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Judgment
R. Gururajan, J.—This petition is directed against an order at Annexure-A, dated 17-9-1998 issued by GOC-in-C Southern Command directing that the petitioner be discharged from service. The petitioner is also challenging Annexure-B an order dated 8-10-1998 issued by the Officer Commanding Training Battalion No. I of MEG. He seeks a direction to the respondent to reinstate the petitioner with all benefits in accordance with law.
The petitioner was enrolled in the Madras Engineer Group of the Regular Army on 17th December, 1983 as a Sapper Clerk. After successful completion of training he was posted out from the MEG and centre and served in Engineer units. He earned his, promotion to the Non-gazetted Officer rank of Naik, and was serving with 163 Bridging Company of 16 Engineer Regiment located then at Ambala Cantonment during 1990, On 16-2-1990, the petitioner married one Sreedevi D/o. Achuthan of Neerthattil House, Vadakkekad, Thrissur District, Kerala. It was an arranged marriage. Marriage was done in accordance with the custom prevalent in their community, namely, ''Thiyyas''. According to the petition averments, the relation between the petitioner and the wife was not cordial. His wife could not adjust with the other inmates in the petitioner''s house. After spending a month, according to the petitioner, she left the house immediately. The petitioner had to return to duty to his unit on the expiry of his leave. The petitioner''s wife thereupon left her matrimonial home immediately on the very next day and went back to her parental house to live there permanently. A son was born to the couple. In March 1991, the petitioner went home to see the son. His wife did not join the petitioner and his wife and her father denied access to the child. The petitioner could not countenance in his sexual relations with her. The relation of the petitioner''s wife treated the petitioner with utmost contempt and cruelty in terms of the averments made in para 4. In these circumstances, the elders in the community intervened and brought about a resolution of the marriage in terms of the customs of the community. Thereafter a certificate was obtained at the hands of the village officer in terms of Annexure-C. In terms of the Regulation regarding documentation of service of persons, the petitioner made official report to his Company of his having contract marriage with the said Sreedevi in the year 1990. It had accordingly been notified to the 4th respondent, whose duty is to carry out the documentation relating to all personal occurrences in respect of Junior Commissioned Officers and other Ranks of the MEG. After dissolution of his marriage, he submitted a correct report of the said divorce to the authorities. The Commanding Officer acting under provisions of para 333(C)(a) of the Regulations made a reference to the civil authority that is the jurisdiction District Collector/Magistrate about the information furnished by the petitioner to the Unit that he had been divorced from his erstwhile wife Sreedevi according to the customary rites of their community. The Commanding Officer, called for verification of facts and the report, before acting on the information submitted by the petitioner. On receipt of the verification report dated 19-6-1993 from the said District Collector, Thrissur, confirming that petitioner''s marriage had been dissolved according to the customary practice of the community. The unit published Daily Order Part II notifying under law that the petitioner''s marriage with the said Sreedevi had stood dissolved from 17-5-1991. Annexure-1) is the report. The publication is filed at Annexure-E. According to the petitioner, promulgation of the marriage provided without attracting the bar on and penalty for, contracting plural marriage, applicable to the Government servants. On 23-5-1992, Sreedevi submitted a representation to the Military Superior Authorities seeking maintenance. Despite representation by the petitioner against grant of such maintenance to the deceitful lady, the superior military authorities acted on her representation addressed to the 4th respondent, directed him to deduct a sum of Rs. 598/- per month out of the petitioner''s salary to be paid to the said Sreedevi by way of maintenance to her and her son-According to the petitioner, in the light of the verification of the Court and the | subsequent publication there exists no impediment for the second marriage. He therefore contracted another marriage with one Jayasree on 15-94993 without S concealing anything. A copy of the marriage certificate dated 15-9-1993 is filed at t Annexure-F. The petitioner thereafter initiated Original Suit No. ,891 of 1992 seeking a declaration that the marriage between the petitioner and his erstwhile wife has been dissolved in accordance with the customary rites. The Court after hearing the parties has dismissed the suit.
The petitioner in the meanwhile completed the criteria and eligibility and qualifications for his next promotion to the rank of Naik to that of Havildar Clerk. He was promoted and an order was issued to him. In the meanwhile, the first wife Sreedevi filed a Original Suit No. 97 of 1993 in the Family Court of Ernakulam contending that the customary divorce did not constitute a valid divorce and claiming maintenance for the child and herself for the past period from May, 1991 onwards. The said petition was allowed and a sum of Rs. 600/- was ordered.
