) Rules, 1964. We do not agree with the contention of the applicant. It is not in dispute that the marriage was contracted by the applicant and got registered with the marriage office and at the time of filling up the requisite form it had been stated that the marriage had already been solemnised on 24.9.90 and as such on the basis of the photographs attached therein and on voluntary disclosure the marriage got registered. Later on the dissolution of marriage is not on the ground of non-performance of essential ceremony like 'saptbadi' or non-solemnisation of the marriage. But the marriage has been dissolved on the petition of Suresh Bala on the ground that the applicant was having one spouse living at the time of contracting marriage with the applicant and getting it registered. The important ingredient for a misconduct under Section 21 is that the delinquent Government servant had contracted second marriage despite existence of the first marriage.
In the instant case the marriage with Sudesh is proved and admitted by the applicant and the fact that he married Suresh Bala on 24.9.90 is admitted even by the applicant at the time of getting the marriage registered. The fact of solemnisation of marriage though not proved from the ceremony of 'saptbadi' as prescribed under Section 7 of the Hindu Marriage Act but yet from the conduct of the applicant as he himself voluntarily filled up the form is sufficient for the purpose of departmental enquiry to come to the conclusion of a misconduct against the applicant regarding contracting second marriage. In this view of ours we are supported by the ratio of the Apex Court in T.Venkatramanappa's case (supra) where the strict proof of solemnisation of marriage was not considered as an impediment for dealing with the petitioner in the departmental enquiry. Apart from it, the defence of the applicant is also that he under the fit of mental deformity and with a view to save the reputation of Suresh Bala signed the marriage certificate is indirectly an admission of the applicant with regard to the factum of marriage with Suresh Bala. Apart from it, the medical record produced by the applicant does not inspire confidence as the applicant was having Epilepsy from the year 1988 he was treated in a Government hospital and thereafter in 1990 as well as 1991 when the alleged marriage had taken place and registered there is no medical certificate issued from the Government hospital and rather a private medical certificate is provided. It is also pertinent to mention that during this period the applicant continued to perform his duties. In this conspectus we have no hesitation to hold that the aforesaid plea of the applicant of medical unfitness on the basis of Epilepsy is fabricated and an after thought and is liable to be rejected.
Furthermore, this plea had been introduced by the applicant only in the appeal and before that the same had not at all been agitated during the course of the departmental enquiry. This has been done to create a defence by the applicant but is of no avail to him. From the perusal of the evidence recorded during the course of the enquiry we are satisfied that sufficient evidence has been adduced to indicate conclusively towards the guilt of the applicant and the material brought on record is indicative towards the misconduct of the applicant of contracting second marriage which is a misconduct provided under the CCS (Conduct) Rules, 1964. The Enquiry Officer on the basis of this evidence had rightly held the applicant guilty of the charge. The contention of the applicant that this is a case of no evidence is not legally sustainable. Apart from it, as laid down in N. Rajarathinam v. State of Tamil Nadu and Anr.,B. C. Chaturvedi v. Union of India and Ors., JT 1995(8) SC 65 the jurisdiction of the Tribunal in judicial review is limited and the evidence cannot be re-appreciated and a conclusion different from the departmental authorities cannot be arrived at. On the principle of pre-ponderence of probabilities the enquiry is to be held.11. We also agree with the contention of the respondents that the registration of marriage is valid marriage as provided under the Special Marriage Act and the same is sufficient to indicate towards the guilt of the applicant.
12. It is lastly contended that the disciplinary authority as well as the appellate authority have not applied their mind to the contentions of the applicant and punished him and rejected his appeal without recording reasons. We have perused the order of the disciplinary authority as well as the appellate authority. In our view despite a detailed finding given by the enquiry officer the disciplinary authority has also recorded reasons in support of the order. The appellate authority has taken care of all the contentions of the applicant before maintaining the punishment. The applicant took resort to the ratio of this Tribunal in OA-421/98, Constable Vijay Singh v.Delhi Administration and Anr., to contend that the charge of contracting second marriage is not the gravest act of misconduct to warrant an extreme punishment. We do not agree with the contention of the applicant and relying upon the ratio of the Full Bench decision of this Tribunal (PB) in Virender Singh v. Commissioner of Police (OA No.139/92 and batch) decided on 28.7.99, wherein it has been held that a single act of misconduct involving moral turpitude is a grave misconduct and for which the penalty of dismissal is appropriate. In our view, the disciplinary authority has already recorded sufficient reasons and regarding the misconduct of the applicant observed the same to be unimaginable involving moral turpitude awarded the punishment of dismissal and the same has been maintained by the appellate authority.
There is no legal infirmity with regard to the quantum of punishment awarded to the applicant.
13. No other valid legal grounds have been taken by the applicant to assail the impugned orders.
14. In the result, we find no merit in the OA and the same is dismissed, but without any order as to costs.