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Judgment
P.L. Narasimha Sarma, J.—This writ petition was filed for the issuance of a writ of certiorari to call for the records relating to the order of the first respondent in Order No. 6 (181)/88/D(A6) dated 15-12-1988 and to quash the same. In and by the terms of the impugned order, the petitioner was dismissed from the service forthwith. The said dismissal order was questioned by the petitioner in this writ petition.
The relevant facts are as follows:
The petitioner was selected by the third respondent and appointed as Captain in Army Medical Corps in a permanent commissioned post. He joined the duty on 12-8-1979 as Doctor in 16-Medical Battallion, C/o. 56. A.P.O., and posted at Jummadpur, Jammu & Kashmir State, During his service, he was granted two years study leave for prosecuting his Post Graduate Study in M.D. - Psychiatrist at Armed Forces Medical College, Pune during the period from 1983 to 1985. According to the petitioner, while prosecuting his P.G. Studies, he married one Nirmala as per Hindu rites in Hanuman Temple, Pune and the said marriage was duly registered with the Registrar of Marriages at Pune on 8-4-1985. The fact of the marriage was also taken cognizance by the respondents by making entries in the official records relating to the petitioner. Subsequently, he was transferred and posted to Military Reformative; Gokkonda, (Prison No. 2). He was also promoted to the rank of "Major" with effect from 24-4-1985 while he was at Secunderabad. It is alleged by the petitioner that his relationship with his wife, viz. Nirmala became strained and she left to her native place at Bangalore. Therefore, the petitioner was constrained to move IInd Additional Judge, City Civil Court, Hyderabad by filing O.P.No. 301 of 1986 for dissolution of the marriage.
While the proceedings were pending, according to the petitioner, his wife Smt. Nirmala wrote to respondents 2 and 4 to take disciplinary action against the petitioner, inter alia, on the ground that he contracted a second marriage with one Anasuya at Tirupathi on 22-8-1986, while the marriage between her and the petitioner is subsisting. On the said complaint of Smt. Nirmala, a, show-cause notice was issued by the Directorate in Proceedings No. 71902/525/D.V.-4 dated 22-6-1988 to show-cause as to why his services should not be terminated u/s 19 of the Army Act read with Rule 14 of the Rules made thereunder. The petitioner submitted a reply on 1-8-1988 to the effect that the O.P. filed by him for dissolution of the marriage with Smt. Nirmala was pending on the file of IInd Additional Judge, City Civil Court, Hyderabad and therefore, plurality of the marriage is sub-judice and no further action which will be prejudicial to the petitioner should be taken in view of the Regulation - 333 (c) (b) of the Army Regulations, 1962. It is also stated in the explanation submitted by the petitioner that he was not provided with the adverse reports, and therefore, requested for withholding the contemplated action. It was specifically pleaded therein by the petitioner that if still the authorities are not satisfied and want to proceed in the matter, he may be allowed to retire prematurely to avoid further inconvenience and embarrassment. However, the authorities passed the impugned order terminating his services by an Order No. 7 (181)/88/D (A6) dated 15-12-1988. The petitioner alleged that the said order was not yet served on him as on the date of filing of this writ petition. The writ petition was filed questioning the said order mainly on two grounds. (1) Any action terminating the services of the employee is subject to the provisions of the Army Act, 1950 and the Rules and Regulations made thereunder. Rule 14 of the Army Rules, 1954 contemplates that before proposing to terminate the services of an Officer u/s 19 of the Army Act, he should be given an opportunity to show-cause in the manner specified in Sub-rule (2) against such action. Sub-rule (2) of Rule 14 contemplates that when after considering the reports on an Officer''s misconduct, the authorities are satisfied that the further retention of the said officer in the service is undesirable, the Chief of the Army Staff shall so inform the Officer together with all the reports adverse to him and he shall be called upon to submit, in writing, his explanation and defence.
