Lakshimi Narayan Singh. Vs. State of Bihar, and ors. - Court Judgment

Excerpt:
[d. k. jain ; h. l. dattu, jj.] - hindu marriage act, 1955 - section 13b - divorce by mutual consent -- subsequently, in 2001, the parties filed a petition under section 13b of the act before the district court, gurgaon, for dissolution of the marriage by grant of a decree of divorce by mutual consent. (b) whether the court can grant a decree of divorce by mutual consent when the consent has been withdrawn by one of the parties, and if so, under what circumstances. 13b. divorce by mutual consent. 6) admittedly, the parties had filed a petition for divorce by mutual consent expressing their desire to dissolve their marriage due to temperamental incompatibility on 17.08.2001. on the question of whether one of the parties may withdraw the consent at any time before the actual decree of divorce is passed, this court held if the petition is not withdrawn in the meantime, the court shall ... pass a decree of divorce ...". secondly, the court shall be satisfied about the bona fides and the consent of the parties. if there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. on 9-1-1985, the husband and wife together moved a petition under section 13-b of the act for divorce by mutual consent. the court recorded statements of the parties. in appeal, the high court observed that the spouse who has given consent to a petition for divorce cannot unilaterally withdraw the consent and such withdrawal, however, would not take away the jurisdiction of the court to dissolve the marriage by mutual consent, if the consent was otherwise free. the issue that came up for consideration before this court was, whether a party to a petition for divorce by mutual consent under section 13-b of the act, can unilaterally withdraw the consent and whether the consent once given is irrevocable. if petition for divorce is not formally withdrawn and is kept pending then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent. in our view it is only the mutual consent of the parties which gives the court the jurisdiction to pass a decree for divorce under section 13-b. so in cases under section 13-b, mutual consent of the parties is a jurisdictional fact. the court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent." the petition is not withdrawn by either party at any time before passing the decree; the most important requirement for a grant of a divorce by mutual consent is free consent of both the parties.1. the sole petitioner laxmi narayan singh died during the pendency of the writ application on 18th of july, 1999. he was substituted by his widow usha devi on the basis of an i.a. no. 12712 of 1999, which was allowed on 22.11.1999.2. when the writ application was initially filed by the erstwhile employee, challenge was to the order of dismissal passed against him in terms of anneuxre-3 dated 16.2.1994 as well as the order passed in appeal by the dig, tirhut range, contained in annexure-4, which has upheld the order of dismissal of the disciplinary authority. 3. the original petitioner was appointed as a constable under the respondent state of bihar on 9.12.1980. he worked in that capacity. according to the averments in the writ application he proceeded on 6 days casual leave on 23.9.1991. he had to report back on 30th september, 1991 but as he was attacked by a severe pain in his back on 24.9.1991 he did not report back for duty but sent an application for extension of leave with medical certificate on 27.9.1991.4. on 27.9.1991 itself petitioner stood convicted on charge of murder by the trial court and sentenced to undergo imprisonment for life. petitioner filed appeal against the said conviction which finally came to be decided in favour of the petitioner and he was acquitted by the high court on 19.4.1994.5. the prolonged absence of the petitioner without information of the kind led to initiation of a departmental proceeding no.14 of 1992. petitioner was served with a charge contained in annexure-1/2 to which he responded by showing that since he has already filed appeal before the high court he is awaiting a favourable decision in this regard and the authorities should await the outcome of the said appeal. however, the disciplinary authority not being convinced with the explanation or request proceeded with the matter.6. enquiry was held. evidence led which established the facts that petitioner had absented himself without proper authorization for a long period of time and had also suppressed this fact that he was an accused in a serious case of murder and trial was going on. at no point of time the employee in question informed the authorities about the involvement in a criminal case, his trial and conviction and transportation for life thereafter on the basis of finding recorded by the trial court.7. petitioner was given second show cause against the proposed punishment in which he took a defence that the so-called allegation with which he has been alleged, arose out of a domestic quarrel, which has nothing to do with his service. he never expected to be convicted in the said case and all these factors were reasons why the petitioner did not inform the authorities about the case or his conviction. the disciplinary authorities were not satisfied because it did emerge during the course of enquiry that petitioner was made an accused in the said case in the year 1979 i.e. prior to his enrolment in the police force and said facts were suppressed for gaining employment under the state. however, all these facts emerged in the background that the petitioner stood convicted and sentenced to life.8. many submissions have been made by learned senior counsel representing the erstwhile petitioner and now the wife of the deceased who is carrying on the litigation. a grievance was raised that the husband of the petitioner was not paid subsistence allowance during the course of suspension and therefore any punishment imposed by the disciplinary authority was required to be interfered with. the husband of the petitioner was not given proper opportunity to defend himself in the circumstance that he was in judicial custody and that the petitioner was not supplied all the materials and therefore could not effectively defend himself while being in judicial custody.9. whatever be the legal submissions made at the bar, the fact is that the order of punishment contained in anneuxre-3 came to be passed after a regular departmental proceeding before the husband of the petitioner came to the high court. from the material on record it is evident that petitioner's husband was an accused in a serious offence even before he could be employed as constable and such a vital fact was suppressed from the respondents at the time of his engagement. even after the petitioner was appointed on the post of a constable he did not inform any of the authorities and obviously 6 days' casual leave which was obtained by the petitioner was in the background that he had to personally appear before the trial court at the fag end of the trial and before pronouncement of the judgment and sentence by the trial court. since the petitioner was taken into custody after conviction before the period of casual leave expired, obviously he could not report back on duty and all these facts tumbled out once the petitioner was sent to jail and when he did not report for duty for a long period of time.10. in the above stated circumstance and background and the facts not being in dispute, the nicety of law is not going to help the present petitioner in any manner from begetting benefit of interference with the order of punishment of dismissal passed by the disciplinary authority on the basis of the findings which were arrived at by the enquiry officer. even otherwise the factual matrix is not in dispute and therefore it cannot be said that the reason or the basis for passing of the order of dismissal was on imaginary or make-belief ground. in the opinion of this court there was a serious omission by the erstwhile employee to warrant the kind of punishment which came to be imposed upon him.11. no interference is warranted with the impugned order in the above stated background.12. the writ application is dismissed as being devoid of merit.

