IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.09.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.34425 OF 2006 (O.A.NO.3042 OF 1998) P.Rajendran .. Petitioner Vs. 1.Director of Public Health and Preventive Medicine, Chennai-6. 2.Filaria Officer, National Filaria Control, Vellore, Vellore District .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records connected with Pro.Na.Ka.No.2937/Aa2/97, dated 6.1.98 of the Filaria Officer, National Filaria Control Scheme, Vellore, to set aside the same and consequently, to direct the respondents to reinstate the applicant into service, treating the period he was out of employment as duty for all purposes. For Petitioner : Mr.S.Ilamvaludhi For Respondents : Mr.R.Neelakantan, GA ORDER Heard both sides. 2.This writ petition arose out of O.A.No.3042 of 1998 filed by the petitioner before the Tamil Nadu Administrative Tribunal. In view of the abolition of the Tribunal, it was transferred to this court and was renumbered as W.P.No.34425 of 2006. 3.The petitioner sought for the issuance of a writ of certiorarified mandamus to call for the records connected with Pro.Na.Ka.No.2937/Aa2/97, dated 6.1.98 of the Filaria Officer, National Filaria Control Scheme, Vellore, to set aside the same and consequently, to direct the respondents to reinstate the applicant into service, treating the period he was out of employment as duty for all purposes. https://hcservices.ecourts.gov.in/hcservices/ 4.The petitioner was employed as Cholera Mazdoor with effect from 7.5.79. He was given a charge memo, dated 21.9.93, stating that he has married to one R.Thamilselvi contrary to Rule 19 of the Tamil Nadu Government Servants Conduct Rules. But, however it is in the nomination form given to office on 18.1.1982, he had given the name of his wife as R.Valarmathi. Subsequently, it was proved that the petitioner had married to the said Thamilselvi on 14.2.93 and the same was registered at the Marriage Registrar at Pallikonda. On the basis of the materials produced, the department came to the conclusion that it was why he should not be removed from the service. In the departmental enquiry, the said Thamilselvi, who was examined, confirmed her marriage. 5.The petitioner in response to the show cause notice stated that he got married to the said Thamilselvi only on the basis of the first wife's compulsion and Thamilselvi having three children, which are maintained by the petitioner. On the basis of these records, the respondents passed an order dated 6.1.98 compulsorily retiring the petitioner from service. The petitioner preferred an appeal to the first respondent vide his appeal dated 6.3.98. Even when the appeal was pending, the petitioner moved the Tribunal with OA No.3042 of 1998. The Tribunal, by its order, dated 22.4.1998 granted an interim stay. The Tribunal held that since prima facie the petitioner was informed about the provisional decision to compulsorily retiring even before the enquiry, it amount to pre-judging the issue. The said interim order came to be continued until further orders by the Tribunal. 6.On notice from the Tribunal, the respondents have filed a reply affidavit, dated 4.8.98. It is not clear as to how the Tribunal granted an interim stay thereby facilitating the continuance of the petitioner in service. In the present case, there is no dispute with reference to the marriage contracted by the petitioner with the Thamilselvi. The petitioner being an Hindu by religion could not have contracted a second marriage when the first wife is still alive. Apart form the personal law Rule 90 of the Tamil Nadu Government Servants Conduct Rules clearly prohibits such second marriage besides the same being an offence under IPC. When once Government Servant Conduct Rules prohibits such contraction of second marriage, there is no gainsaying for the petitioner to contend that he was ignorant about the rule. 7.In this context, it is necessary to refer to the judgment of the Supreme Court in State of W.B. v. Prasenjit Dutta reported in (1994) 2 SCC 37. In paragraph 5 it was observed as follows: 5....It cannot at the same time be said that the departmental authorities cannot go into such question for the limited purposes of sub-rule (4) of Rule 5 of the aforesaid Rules. When contracting another marriage, in the presence of the previous one, has been termed to be misconduct visiting departmental punishment it is difficult to keep suspended action under the Rule till after a proper adjudication is made by the civil or https://hcservices.ecourts.gov.in/hcservices/ matrimonial court. It would, thus, have to be viewed that the departmental proceeding could not be shut in the manner in which the High Court has done and it would have to go on to some finality at a departmental end, on the culmination of which, it may then give rise to the delinquent approaching the civil court for determining his matrimonial status. Thus, we are of the view that the High Court, both at the trial and the appellate stages, committed an error in preventing the dismissal order to take effect on the premises as noted above. However, besides that point, if any other point had arisen in the matter which justified stay of operation of the dismissal order that could be left to the High Court to be determined in accordance with law. 8.The Supreme Court further upheld the right of the Government to conduct an enquiry in case of such misconduct by the Government servant vide its judgment in State of Karnataka v. T. Venkataramanappa reported in (1996) 6 SCC 455. In paragraph 3 of the said judgment it was observed as follows: 3.The prosecution evidence in the criminal complaint may have fallen short of those standards but that does not mean that the State was in any way debarred from invoking Rule 28 of the Karnataka Civil Service Rules, which forbids a government servant to marry a second time without the permission of the Government. But, here, the respondent being a Hindu, could never have been granted permission by the Government to marry a second time because of his personal law forbidding such marriage. It was thus beyond the ken of the Tribunal to have scuttled the departmental proceedings against the respondent on the footing that such question of bigamy should normally not be taken up for decision in departmental enquiries, as the decisions of competent courts tending to be decisions in rem would stand at the highest pedestal. There was a clear fallacy in such view because for purposes of Rule 28, such strict standards, as would warrant a conviction for bigamy under Section 494 IPC, may not, to begin with, be necessary. We therefore explain away the orders of the Tribunal to the afore extent that Rule 28 can be invoked, but would certainly maintain the orders of revocation of suspension since in the presence of the orders of discharge in favour of the respondent, his continued suspension during the enquiry was totally unwarranted. Let the enquiry be held. 9.In the light of the above factual matrix and the legal precedents, the punishment given to the petitioner cannot be interfered with. But thanks to the order of the tribunal, the petitioner had continued in service for the last 10 years. At one stage, the counsel for the petitioner wanted to withdraw the writ petition without any orders from this court. But however, this court declined to grant such permission since the petitioner cannot take https://hcservices.ecourts.gov.in/hcservices/ advantage of an interim order and thus, frustrate the attempt of the State Government to deal with a misconduct committed by its own servant and grant appropriate penalty as provided in the service rules. 10.Therefore, this court is of the view that while the punishment of compulsorily retirement is upheld, the salary paid to him by virtue of the interim order need not be recovered as he had worked physically during the said period. But, however, his pensionary benefits will be calculated as if he had compulsorily retired from service only from the date of his employment till 6.1.98 when the impugned order came to be issued. If any amount already paid as pension and DCRG for the period under which he worked under the orders of this Court cannot be enure to his benefit for the purpose of calculation of pension and DCRG. If the petitioner is still in service, then he shall be compulsorily retired forthwith and the directions issued will be implemented even in such circumstances of the case. 11.The writ petition is dismissed with the above direction. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar vvk To 1.Director of Public Health and Preventive Medicine, Chennai-6. 2.Filaria Officer, National Filaria Control, Vellore, Vellore District + 1 CC to Mr.S.Ilamvaludhi,Advocate,SR.49720 + 1 CC to Government Pleader,SR.50056 W.P.NO.34425 OF 2006 RJ(CO) EM/9.10 https://hcservices.ecourts.gov.in/hcservices/