In this case, according to the petitioner''s contention, the reports adverse to him as gathered by the respondents were not supplied to him and he was not informed of the same so as to enable him to make an effective representation and therefore, the whole proceedings are vitiated. In-otherwords, the petitioner contends on the language of Sub-rule (2) of ''Rule 14 of the Army Rules, 1954 that all the reports adverse to him, on the basis of which the show-cause notice was issued, have not been supplied to him and, therefore, the order of termination is bad. The second contention raised on behalf of the petitioner is that O.P.No. 301 of 1986 was pending on the file of IInd Additional Judge, City Civil Court, Hyderabad filed by him for dissolution of the marriage with Smt. Nirmala and the same was taken cognizance by the Civil Court of competent jurisdiction and, therefore, the matter should be treated as Sub-judice and the disciplinary action will not be proceeded with till the decision of the Civil Court is rendered. In the present case, even though the above mentioned O.P. is pending and it is sub-judice, the authorities have proceeded and issued the termination orders instead of waiting for the decision of the Civil Court and therefore, it is bad as being contrary to Sub-clause (c) of (C) of Regulation 333 of the Regulations made under the Army Act.
Respondents are resisting the writ petition by filing a counter in which it is mentioned that they have received a petition from Smt. Nirmala intimating that she is the wife of the petitioner herein and that the petitioner married a second wife Smt. Anasuya at Tirupathi on 22-8-1986. In view of the fact that he contracted plural marriage, he is liable for punishment and requested to take action against the petitioner. The said representation was received in the Office of the respondents on 1-5 1987 and the same was served on the petitioner. The petitioner submitted a reply to the complaint made by Smt. Nirmala ( for convenience sake, she will be referred as first wife). He stated in his reply that the allegation of plural marriage is fictitious and that he has not gone through the ceremony of second marriage. After receipt of the reply from the petitioner, on behalf of the respondents, a letter was addressed to the Secretary, DSSA Board, Kolar District on 7-11-1987 stating that Smt. Nirmala, wife of the petitioner, complained that he married one Smt. Anasuya for the second time and therefore, he was requested to in investigate and send a reply to the Office. In terms of the said communication, the Office of the District Magistrate sent a reply on 26-12-1987 stating that the Superintendent of Police, Kolar has reported that the petitioner was married to Smt. Anasuya 11/2 years back. In view of the above, a show-cause notice was issued to the petitioner and he submitted his explanation on 1-8-1988 enclosing a copy of O.P.No. 301 of 1986 on the file of IInd Additional Judge, City Civil Court, Hyderabad which he filed for dissolution of the marriage with Smt. Nirmala. So far as the contentions raised on behalf of the petitioner are concerned, the counter states that they are unsustainable.
On the basis of the above material referred to, Sri M. Ramachandra Reddy, learned counsel for the petitioner raised two contentions:
(1) Mandatory requirement of Sub-rule (2) of Rule 14 of the Army Rules, 1954 is not complied with and, therefore, entire proceedings are vitiated;
(2) O.P.No. 301 of 1986 was pending on the file of IInd Additional Judge, City Civil Court, Hyderabad filed by him for dissolution of the marriage with his first wife and therefore, in terms of Regulation 333, action ought not to have been taken, and the authorities should have waited for the decision of the competent Civil Court in the said O.P.
To appreciate the first contention, it is necessary to extract the relevant provisions. Section 19 of the Army Act, 1950 only says that the termination of services of any employee is subject to the provisions of the Act and the Rules and Regulations made under the Act. Sub-rule (2) of Rule 14 on which reliance is placed is as follows:
"14. Termination of service by the Central Government on account of misconduct - (1) when it is purposed to terminate the service of an Officer u/s 19 on account of misconduct, he shall be given an opportunity to show-cause in the manner specified in Sub-rule (2) against such action:-
Provided ..................................
