Dipjyoti Bhuyan vs Oil and Natural Gas Commission

D.N. Baruah, J.—In this Application under Article 226 of the Constitution the Petitioner has challenged Annexure-8 show cause notice dated 19th February, 1993 issued by the 2nd Respondent. The opposite party initiated a disciplinary proceeding on the ground that the Petitioner entered into a second marriage during the life time of first wife of the Petitioner. A show cause notice was issued and the Petitioner duly replied to it controverting the allegation. The Respondent-authority not being satisfied with the show cause notice decided to hold departmental proceeding and an enquiry was held. On completion of the Departmental Proceeding the Petitioner was found guilty of the charges framed and a second show cause notice dt. 19.2.93 (Annexure-8) was accordingly issued proposing to impose penalty of removal from service without disqualification for future employment. Against this-notice the Petitioner has approached this Court.

It may be mentioned that the Petitioner approached the District Judge, Jorhat for dissolution of the marriage between him and Jogmaya Bhuyan. The District Judge, however, held that as there was no valid marriage the question of granting divorce did riot arise. The admitted facts are that the Petitioner was living with Smti Jogmaya Bhuyan and an impression was created as they are husband and wife, however no marriage was solemnised either according to Hindu rites o* under the Special Marriage Act.

Heard Mr. P.G. Barua, learned Counsel for the Petitioner and Mr. B.J. Talukdar learned Standing Counsel for ONGC. Mr. Barua submits that as there was no valid marriage the question of imposing penalty as proposed does not arise, therefore, the entire departmental proceeding is vitiated by error of law and jurisdiction. Mr. Barua further submits that in order to make a marriage complete it has to be solemnized within the meaning of Hindu Marriage Act, 1955; it may be by ''Saptapadi'' or by any other custom recognised by the Hindu Customs. Therefore, was no marriage in the eye of law. Hences, the Petitioner cannot be held guilty for having entered into an alleged second marriage.

Mr. Talukdar, learned standing counsel, on the other hand, strenuously argues that the Departmental proceeding was conducted fairly without bias or predilection and in accordance with relevant disciplinary rules and constitutional provisions, therefore, the order passed by the authority concerned cannot be interfered with. Mr. Talukdar further submits that the case is premature in view the fact that the finality of the disciplinary proceeding has not reached.

The main question falls for de termination is whether the charge of having a second wife is made out. Contention of Mr. Talukdar that a fair enquiry conducted by the authority without any bias may be material and relevant only if the charge framed against the Petitioner is made out. In the present case, there being no material to show that the marriage between the Petitioner and Smti Jogmaya Bhuyan was solemnized in accordance with law. Therefore, the charge framed has not been proved. In order to attract Section 17 of the Hindu Marriage Act, 1955 the marriage shall have to be solemnized with proper ceremonies i.e. either ''Saptapadi'' or by any other ceremony sanctioned by the Custom. In the present case, the Respondent has not been able to show that there was some sort of marriage as sanctioned by the Hindu Marriage Act, or by any order Act. Mere living a man even for a considerable period with a woman does not make or confer the status of husband and wife. The marriage must be solemnized.

Mr. Barua has drawn my attention to a decision Surjit Kaur Vs. Garja Singh and Others, In the said decision the apex Court had the occasion to deal with a similar case. It has been held in the said case that man and women living husband and wife does not at any rate, normally give them the status of husband and wife even though they may hold themselves out before the society as husband and wife and the society treats them as such. The Supreme Court further "....the expression ''whoever.... marries'' must mean ''whoever...., marries validity or ''whoever.... marries and whose marriage is a valid one. If the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises. If the marriage is not a valid marriage, it is no marriage in the eye of law. The bare fact of a man and a women living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society (sic) them as husband and wife."

This has exactly happened here. In view of the above, I find sufficient force in the submissions of the learned Counsel for the Petitioner that there was no valid marriage. Therefore, in my opinion, the Departmental Proceeding on the basis of the charge framed against the Petitioner is without jurisdiction and unfounded. Accordingly I quash the Departmental Proceeding as well as the Annexure-8 second show cause notice issued by the Respondents.

Mr. Barua further submits that because of the pendency of the Departmental Proceeding the promotion of the Petitioner has been withheld. If that is so, the Respondents may consider the case of the Petitioner in accordance with law.

With the above direction and observation, the petition is disposed of No costs.