IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY FIFTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE Mr. JUSTICE C.V.RAMULU WRIT PETITION No.16348 of 2007 Between: G.M. Rasool s/o G Hussain pera Baheb R/o H. No. Kuragayala Market, Boulivali Masjid Tadipatri, Ananthapur District. ..... PETITIONER AND The Depot Manager, AP State Road Transport Corporation, Tadiptri, Ananthapur District. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue an order or orders more particularly one in the nature of Writ of Mandamus, directing the respondents to reinstate the petitioner into service by holding and declaring that the orders of removal issued in Proc. No. 01/114(3)/98-TDP, dated 18-3-2000 and the Award of the Industrial Tribunal in I.D.No.189/2003, dt 22-12-2006 as illegal and further direct the respondent to reinstate and continue the petitioner in service with full back wages and continuity of service and pass such other order or orders as this Hon'ble Court may deem ﬁt, proper and necessary in the circumstances of the case. Counsel for the Petitioner: Mr. G.VIDYASAGAR Counsel for the Respondent : SMT.W.V.S.RAJESWARI The Court made the following : THE HON’BLE SRI JUSTICE C.V. RAMULU W.P.No.16348 of 2007 ORDER: This writ petition is ﬁled seeking a Mandamus to declare the Order of removal passed by the respondent in Proceedings No.01/114(3)/98-TDP, dated 18-3-2000 and also the Award dated 22-12-2006 in I.D.No.189 of 2003 on the ﬁle of Industrial Tribunal-cum-Labour Court, Anantapur as arbitrary and illegal; consequently to direct the respondent to reinstate the petitioner into service with continuity of service and full back wages. It is the case of the petitioner that he was appointed as Driver in the respondent-Corporation on 1-9-1990. Prior to that, on 15-7-1984 he married one Ghousia Begum. Subsequently, he came to know that she was mentally ill even prior to the marriage and as such, he entered into a ‘Khararunama’ with her on 25-2-1990 stating that he would be paying her maintenance amount regularly and she shall not have any objection for the second marriage. On the same day, i.e., 25-2-1990, he married Rahimoon Bee. Thereafter, on a complaint given by his ﬁrst wife Ghousia Begum, a charge sheet was issued to him on 23-10-1998 stating that he had contracted bigamous marriage with Smt.Rahamathunnisa Begum when his ﬁrst wife-Smt.S.Ghousia Begum is living with two children and he had concealed the fact of the second marriage. He submitted his explanation on 12-11-1998. Not satisﬁed with the said explanation, a regular enquiry was ordered. The Enquiry Oﬃcer conducted the enquiry and submitted his report on 13-1-1999 stating that the charges framed against him were proved. Subsequently, a show cause notice was issued on 14-2-2000 and the order of removal was passed on 18-3-2000. Aggrieved by the said order, he ﬁled an appeal and the appellate authority conﬁrmed the order of removal on 23-9-2000. Challenging the same, he ﬁled a writ petition being W.P.No.22199 of 2000, which was disposed of on 30-4-2003 directing him to approach the Labour Court. Thereafter he ﬁled a claim petition under Section 2-A(2) of the Industrial Disputes Act,1947 and the same was numbered as I.D.No.189 of 2003 on the ﬁle of Industrial Tribunal-cum- Labour Court, Anantapur. After hearing both sides, the Labour Court, by an Award dated 22-12-2006 dismissed his claim petition. Aggrieved by the same, he ﬁled the present writ petition. Learned counsel for the petitioner strenuously contended that the petitioner had already divorced his ﬁrst wife in front of the village elders and then married Rahamathunnisa Begum as per custom. Further, the petitioner contracted the second marriage prior to his appointment as Driver in the Corporation and, therefore, it cannot be said that he had suppressed the facts. Learned counsel also contended that even otherwise, as per the Personal Law, petitioner is entitled to marry more than one woman and, therefore, Regulation 25(1) of A.P.S.R.T.C. Employees’ (Conduct) Regulations,1963 is contrary to the Personal Law. Learned counsel also contended that on 3-2-2002, the ﬁrst wife- Ghousia Bee also executed an agreement stating that she was responsible for losing the job by the petitioner, she never intended that the petitioner should be removed from service and what all she needed is the maintenance from the petitioner and also conﬁrmed the factum of Talaq with the petitioner. As such, the order of removal, which was conﬁrmed by the Labour Court, is contrary to law and is liable to be set aside. Learned standing counsel appearing for the respondent- Corporation supported the impugned Order of removal and stated that the