IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No. 6630 of 2005 ARBIND KUMAR @ ARBIND KUMAR RAI, S/O DINDAYAL RAI, RESIDENT OF VILLAGE- RAJPURA, P.O. – HRIDAY CHAK, P.S. – MEHANDIA, DISTRICT – ARWAL …………… PETITIONER VERSUS 1. THE STATE OF BIHAR, THROUGH THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, PATNA 2. DIRECTOR GENERAL-CUM-INSPECTOR GENERAL OF POLICE, BIHAR, PATNA 3. DIG OF POLICE, MILITARY POLICE, CENTRAL ZONE, PATNA 4. COMMANDANT, BMP-10, PATNA. ……………….. RESPONDENTS ----------- For the Petitioner: Mr. Ram Hriday Prasad, Adv. For the Respondents: Madhukar Mishra, AC to GA-9 ***** 05. 31.03.2011 Heard learned counsel for the petitioner and the counsel appearing for the State. Petitioner has prayed for quashing of Order, dated 08.12.2003, passed by the Commandant BMP- 10, Patna, whereby his all previous increments have been withheld, by way of punishment in a Departmental Proceeding. On account of this punishment, the petitioner has been pushed back to the initial pay-scale of Constable. Appeal preferred against this order before the DIG, Central Zone, BMP, Patna, has also been rejected vide order, dated 11.03.2005. Further prayer of the petitioner is for quashing of the order passed by the Appellate Authority. 2 Petitioner is a Constable, working in BMP-10. A Departmental Proceeding had been initiated against him, receiving a complaint regarding solemnization of second marriage by the petitioner during the life time of his first wife, without any prior permission from the Department. Haridwar Sharma, father-in-law of the petitioner had made this complain, alleging torture of his daughter by the petitioner and demand of dowry. The Departmental Proceeding as alleged by petitioner was conducted in a most illegal manner. Even copy of charge was not supplied to him. No opportunity was assigned to cross-examine the witnesses, their statement were not supplied to him and Departmental Proceeding was concluded awarding punishment of withholding of entire increments and he was brought at the initial pay- scale of Constable. Petitioner had not denied regarding second marriage in his show-cause, but the reason for the second marriage was that even after 10 years of marriage, his first wife could not give birth to a child. His first wife herself pressurized him for second marriage. There was complete denial by the 3 petitioner regarding torture and demand of dowry. This statement made by the petitioner in his show- cause was fully supported by his first wife, Indu Devi, who filed her Affidavit before the conducting Officer. Making similar allegation, a compliant case had also been instituted by the father-in-law of the petitioner. In that case also first wife of the petitioner, namely, Indu Devi, was examined as witness, where she denied the allegations made in the complaint petition regarding torture, demand of dowry and solemnization of marriage by the petitioner against her wishes. Petitioner brought all these documents before the conducting Officer. Petitioner’s case is that without considering these documents, punishment of withholding 15 increments was awarded against the petitioner. The reason behind this punishment was that without seeking permission from the Department, second marriage was solemnized. Permission from Department was mandatory, in case it was a marriage during life time of 1st wife, as per Rule 23(a) of Bihar Government Servant Conduct Rules, 1976 and Rule 707(a) of Bihar Police Manual. Counsel, appearing for the petitioner has 4 submitted that Rule 707A of Bihar Police Manual deals with Bigamous Marriage, which says “No police officer, who has a wife living, shall contract another marriage without first obtaining the permission of the Government.” This provision under the Police Manual is in consonance with Rule 23 of the Bihar Government Servant Conduct Rules, 1976. Rule 23 of Bihar Government Servant Conduct Rules, 1976 restricts second marriage of a Government employee during the lifetime of the first wife. However, proviso to this rule relaxes such restriction in case marriage is permissible under the personal law applicable to such Government servant and in case for some special reason, permission has been taken from the superior officials before contracting second marriage. Petitioner’s case is that proviso B of Bihar Government Servant Rules, 1976 is applicable in his case on account of availability of some special ground for contracting second marriage. Special ground had been disclosed by him in the show-cause and that was also supported by his first wife, filing an affidavit. The conducting officer as well as the Disciplinary Authority did not take notice of Affidavit 5 filed by his wife. Counsel appearing for the petitioner has annexed a copy of order passed in similar Departmental Proceeding against another Constable, in which only punishment of withholding increment for one and half years has been awarded. It has been submitted by the petitioner’s counsel that besides other things, the punishment awarded is disproportionate to the seriousness of the charge, alleged against the petitioner. I find substance in the submission made by the petitioner for the reason that petitioner’s case is fully covered under proviso to Rule 23 of Bihar Government Servant Rule, 1976. There was some special reason for contracting second marriage. His first wife herself has insisted for second marriage as she herself could not bear a child. It is true that petitioner contracted second marriage without any previous permission from the Department, but for similar charge, in case of another Constable (order annexed) only punishment awarded is withholding of increment for one and half years. In that view of the matter, punishment awarded to the petitioner is disproportionate to the charge framed against him. 6 For all these reasons, the impugned orders dated 08.12.2003 and 11.03.2005 is quashed. The matter is remitted back to the authorities concerned for its re-consideration and for passing fresh and final order. The order must be passed by the authorities, considering Rule 23, proviso B to Bihar Government Servant Conduct Rules, 1976 as well as order passed in the similar case by the authorities concerned, which has been annexed by the petitioner as Annexure-10. The Respondents will pass an order within four weeks from the date of production / communication of this order. With the aforesaid observations, this application is allowed. SKM (Mridula Mishra, J.)