He also filed a Original Petition No. 513 of 1994 in the Family Court at Thrissur. The Family Court ruled against the petitioner. Aggrieved by the said order dated 3044996, the petitioner filed a miscellaneous appeal in M.F.A. No. 855 of 1996 on the file of the Hon''ble High Court of Kerala at Ernakulam. His appeal is pending.
In the meanwhile, based on the representation made by the said erstwhile wife of the petitioner Smt. Sreedevi alleging that the petitioner had contracted by marrying Smt. Jayasree, initiated proceedings against the petitioner for having allegedly contracted plural marriage. A show-cause notice dated 154-1998 was issued to the petitioner. The petitioner was called upon to show cause as to why his services could not be terminated under the provisions of para 333 of the Regulations for the Army lead with Army Act, 1950. Section 20 and Army Rule 17. A show-cause notice is at Annexure-J. The petitioner submitted a detailed reply objecting to the allegations in terms of Annexure-C. In the meanwhile, the petitioner also filed a. original suit in O.S. No. 10445 of 1998 seeking for permanent injunction restraining the respondent from carrying out the discharge from service in terms of the Army Act, 1950, Section 22 read with Clause III(v) of the Table to Army Rule 13 for contracting plural marriage in violation of para 333-C(a) of the Reductions for the Army, 1987. The petitioner is challenging Annexure-A in the given circumstances.
Notice was issued and the respondents have entered appearance. In the objection statement, the respondents say that they are justified in issuing the show-cause notice in me given circumstances. They refer to the various pleadings and the various proceedings to contend that the petitioner cannot get any relief at the hands of this Court in the given circumstances. They refer to various provisions in the light of the material facts to say that the plural marriage of the petitioner is in violation of para 333 of the Army Regulations. They also say that they are justified in discharging the petitioner. Insofar as the pending case in Kerala High Court is concerned according to the respondent that by itself cannot be a ground not to proceed further in the matter. They justify their action.
A rejoinder is filed in the light of the objection statement explaining the stand of the petitioner in the mailer. An additional rejoinder is also filed by the petitioner. Alongwith the additional rejoinder, several documents have been filed.
Matter is heard fairly for a long time. Col. Nair, learned Counsel with vehemence would say that the present proceedings, looking from any angle, require interference for rendering justice to the petitioner in. the given circumstances. Learned Counsel took me through the various pleadings to contend that discharge is totally opposed to the law governing discharge. He invites my attention to the material facts to contend that the petitioner was compelled to marry second time in terms of the customary marriage resolution in terms of the proceedings. Learned Counsel also took me through the pleadings to say that there is no plural marriage in the given facts. According to him, there is no plural marriage in the present circumstances. Learned Counsel also says that the show-cause notice issued to the petitioner by Lieutenant Colonel is unsustainable as the same has been issued by an incompetent officer. Learned Counsel also says that the administrative action resulting in discharge of service is barred by law of limitation. It was taken after the expiry of 3 years from the date of alleged act i.e., 5-3-1994 when (the Family Court passed its judgment stating that Smt. Sreedevi has filed a written statement in O.S. No. 83 of 1993 disclosing her marriage with the petitioner had contracted the plural marriage.
Learned Counsel relies on two judgments in Major Radha Krishan Vs. Union of India and Others, and an unreported judgment of this Court dated 18-6-1997 in the case of Union of India v. Ex. JC-142385 Nb Sub-K. Subramani.
The petitioner also says that the procedure prescribed has been violated inasmuch as the proceedings have taken place during the pendency of legal proceedings. Even otherwise, learned Counsel says that the plural marriage is not proved in accordance with law. Finally while concluding he also says that the MFA filed by him is allowed by the Kerala High Court and that therefore, the present proceedings has to be decided in his favour not only in the given circumstances, but also taking note of the subsequent development of the order at the hands of the Kerala High Court.
Per contra, Sri Veerendra Sharma, learned Counsel for the Central Government says that the petitioner has contracted plural marriage in terms of the Regulation. He was issued with a show-cause notice and thereafter, after obtaining his reply, the present order has been passed. Learned Counsel says that the facts of the case would show that there exists a plural marriage as understood in law. He also took me through the pleadings to say that the matter requires no consideration.
