Sunday, June 23, 2013

innocent second wife! claims she married after first wife consent. Still bigamy crime!. Prohibited under State govt rules. Second wife's parents initiate complaints with govt departments . Husband looses job but NOT prosecuted further, Madras HC says innocent! second wife is NOT to be prosecuted or terminated from government service as the husband who is guilty is not prosecuted by dept (i.e.) NO different treatment !!!

Notes / thoughts
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- second wife claims she is innocent was NOT taken care of by her parents who were ONLY in her income and she was 32 years old unmarried and dejected !!
- one married man approaches her tells her she has a wife who is ill, gets consent of first wife and marries her
- second wife's parents start harassing her , send petitions to government department and so the husband looses his job
- husband goes on various appeals / tribunals etc and gets back job without any back wages
- second wife's parents continue harassment / petitions and second wife is prosecuted and looses job (she is also govt servant)
- second wife goes on appeal to HC
- second wife challenges that MAdras state govt. rules against bigamy are ultra vires the constitution of India 
- Madras HC says wife is NOT to be prosecuted while the husband is prosecuted ...
- "..........If for the misconduct found under Rule 19(1) if the husband who is already a married person can be let off without any penalty, the petitioner, who is an unmarried woman and who became a consenting party to the marriage cannot be punished severely. The respondents cannot adopt two different yardsticks in the matter of imposition of penalty, especially in respect of the same transaction........."


**************** judgement **************


IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:   28.02.2011

CORAM:

THE HONBLE MR.JUSTICE K.CHANDRU

W.P.No.45974 of 2006
(O.A.No.8971 of 2000)

K.Rajeswari    ...Petitioner

Vs

1.The Secretary to Government,
  Personnel and Administrative
    Reforms Department,
  Govt. of Tamilnadu,Secretariat, Chennai -9.

2.Deputy Director of Medical and
   Rural Health Services and Family Welfare,
  Salem.

3.Medical Officer,
  Govt. Primary Health Centre,
  Konganapuram, Salem District.     ...Respondents


Prayer :O.A.No.8971 of 2000 has been preferred before the Tamil Nadu Administrative Tribunal and on transfer to this Court renumbered as W.P.No.45974 of 2006 praying for a Writ of Declaration, declaring that the Rule 8 (ix) of Tamil Nadu Ciil Services (Discipline  & Appeal) Rules as ultra vires and unconstitutional in so far as it relates to imposition of compulsory  penalties  i.e. Vi, vii, viii  for the violation of Rule 19 of the Tamil Nadu Government Servants Conduct Rules 1973 and call for the records pertaining to the  order passed by the 2nd respondent in his proceedings R.Dis.No. 3034/OS/93 dated 31-10-2000 and quash the same and direct the  Respondents to reinstate the petitioner with all consequential benefits.

For Petitioner  :  Mr.P.Ganesan for Mr.S.Mani

For Respondents :  Mr.R.Murali,G.A.

O R D E R

    The petitioner, who was working as a Store Keeper at the Government Health Department in Konganapuram, Salem District, filed O.A.No.8971 of 2000 before the Tamil Nadu Administrative Tribunal, challenging the validity of rule 8 (ix) of Tamil Nadu Ciil Services (Discipline  & Appeal) Rules as well as the order of removal dated 31.10.2000.

    2.  The Tribunal admitted the Original Application on 08.12.2000. Pending the OA, the Tribunal granted an interim stay for a limited period. Subsequently, the interim stay stood extended without specifying any outer time limit by a further order dated 22.12.2000.

    3. Aggrieved by the interim order, the respondent filed M.A.No.2016 of 2001, seeking to vacate the interim order. However for reasons best known, the Tribunal did not take up the said miscellaneous application.  The petitioner on the strength of the interim order is continuing in service.

    4. Before the Tribunal, on behalf of the first respondent State, a technical counter affidavit dated 04.01.2001 was filed stating that they have been improperly impleaded in the OA and since no relief was  claimed against them, OA should be dismissed.

    5. In view of the abolition of the Tribunal, the matter stood transferred to this Court and re-numbered as W.P.No.45974 of 2006.

    6. Heard the arguments of Mr.P.Ganesan, learned counsel appearing for Mr.S.Mani for the petitioner and Mr.R.Murali, learned Government Advocate, appearing for the respondents.

    7. The facts leading to the filing of the writ petition were as follows:-

    The petitioner joined as a Store Keeper in the year 1982 in the Government Health Department in Salem District. Her parents did not take care of her and did not get her married at an appropriate age.  She had crossed 32 years but yet her parents were only concerned about her income.  At that time, when she was feeling depressed and mentally worried about her future, one Thangavel approached her and asked the petitioner whether she was willing to marry him. He also told her that he has a wife who is ill and unable to take care of herself.  But however, he has got two children through her. The said Thangavel was unwilling to divorce his first wife on the ground that she was unwell.  Therefore, with the consent of his first wife, the petitioner got married to the said Thangavel. The marriage was solemnized on 08.01.1990 at the Sub-Registrar Office, Edapadi.  The petitioner never had intention to disregard the law and she got married only after ascertaining the wishes of the first wife of Thangavel.