Labour Court has also rightly conﬁrmed the same. The Writ Petition is devoid of merits and is liable to be dismissed I have given my earnest consideration to the respective submissions of the learned counsel on either side and perused the impugned Order of removal, the impugned Award of the Labour Court and other material made available on record. It appears, petitioner joined the service of respondent- Corporation as Driver on 1-9-1990. Prior to that, he married one Smt.Gousiya Begum on 18-7-1984. It is the case of the petitioner that as she was suﬀering from mental illhealth, which is found to be incurable, he had given divorce by pronouncing ‘talak’ before the village elders on 24-2-1990 and also executed ‘Khararunama’ agreeing to pay half of his salary to her towards maintenance, apart from half of the property that would devolve upon him. Thereafter, on the advice of elders and with the consent of his ﬁrst wife, he married Smt.Rahamathunnisa Begum on 24-2-1990. It seems, more than seven years after his appointment in APSRTC, the ﬁrst wife of the petitioner alleged to have sent a complaint dated 21-8-1998 to the Corporation complaining that, though the petitioner agreed to pay half of the salary, paid only Rs.500/- for ﬁve months, but failed to pay the maintenance thereafter. The said complaint is the basis for initiating disciplinary proceedings against the petitioner. Even before the Enquiry Oﬃcer, the ﬁrst wife of the petitioner has not disputed about the execution of ‘Khararunama’ and living separately at her father’s house along with the children. But the charge against the petitioner is that he contracted bigamous marriage with Rahamathunnisa Begum while the ﬁrst wife was living. The petitioner categorically stated that he divorced Smt.Ghousia Begum and married Rahamathunnisa Begum as per custom. Here, it may be noticed that the burden to prove that the petitioner contracted the second marriage while the ﬁrst marriage was subsisting lies on the Corporation. From the material on record, it is seen that the Corporation has not discharged the said burden. It appears, the Enquiry Oﬃcer recorded the statement of the ﬁrst wife of the petitioner and also one C.H.Masthan, Security Head Guard. Smt.Ghousia Begum, ﬁrst wife of the petitioner, did not state that there was no divorce between herself and the petitioner. She merely stated that as per ‘Khararunama’ the petitioner is not paying maintenance amount to her. Even in the complaint sent to the Corporation authorities, she stated the same thing. The other witness-C.H. Masthan has stated that he went to the house of the petitioner and found that Smt.Rahamathunnisa Begum was available in the house and his enquiries revealed that the petitioner married her, as his ﬁrst wife’s health was not good. During the enquiry, the petitioner’s statement was also recorded, wherein he stated that he married Smt.Ghousia Begum on 18-7-1984 and they were blessed with two children. Since she was unwell, he took her to Bangalore for treatment, but her illhealth was not cured. Thereafter, he married Smt.Rahamathunnisa Begum with the consent of his ﬁrst wife. He also spoke about the execution of Khararunama etc. From the above, it is clear that there is a total dearth of evidence to bring home the charges that the petitioner had contracted the second marriage during subsistence of ﬁrst marriage and he had concealed the factum of second marriage. It is also clear that the second marriage took place much before the petitioner’s entry into the respondent- Corporation. Under those circumstances, I am of the opinion that the disciplinary authority has erred in passing the impugned Order of removal. The Labour Court has also committed a mistake in conﬁrming the said order of removal. That apart, during the course of arguments, it was brought to the notice of the Court that the ﬁrst wife of the petitioner- Smt.Ghousia Begum passed away on 21-3-2008. In the above facts and circumstances of the case, the impugned Order of removal as conﬁrmed by the Labour Court is liable to be set aside. Therefore, the Order of removal passed by the respondent in Proceedings No.01/114(3)/98- TDP, dated 18-3-2000 and also the Award dated 22-12-2006 in I.D.No.189 of 2003 on the ﬁle of Industrial Tribunal-cum- Labour Court, Anantapur are set aside. However, since the petitioner is out of employment from 18-3-2000, he is not entitled for back wages, but is entitled for continuity of service and attendant benefits. Accordingly, the Writ Petition is allowed and the respondent is directed to reinstate the petitioner with continuity of service and attendant beneﬁts, but without any back wages. No order as to costs. 25-9-2008 prk