After hearing the learned Counsel, according to me the following issues arise for consideration:
(1) Limitation
(2) Scope of para 333
(3) Merits of the matter
Re: Limitation:
(i) The petitioner says that the impugned action of the respondent is barred by limitation. A period of limitation runs from the date of knowledge of the complainant with regard to the plural marriage in terms of the law governing this case. According to the respondents, the petitioner has committed an act of plural marriage on 15-5-1993. The material facts would reveal that the complainant''s wife i.e., the petitioner''s wife was aware of the marriage as early as 26-3-1994. Limitation has to be done from 26-3-1994. In the case on hand; a representation is made only on 13-6-1996. Action was taken on 15-1-1998. In the given circumstances and on the admitted facts as rightly pointed out by Col. Nair, learned Counsel, this matter is barred by time in terms of Section 122 of the Act. At this stage, I must also notice the two judgments of this Court in Writ Petition No. 2067 of 1992, dated 15-6-1995. In the said judgment, this Court noticed Section 122 and thereafter allowed the petition after accepting the period of limitation. This Court ruled that there was a total bar to proceed after elapse of 3 years. This Court also ruled that it is not open to the authority to institute any further proceedings in respect of the incident, which has alleged to have taken place between 1981-82. This order was challenged in W.A. No. 2655 of 1995, dated 18-6-1997. The Division Bench has noticed the period of limitation and-thereafter has ruled as under:
(emphasis supplied)
Of the various matters referred to in the said Regulation culpable negligence involving financial loss of public or regimental property is to be tried by Court martial or prosecuted before a Criminal Court and shall not be disposed of by a summary procedure or by administrative action. The only action that could have been taken in the present case is as provided under Regulation 432 and therefore, necessarily, proceedings of Court martial should have been initiated against the respondent. When that was not possible in view of lapse of time and Section, 122 was a bar thereto, they could not initiate such proceedings. If that is so the principle stated by the Supreme Court in Major Radhakrishan''s case would be applicable to the facts of the case. It was noticed therein that Section 122 of the Army Act is a complete code in itself for not only it provides the period of limitation but also the offences in respect of which limitation clause would not apply. Therefore, when action should have been taken for initiation of proceedings for a Court martial and that could not be done, it is not permissible to initiate action either administratively or adopt summary procedure. In that view of the matter, we find no reason to interfere with the order made by the learned Single Judge. However, we have to notice that the learned Single Judge while granting the consequential benefits has awarded interest at 18% to be compounded on certain terms. We do not think it would be appropriate to grant interest at that rate, it would be appropriate to grant interest only at 18% per annum. Subject to this modification, appeal is dismissed.
These two judgments would show that three years of time is referable from the date of knowledge of the complainant. The material facts support the contention of the petitioner that the respondent-wife did know the plural marriage and she has not initiated within the period of three years. The argument of Sri Nair, learned Counsel is therefore accepted. The respondents however argues that insofar as administrative action is concerned, there is no limitation. I am afraid that this argument is not available in the light of the categorical finding of this Court that no further proceedings could be taken in such cases. In these circumstances, I am unable to accept the argument of the respondent.
Re: Scope of Regulation 333 and merits:
The petitioner''s essential contention is that there is no cause of action in terms of para 333 of the Regulations. Para 333 of the Regulations provides for action for plural marriage. According to the petitioner, plural marriage would denote bigamy in terms of Hindu Laws. Respondents deny the same. Regulation 333 provides for permissibility of plural marriage in terms of Regulation 333-B. Regulation 333-B (a) prohibits marrying again within the lifetime of his first wife without prior sanction of the Government.
Regulation 333-B(b) provides for application for sanction to contract plural marriage on certain ground.
Regulation 333-C provides for further details in the matter of consideration of application. It further provides for consideration of the customary practice in certain circumstances. There is also a prescribed procedure prescribed in-terms of the provision itself. From the material available on record, it is seen that the respondent has not followed the procedure in the matter of plural marriage in terms of the procedure prescribed in terms of Regulation 333 itself. Clause G of para 333 of the Regulations provides for the way in which the case is to be dealt -with is stated. Cases of officers has to be reported through normal channels with the recommendations. Thereafter, the same has to be submitted to GOC-in-Command. He has to provide sanction in the matter. It also provides for recommendation in terms of the procedure. The prescribed procedure in terms of report, approval/sanction has not been followed in the case on hand. To this extent, the petitioner is right in his submission with regard to the failure to follow the procedure.
At this stage, I must also notice, that plural marriage has to be proved in a manner known to law. The petitioner has cited a few judgments in this regard.
In Kanwal Ram and Others Vs. The Himachal Pradesh Admn., provides for proof of second marriage. In this case, the Supreme Court has noticed that the 2nd marriage as a fact has to be proved with the essential ceremonies constituting it.
In Smt. Priya Bala Ghosh Vs. Suresh Chandra Ghosh, the Supreme Court has again ruled that the proof of solemnization of second marriage has to be with essential religious rites as applicable to the parties. In the case on hand, from the material available on record, it can be said that there is no required proof forthcoming-as is expected in the case of plural marriage.
The material on record shows that a slow-cause notice has been issued to the petitioner. The petitioner was asked to show cause as to why his services are not to exterminated in terms of para 333 of the Regulations read with Section 20 of the Army Act.