    8. The said Thangavelu was employed as a Junior Assistant in the Department of Treasuries and Accounts.  After their marriage, the parents of the petitioner started giving trouble to the petitioner's husband by sending petitions to his department.  In view of the same, disciplinary action was taken against her husband Thangavel by the Department of Treasuries and Accounts under Rule 19 of the Tamilnadu Government Servants Conduct Rules by the Director of Treasuries and Accounts.  The charges levelled against the said Thangavelu was that he had furnished false information regarding his occupation as an Agriculturist before the Sub-Registrar, Edapadi at the time of his second marriage on 08.01.1990 with the petitioner. Hence, his conduct would amount to a bigamous marriage.  The Enquiry against her husband finally dealt with by disciplinary action and he was imposed with the punishment of stoppage of increment for a period of five years with cumulative effect. But however, the Appellate Authority suo motu reviewed it and revised the punishment. Finally her husband was compulsorily retired from service as a penalty.  As against the said penalty, her husband Thangavelu filed O.A.No.4285 of 1993.  The Tribunal set aside the said penalty and allowed the Original Application on 13.01.1995.

    9. The petitioner's parents, however started sending further petitions to the petitioner's department which resulted in the issuance of a charge memo under Rule 17(b) of the TNCS (D & A) Rules to the petitioner on 24.07.1996. The petitioner gave her explanation on 19.08.1996. Subsequently, an enquiry was held against the petitioner and a personal hearing was given to her on 10.06.1997.  The Enquiry Officer's report was communicated to the petitioner with a covering letter dated 11.05.1998.  The petitioner sent a further representation dated 23.06.1998.  Thereafter, the second respondent consulted the Government Pleader, Salem.   The Government Pleader by his opinion dated 18.10.000 opined that the action committed by the petitioner will amount to 'Bigamy' and the consent obtained from the first wife will not in any way legalise the action. Further, it was also indicated that even if the second marriage was void, the fact that Government servant living with another married Government servant will also be a misconduct in terms of Rule 19(1) of the Government Servants' Conduct Rules.  In view of the marriage, which fact was not disputed, a major penalty was imposed on her. Accordingly, the petitioner, vide an order dated 31.10.2000 was removed from service by the second respondent.  Though she was eligible to file a statutory appeal, she did not do so. After getting waiver of the appellate remedy, she filed the Original Application and also obtained an interim stay as noted already. 

    10. Under rule 19 of the Tamil Nadu Government Servants' Conduct Rules, bigamous marriage is prohibited  Rule 19 may be usefully extracted below:-

"19.Bigamous marriage.-(1) No Government servant shall, enter into or contract, a marriage with a person having a spouse living: and

ii)No Government servant having a spouse living, shall enter into or contract, a marriage with a person: Provided that the Government may permit a Government servant to enter into, or contract, any such marriage as is referred to in clause (i) or clause (ii), if they are satisfied that

(a)such marriage is permissible under the personal law applicable to such Government servant of the other party to the marriage; and

(b)There are other grounds for so doing.

(2)No Government servant shall involve himself in any act involving moral turpitude on his part including any unlawful act, which may cause embarrassment or which may bring, discredit to Government."

    11. The petitioner contended that an amendment made to Rule 8(ix) of the Tamil Nadu Civil Services (D&A) Rules will stand in her way of challenge to the penalty. She also challenged the constitutional validity of the said Rule. Since the said Rule is under challenge, it is necessary to extract Rule 8(vi) to  8(ix) which is as follows:-

"8(vi)Compulsory retirement;

(vii)Removal from the civil service of the State Government;

(viii)Dismissal from the civil service of the State Government; and

(ix)Suspension, where a person has been suspended under rule 17(e), to the extent considered necessary by the authority imposing the penalty.

The penalties mentioned in items (i) to (iii),(v) and (ix) will be deemed to be minor penalties and those in (iv),(vi) to (viii) as a major penalties.

"The penalties mentioned in terms (vi),(vii) or (viii), as the case may be, shall be imposed on a Government Servant for the violation of rule 19 of the Tamil Nadu Government Servant's Conduct Rules, 1973."