Judgment:
1. The sole petitioner Laxmi Narayan Singh died during the pendency of the writ application on 18th of July, 1999. He was substituted by his widow Usha Devi on the basis of an I.A. No. 12712 of 1999, which was allowed on 22.11.1999.

2. When the writ application was initially filed by the erstwhile employee, challenge was to the order of dismissal passed against him in terms of Anneuxre-3 dated 16.2.1994 as well as the order passed in appeal by the DIG, Tirhut Range, contained in Annexure-4, which has upheld the order of dismissal of the disciplinary authority.

3. The original petitioner was appointed as a constable under the respondent State of Bihar on 9.12.1980. He worked in that capacity. According to the averments in the writ application he proceeded on 6 days casual leave on 23.9.1991. He had to report back on 30th September, 1991 but as he was attacked by a severe pain in his back on 24.9.1991 he did not report back for duty but sent an application for extension of leave with medical certificate on 27.9.1991.

4. On 27.9.1991 itself petitioner stood convicted on charge of murder by the trial court and sentenced to undergo imprisonment for life. Petitioner filed appeal against the said conviction which finally came to be decided in favour of the petitioner and he was acquitted by the High Court on 19.4.1994.

5. The prolonged absence of the petitioner without information of the kind led to initiation of a departmental proceeding No.14 of 1992. Petitioner was served with a charge contained in Annexure-1/2 to which he responded by showing that since he has already filed appeal before the High Court he is awaiting a favourable decision in this regard and the authorities should await the outcome of the said appeal. However, the disciplinary authority not being convinced with the explanation or request proceeded with the matter.

6. Enquiry was held. Evidence led which established the facts that petitioner had absented himself without proper authorization for a long period of time and had also suppressed this fact that he was an accused in a serious case of murder and trial was going on. At no point of time the employee in question informed the authorities about the involvement in a criminal case, his trial and conviction and transportation for life thereafter on the basis of finding recorded by the trial court.

7. Petitioner was given second show cause against the proposed punishment in which he took a defence that the so-called allegation with which he has been alleged, arose out of a domestic quarrel, which has nothing to do with his service. He never expected to be convicted in the said case and all these factors were reasons why the petitioner did not inform the authorities about the case or his conviction. The disciplinary authorities were not satisfied because it did emerge during the course of enquiry that petitioner was made an accused in the said case in the year 1979 i.e. prior to his enrolment in the police force and said facts were suppressed for gaining employment under the State. However, all these facts emerged in the background that the petitioner stood convicted and sentenced to life.

8. Many submissions have been made by learned senior counsel representing the erstwhile petitioner and now the wife of the deceased who is carrying on the litigation. A grievance was raised that the husband of the petitioner was not paid subsistence allowance during the course of suspension and therefore any punishment imposed by the disciplinary authority was required to be interfered with. The husband of the petitioner was not given proper opportunity to defend himself in the circumstance that he was in judicial custody and that the petitioner was not supplied all the materials and therefore could not effectively defend himself while being in judicial custody.

9. Whatever be the legal submissions made at the bar, the fact is that the order of punishment contained in Anneuxre-3 came to be passed after a regular departmental proceeding before the husband of the petitioner came to the High Court. From the material on record it is evident that petitioner's husband was an accused in a serious offence even before he could be employed as constable and such a vital fact was suppressed from the respondents at the time of his engagement. Even after the petitioner was appointed on the post of a constable he did not inform any of the authorities and obviously 6 days' casual leave which was obtained by the petitioner was in the background that he had to personally appear before the trial court at the fag end of the trial and before pronouncement of the judgment and sentence by the trial court. Since the petitioner was taken into custody after conviction before the period of casual leave expired, obviously he could not report back on duty and all these facts tumbled out once the petitioner was sent to jail and when he did not report for duty for a long period of time.

10. In the above stated circumstance and background and the facts not being in dispute, the nicety of law is not going to help the present petitioner in any manner from begetting benefit of interference with the order of punishment of dismissal passed by the disciplinary authority on the basis of the findings which were arrived at by the enquiry officer. Even otherwise the factual matrix is not in dispute and therefore it cannot be said that the reason or the basis for passing of the order of dismissal was on imaginary or make-belief ground. In the opinion of this Court there was a serious omission by the erstwhile employee to warrant the kind of punishment which came to be imposed upon him.

11. No interference is warranted with the impugned order in the above stated background.

12. The writ application is dismissed as being devoid of merit.