IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10538 of 2002 CHITRANJAN KUMAR SINGH, aged about 35 years, son of Late Girish Prasad Singh, resident of Village Ramachua, PS Shyambhuganj, District Banka …………….. Petitioner Versus 1. THE STATE OF BIHAR 2. The Director General cum Inspector General of Police, Bihar Patna 3. The Inspector General (M.P.), Bihar, Patna 4. The Deputy Inspector General (B.M.P.), North Range, Muzaffarpur 5. The Commandant, B.M.P. 9 Jamalpur 6. Shri Shyam Narayan Ojha, the Enquiry Officer, Inspector, B.M.P.-9, Jamalpur …………………Respondents ----------- 3. 27.02.2009 Heard leaned Counsel for the petitioner and the learned Counsel for the State. The petitioner, a Constable in BMP 9, was proceeded with departmentally when he was also placed under suspension on 10.6.1996 on allegation made by the father-in-law of his first wife that the petitioner had remarried while he had living spouse from the first marriage. On close of departmental proceedings and issuance of second show cause notice orders of punishment for discharge from service was passed on 11.6.2001, confirmed by the appellate order dated 12.9.2001 and the order on memorial on 19.2.2002. Learned Counsel for the petitioner submitted that the respondents in their counter affidavit have relied upon Rule 707- A of the Bihar Police Manual which by adoption incorporates Rule 23 of the Bihar Government Servants‟ Conduct Rules, 1976 (hereinafter referred to as „the Rules‟). Rule 23 of the same does 2 not completely prohibit a marriage by a government servant with an earlier spouse living. The Rules itself contemplated acceptability of the same to urge that the Rule was not mandatory. It is next submitted that the petitioner in the writ petition and in the supplementary affidavit has specifically mentioned cases of other Constables who have married second time with an earlier living spouse and who have been awarded far lesser punishment and continued in service. The punishment imposed was excessive. Learned Counsel for the State submits that there is no allegation of any illegality in the departmental proceedings leading to the order of discharge from service and, therefore, this Court in exercise of powers under Article 226 of the Constitution of India may not interfere with the matters of administrative discipline in the Department. Rule 23 (1) and (2) of the Bihar Government Servants‟ Conduct Rules 1976 reads as follows:- “23. Restrictions regarding marriages- (1) No Government servant shall enter into, or contract, a marriage with a person having a spouse living; and (2) no Government servant having a spouse living shall enter into, or contract, a marriage with any person: Provided that the Government may permit a Government servant to enter into, or contract, any such marriage as is referred to 3 in Clause (1) ore Clause (2), if it is satisfied that- (a) such marriage is permissible under the personal law application to such Government servant and the other party to the marriage; and (b) there are other grounds for so doing.” Learned Counsel for the petitioner is right in his submission that the Rules do not create an offence mandatorily prohibiting a government servant from marrying during life time of the first spouse. Sub-clause (b) to Rule 23(2) itself records that this may be permissible if the Government is satisfied that there are other grounds for doing so. The provision was therefore directory. The enquiry officer in his report dated 2.9.2000 takes note of the grounds urged by the petitioner. It proceeds to hold that instead of remarrying for alleged reason of mental ailment of the first spouse the petitioner should have had her medically attended to rather than remarrying. Once the “other grounds provided for in Rules 23” were urged by the petitioner, that aspect of the matter was required to be examined by the disciplinary authority with regard to the invoking of/or inapplicability of the Rules. The disciplinary authority by his order dated 8.6.2001 has likewise proceeded to hold that it was not sufficient that the first wife of the petitioner was mentally ill and that the petitioner was being ridiculed for the ailment of his first wife, the petitioner should have gone in for treatment rather than remarried. 4 The respondents had a statutory power to be exercised in the manner provided for by the statute. What may be the standard morality acceptable to the respondents is hardly of any relevance. The statutory authority cannot ignore its duty to decide in accordance with the statutory provision when other grounds for the marriage were pout forth. There is no finding that they do not constitute sufficient material for invocation of the Rules. The respondents have not denied the contention of the petitioner that in similar circumstances others who have remarried have been visited with lesser punishment like censure. This Court, therefore, finds the order of discharge dated 11.6.2001 to be unsustainable in law. It is, accordingly, set aside. As a consequence, the appellant and the memorial orders dated 12.9.2001 and 19.2.2002 are also set aside. Learned Counsel for the petitioner next urges the claim of back wages which is denied by the respondents on the principles of „no work no pay‟. In the facts and circumstances of the case, when this Court quite apart from the issue of non exercise of powers appropriately under Rule 23(2)(b) also comes to the finding that the punishment is excessively harsh in the background of nature of the allegation which had nothing to do with the discharge of his duties as a government servant, is not persuaded to remand the matter to the authorities on the question of back wages but 5 considers it proper to direct that the petitioner shall be entitled for 50 % back wages and shall stand reinstated in service with continuity of service and seniority. The writ application stands allowed. Snkumar/- (Navin Sinha,J.)