(Emphasis added)

    12. The contention of the petitioner was that inasmuch the Rule imposes a fetter on the disciplinary authority  from choosing any one of the penalties found under Rule 8 and obliges him to impose only a major penalty under Rule 8(vi) to 8(viii) for the proved misconduct under Rule 19,  it is arbitrary and violative of Articles 14 and 16 of the Constitution. Inspiration was drawn from an earlier judgment of the Tribunal in the case relating to R.Thangamani v. State of Tamil Nadu and another in T.A.Nos.1275 and 1276 of 1989 dated 03.02.1994.

In that case, the Tribunal in Page 22 held as follows:-

"In these circumstances, the amendment to Rule 8 of CCA rules making provisions for imposing major punishment, taking away the discretion to award punishment for violation of Rule 19 of the conduct Rules, is ultravires, and is not sustainable.  Accordingly, TA.1275/1989 is allowed and the impugned portion of Rule 8 as added by G.O.Ms.No.742, P & AR dated 24.07.1982 is set aside."

    13. The petitioner further contended that inasmuch as her husband Thangavelu was allowed to be reinstated by the order of the Tribunal in O.A.4285/1993 dated 13.01.1995, the punishment given to her was discriminatory and violative of Article 14 of the Constitution.

    14. It is admitted by the learned Government Advocate that as against the order passed by the Tribunal in favour of S.Thangavelu, the husband of the petitioner, no challenge was made by the State and it was given effect to. But however, it was contended that Thangavelu belonged to some other Department viz., Department of Treasuries and Accounts whereas the petitioner belonged to the Health Department and the disciplinary authorities are different.    In the miscellaneous petition filed by the respondents, it was stated that the charges levelled against the petitioner had been proved.  The petitioner, being a Government Servant must be aware of not only the Government Servants' conduct Rules but also the penalty  that may be imposed for violation of such Rules.

    15. In the light of the above contentions, the following questions arise for consideration by this Court.

    i)Whether Rule 8 (ix) of the TNCS (D & A) Rules is violative of Articles 14 and 16 of the Constitution and whether the earlier order of the Tribunal is legally correct?

    ii)Whether the charges levelled against the petitioner have been proved and if so whether the penalty inflicted on her as found in the impugned order is valid?

    iii) Whether the punishment given to the petitioner requires any interference in the light of the treatment given to her husband after he was similarly charge sheeted and punished?

    16. In so far as the first question is concerned, the case cited by the petitioner relating to one Thangamani, the Tribunal dealt with that case on the premise that the said Thangamani had converted herself into a Muslim and re-christened her name as Mumtaz and thereafter married one T.Dingaraja, who had also converted himself as a Muslim.  Since Rule 19 of the Government Servants' Conduct Rules itself provides for permission to be granted  to a government servant to enter into or contract a marriage if such marriage is permissible under the personal law applicable to such government servant.  Therefore, the Tribunal held that since the personal law of the said Thangamani alias Mumtaz permitted another marriage, the discretion taken away from the disciplinary authority was unwarranted.  Therefore, the Rule was not valid. However, this Court is not inclined to accept the said stand.  Even in case of a Government servant, whose personal law permits polygamous marriages cannot marry more than one without the prior permission of the Government. If such a marriage is contracted, though the marriage may be valid but the said Government servant will be committing violation of Conduct Rules. 

    17. Further, there is nothing wrong in the Government considering  a particular misconduct as a serious misconduct. An offence of bigamy is also a criminal offence under the Indian Penal Code.  Therefore, when the law of the land makes particular act as a criminal offence, it is axiomatic such a provision can also be made as a misconduct under the relevant Government Servants Rule.  When a Government  servant enters service, he is fully aware of the relevant conduct Rules and also the type of punishment that may be inflicted in case of contravention of the said Rule. Therefore, it is too late for him or her to contend that such a rule is either arbitrary or violative of Articles 14 and 16 of the Constitution since the power to take disciplinary action is delegated by the Government to various authorities. The Government also appoints disciplinary authority, Appellate Authority as well as Reviewing authority under the relevant rules.  The quantum of penalty can be considered by the relevant authorities. But since the authorities were either lax or liberal in relation to punishing government servants for misconducts under Conduct Rule 19 and many were let off with minor penalties as if the misconduct is trivial, the Government was forced to amend the relevant disciplinary Rule. It provided for mandatory imposition of penalties such as removal, dismissal or compulsory retirement in case of such misconduct.  Therefore, it cannot be said that Rule 8(ix)  suffers from arbitrariness or amount to putting fetters on a disciplinary authority.  After all the decision of the disciplinary authority is not final. The Government always has the power to suo motu review and enhance the penalty under the Rules.   Therefore, the first issue must necessarily be answered against the petitioner. Hence, Rule 8(ix) of the TNCS (D & A) is valid.

