IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3715 of 1998 In the matter of an application under Article 226 of the Constitution of India. =========================================================== Kumar Kamal Prasad S/o Sri Deodhari Ram, resident of village and P.O. Purana Bhojpur, PS Dumraon, Distt. Buxar .... .... Petitioner Versus 1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Old Secretariat, Patna 2. D.G. cum I.G. of Police, Bihar, Old Secretariat, Patna 3. D.I.G. of Police, Rail, Bihar, Patna 4. S.P. Rail, Muzaffarpur.... .... Respondents =========================================================== Appearance : For the Petitioner : Mr. Ram Hriday Prasad For the Respondents : Mr. Rajesh Kumar, AC to AAG III =========================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH Ahsanuddin Amanullah, J. The present writ petition was originally filed on 1.5.98 for quashing of the order dated 21.8.97 passed by the Superintendent of Police, Rail, Muzaffarpur, by which the petitioner has been dismissed from service as well as the order passed by the D.I.G. Rail, Patna, dated 15.10.97 upholding the dismissal order. It appears that subsequent to the filing of the present writ application, the memorial preferred by the petitioner before the Director General- cum- Inspector General of Police, Bihar, also stood rejected by order dated 28.10.98 which was also brought on record by an affidavit filed by the petitioner. It is submitted that inadvertently amendment was not sought for but this Court may also treat this to be impugned. Accordingly, this Court permits the said order dated 28.10.98 passed 2 on the memorial by the Director General-cum-Inspector General of Police also to be treated as an order impugned in this writ application. 2. Learned counsel for the petitioner submits that the sole charge against the petitioner was that during the life-time of his first wife, the petitioner had contracted the second marriage which was in the teeth of Rule 23 of the Bihar Government Servants Conduct Rules, 1976 as well as Rule 707(A) of the Bihar Police Manual, 1978. Learned counsel submits that the charge is itself non-est for the reason that the then S.P.,Rail, had granted permission to the petitioner to marry for the second time during the life-time of the first wife. He submits that the Superintendent of Police being the disciplinary authority, there was no occasion for the petitioner to take any further steps or consider any other action in the matter since he was under a bonafide belief that the competent authority had granted him such permission. This fact is not denied in the counter affidavit. Learned counsel further submits that the first wife had given an affidavit stating that it was on her insistence that the petitioner had contracted the second marriage. He further assures this Court that the first wife and the off-springs therefrom shall be duly looked after and given their due shares from the earning of the petitioner. Learned counsel has lastly submitted that in any view of the matter, the order of dismissal is disproportionate to the charges levelled. In support of 3 the same, he draws attention of this Court to an order passed in regard to a similarly situated Constable, though by the Commandant, BMP II, Dehri, by which for an identical alleged misconduct order of punishment for stoppage of increment for one-and -a -half years has been passed. 3. Learned counsel for the State, on the other hand, from the counter affidavit filed on behalf of respondent no.4, supports the impugned orders and states that the petitioner having acted in contravention of Rule 23 of the Bihar Government Servants Conduct Rules, 1976 as well as Rule 707(A) of the Bihar Police Manual, 1978 has been rightly inflicted the punishment of dismissal. He further submits that the S.P. had no authority to grant any such permission for second marriage. 4. Considering the facts and circumstances of the case, this Court is inclined to accept the submissions made by learned counsel for the petitioner. The petitioner having taken permission from the then S.P. before contracting the second marriage, who incidentally was also the disciplinary authority, cannot be said to have committed such a grave misconduct, for the reason that he was under a bonafide and genuine belief that permission granted by the disciplinary/appointing authority was sufficient, warranting his dismissal. It may have been necessary for the then S.P., Rail to refer the matter to the State 4 Government for a decision rather than granting him such permission. In the present case, it does not appear that any action has been taken against the then S.P., Rail, for having granted permission to the petitioner to marry for the second time even when his first wife was alive, for having exceeded his jurisdiction. 5. In view of the order referred to by the petitioner in the case of a similarly situated person which is at Annexure-6 to the writ petition, in which for identical misconduct the punishment awarded was stoppage of increment for one-and-a half years, this Court is constrained to observe that the respondents ought to have maintained some sort of parity while passing the order of dismissal against the petitioner. That was also a case where the Police Constable was charged with the same alleged misconduct but he was visited with a much lighter punishment, whereas in the present case, the punishment was straightway dismissal from service. In any view of the matter, this Court is also inclined to accept the plea of the petitioner that the said punishment was disproportionate to the charges levelled against him. 6. For the reasons aforesaid, the order of dismissal dated 21.8.97 as well as the appellate order dated 15.10.97 and the order passed on the memorial dated 15.10.98 are set aside. The Superintendent of Police, Rail, shall pass a fresh order against the petitioner keeping in 5 view the observations made herein and also the fact that there should be some parity in the order passed in a similar case by the Police. Let the S.P. Rail, Muzaffarpur, pass such an order latest within a period of three months from the date of receipt/production of a copy of this order. The petitioner’s entitlement and consequential benefits shall be dependent on the fresh order that shall be passed and in accordance with law. This will further be subject to the stipulation that the first wife and her off-springs shall be taken due care of from the earning of the petitioner and their due shares should be given to them. 7. The writ petition stands allowed to the extent indicated above. ( Ahsanuddin Amanullah, J.) Patna High Court, Patna The 14th of December, 2011 NAFR mrl