In the show-cause notice, it is stated that it has come to the notice of the head quarter that he has contracted plural marriage with Smt. Jayasree while his marriage with Smt Sreedevi is still subsisting which is not permissible as per the Hindu Marriage Act, 1955. It further says, that the aforesaid Act is in contradiction to para 333 of the Regulations. A copy of each of Family Court, Ernakulanr judgment in Case No. 83 of 1992 and Family Court, Thrissur judgment in Case No. 513 of 1994 is also enclosed.
The petitioner submitted his reply on 13-2-1998. In the reply, the petitioner stated that the earlier marriage resulted in divorce in terms of a certificate Annexure-C. The unit has approved the customary divorce and it is only thereafter, he has chosen to marry Smt. Jayasree on 15-9-1993. He further stated that the judgment in O.P, No. 513 of 1994 was challenged in Appeal No. 855 of 1996, After receipt of the reply, the respondents have chosen to pass orders in terms of Annexure-A.
Let me see as to whether Annexure-A stands the test of law have already ruled in my earlier paragraph that the prescribed procedure is not fully followed in the case en hand in terms of Para 333 Of the Regulations. I have also ruled that there is no proper acceptable proof forthcoming in my earlier paragraph for the purpose of second marriage. However, the respondents rely on two documents namely orders of two Courts for the purpose of terminating the petitioner on the ground of plural marriage. However, they have not chosen to take into consideration the earlier acceptance of separation in the light of an earlier certificate. There is reference to two orders. The order in O.S. No. 83 of 1992 is dated 5-3-1994. In the said proceedings, the present petitioner has sought for dissolution of his marriage with Smt. Sreedevi. In the said suit, the present petitioner depended upon the dissolution in terms of the customary practice of the petitioner. The learned Trial Judge in the said judgment has noticed that the petitioner-plaintiff, if he has remarried may show that he felt or believed that his marriage with the defendant has been dissolved but that will not alter the legal status of the defendant or validate the plaintiffs bigamous second marriage. I must also notice another order passed O.P. No. 513 of 1994 passed by the Family Court, Thrissur. That petition was also filed by the present petitioner seeking divorce u/s 13 of the Hindu Marriage Act. An adverse order was passed against the petitioner. In fact that also form part of the foundation of the show-cause notice. That matter was taken in appeal in M.F.A. No. 855 of 1996. The Division Bench of the Kerala High Court noticed the material facts and thereafter the Division Bench noticed that the subsequent petition was filed stating that the petitioner has filed a second petition on the ground of desertion and cruelty. The Division Bench after noticing the factum of marriage has ruled that-marriage was irretrievably broken. It has chosen to provide a decree of divorce. This judgment of the Kerala High Court is binding on the parties. Therefore, the foundation for show-cause notice in terms of subsequent judgment of the Kerala High Court gels extinguished. This judgment was not available when Annexure-A was passed by the respondents. This judgment has been passed during the pendency of the petition. This Court can take note of a judgment of a High Court in the circumstances. In the light of the Division Bench judgment with regard to decree of divorce, I am of the view that Annexure-A has no legs to stand in die given circumstances. Annexure-A thus suffers from procedural irregularity and also suffers from illegalities with regard to proof of the plural marriage. Moreover, the petitioner also is a victim of circumstances as I see from the conduct of his earlier wife in terms of the material available on record. In these circumstances, I have no hesitation in holding that Annexure-A has to be set aside and I do so in the case on hand.
It is also argued before me that the respondents could not have continued the proceedings in the light of pending legal proceedings in terms of the reply filed by the petitioner. It is no doubt true that Regulation 333-C provides for "No proceedings" during the pendency of the proceedings in. a Competent Court of law. Matter has to be treated as subjudice in the light of Regulation 333. The petitioner''s contention is that in the light of the pendency of the legal proceedings, they could not have proceeded further in the matter, On the other hand, in reply, it is stated that no proceedings as such was pending and only an appeal was pending. The respondents have also cited before me a judgment of the Andhra Pradesh High Court in W.P. No. 146 of 1989. I am not expressing any final opinion on this issue in the light of my findings on merits in favour of the petitioner.
The petitioner was granted promotion and the same was hot given effect to thereafter. The only reason for not promoting the petitioner is the alleged plural marriage on the part of the petitioner. Now that I have set aside the plural marriage in this order, the petitioner is entitled for a relief of promotion also.
In the result, Annexures-A and B are set aside. Respondents are directed to provide all benefits including promotion and other monetary benefits flowing in the light of quashing of the impugned orders within 12 weeks from the date of receipt of a copy of this order.
Ordered accordingly. No costs.