    18. With regard to the second issue that there was  no procedural violation in finding the petitioner guilty of the misconduct, infact she herself never attempted to  deny the marriage.  On the other hand, her only defence was that the consent of the first wife was obtained by them. An offence of bigamous marriage do not depend upon the consent of the first wife. Even with the consent of the first wife, a marriage among persons covered by Hindu Law, it is a criminal offence under Section 494 I.P.C as well as a misconduct under Rule 19(1) of the Tamil Nadu Government Servants' Conduct Rules.  Hence, the second issue must be found against the petitioner.

    19. The third issue was that the punishment was excessive and disproportionate. Since strong reliance was placed upon the order obtained by her husband Thangavelu in O.A.No.4285 of 1993 dated 13.01.1995, it is necessary  to refer to the said order.  In that order, the Tribunal found that the District Treasury Officer who conduced enquiry found that the said Thangavelu did not commit any offence involving moral turpitude and he got married only with the consent of the first wife and he himself recommended that the second charge against Thangavelu relating to charge of bigamy must be dropped. It is the appellate Authority, who defer from the Treasury Officer but did not give any reason for the disagreement.  The Tribunal found that the Treasury Officer did not hold the petitioner's husband guilty of unbecoming conduct of a government servant. He already obtained permission of his first wife and consent was given in a proper frame of mind. Though the Rule did not contemplate second marriage with permission, yet as the Thangavelu was dropped from the charge of moral turpitude and bigamy and the Appellate authority did not specify his reason, the Tribunal set aside the order of compulsory retirement and directed his reinstatement without backwages.

    20. It is not clear as to how such a case can enure to the benefit of the petitioner. The Tribunal had thoroughly misunderstood the scope of Rule 19. The Supreme Court had an occasion to consider a similar matter in the case of a Government servant and upheld the validity of the said Rule. In State of W.B. v. Prasenjit Dutta reported in (1994) 2 SCC 37, in paragraph 5, the Supreme Court 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 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."

    21. 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."

(Emphasis added)

    22. It is rather unfortunate that the State Government did not challenge the order of the Tribunal and also gave effect to the said order. If for the misconduct found under Rule 19(1) if the husband who is already a married person can be let off without any penalty, the petitioner, who is an unmarried woman and who became a consenting party to the marriage cannot be punished severely. The respondents cannot adopt two different yardsticks in the matter of imposition of penalty, especially in respect of the same transaction.

    23. In this context, an analogy must be drawn to  the offence of 'adultery' defined in Section 497 of IPC.   The offence of adultery as defined in that section can only be committed by a man, not by a woman.  Section itself provides that the wife shall not be  punishable even as an abettor. The  Indian penal Code itself contemplates that the wife, who is involved in an illicit relationship with another man, is a victim and not author of the crime.  The said provision of Section 497 came to be challenged as being discriminatory because the consenting woman is not punished and hence the provision was violative of Article 14 of the Constitution.

    24. The Supreme Court in the case relating to Yusuf Abdul Aziz v. State of Bombay reported in AIR 1954 SC 321  held that the Section do not offend Articles 14 and 15 of the Constitution. In that case, it was also held that very often because of her position in the society is weak and unable to defend, the law can make a distinction in the matter of defining an offence between a man and a woman. Subsequently, the Law Commission in its 42nd Report in 1971 recommended the retention of Section 497 with a modification that even a married woman who has sexual relationship with a person other than her husband should be made punishable for 'adultery', but the said recommendation was not accepted by the law makers .

    25. The discrimination made by Section 497 between man and woman once again came to be considered by the Supreme Court in  Smt.Sowmithri Vishnu v. Union of India and another reported in AIR 1985 SC 1618. At that time, it was argued that the society had advanced and women also are having high position in society and hence, the Court must take fresh look on the said section.  But however the Supreme Court did not consider that there was any case for reviewing  the Yusuf Abdul Aziz's case (cited supra).

    26. Though the said those two judgments may not have direct bearing, but in the matter penology, if the husband of the petitioner, who is equally guilty of the offence was let off by the same State Government, there is no reason why the petitioner should be inflicted with the extreme penalty of dismissal. While this Court is not willing to consider the Rule 8(ix) as ultra vires of Articles 14 and 16 of the Constitution, but yet on the third issue relating to discrimination in the matter of penalty, this Court is obliged to interfere with the said penalty.

    Since the respondents have not indicated any special reasons for treating the petitioner for a different treatment, except by stating that the husband and wife worked in two different departments, the impugned order has to necessarily be set aside.

    27. In the light of the above, the impugned order stands set aside.  The writ petition stands allowed. No costs.









svki
To

1.The Secretary to Government,
  Personnel and Administrative
    Reforms Department,
  Govt. of Tamilnadu,
  Secretariat, Chennai -9.

2.Deputy Director of Medical and
   Rural Health Services and Family Welfare,
  Salem.

3.Medical Officer,
  Govt. Primary Health Centre,
  Konganapuram,
  Salem District