(2) When after considering the reports on an officer''s misconduct, the Central Government or the Chief of the Army Staff is satisfied that the trial of the officer by a court-martial is inexpedient or impracticable, but is of the opinion, that the further retention of the said officer in the service is undesirable, the Chief of the Army Staff shall so inform the officer together with all reports adverse to him and he shall be called upon to submit, in writing, his explanation and defense"
The submission is that under Sub-rule (2) of Rule 14, when the show-cause notice was issued to the petitioner, the authorities should have given all the reports adverse to him before calling upon him to submit, in writing, his explanation and defence. The authorities have not submitted all the reports which were gathered by them in respect of second marriage and therefore, entire proceedings are vitiated.
Certain basic facts should be kept in mind in dealing with this contention. The fact that the petitioner married Smt. Nirmala on 8-4-1985 is admitted. O.P.No. 301/86 filed by the petitioner on the file of IInd Additional Judge, City Civil Court, Hyderabad itself is proof positive of the said fact. He is seeking dissolution of the said marriage. The fact that the petitioner married Smt. Anasuya at Tirupathi is also not in dispute. Therefore, plural marriages contracted by the petitioner are not in dispute. The petition filed by the first wife before the authorities bringing to their notice about the second marriage with Smt. Anasuya was intimated to the petitioner by giving a copy of the same to him and he, in fact, replied to the said complaint which was received by the authorities on 1-3-1987. Therefore, the copy of the complaint of the first wife was already given to him and he has replied to it. The authorities, to make sure about the allegation, addressed the District Magistrate, Kolar District by a letter dt. 7-11 -1987 requesting him to investigate and send a report to the office. Pursuant to the said letter, the District Magistrate, Kolar District by his letter dt. 26-12-1987 informed the authorities that the petitioner married one Smt. Anasuya 11/2 years back. It is only a communication from the District Magistrate to the authorities stating that the petitioner married Smt. Anasuya about 11/2 years back. There is no report as such. For the verification of the fact of the marriage they have written to the District Magistrate and the District Magistrate after verification sent a letter saying that the allegation that the petitioner contracted second marriage with one Anasuya is correct.
The petitioner did not dispute the fact that he married Smt. Anasuya ( second wife) on 22-8-1986. From the above admitted facts, it is clear that the petitioner married the first wife on 8-4-1985 at Pune and he filed O.P.No. 301 of 1986 on the file of IInd Additional Judge, City Civil Court, Hyderabad on 6-8-1986 for dissolution of the said marriage and that the petitioner married second time Smt. Anasuya on 22-8-1986. These are all admitted facts. In view of the above facts and circumstances, non-supply of the letter of the District Magistrate, Kolar sent to the authorities stating that the petitioner contracted second marriage with Smt. Anasuya 1� years back will have no adverse effect whatsoever. The letter containing the fact which is admitted by the petitioner need not be supplied to him and non-supply of such a letter does not prejudice the petitioner and therefore, it will not vitiate the proceedings. Further, Sub-rule (2) of Rule 14 of the Rules contemplate the supply of reports, if any. Obviously, it contemplates the report made after preliminary investigation. There is no such report in the present case. Strictly speaking, there is no violation of Sub-rule (2) of Rule 14. The rule incorporates principles of natural justice. In a judgment reported in K.L. Tripathi v. State Bank of India, learned judges of the Supreme Court stated as follows:
"The basic concept is fair play in action administrative, judicial or quasi-judicial. The concept of fair play in action must depend upon the particular lis, if there be any, between the parties .............. When on the question of facts there was no dispute, no real prejudice has been caused to a party aggrieved by an order, by absence of any formal opportunity of cross-examination per se does not does not invalidate or vitiate the decision arrived at fairly. This is more so when the party against whom an order has been passed dispute the facts and does not demand to test the veracity of the version of the credibility of the statement".
It was further stated by the learned judges in para 41 of their judgment as follows:
"41. It is true that all actions against a party which involve penal or adverse consequences must be in accordance with the principles of natural justice but whether any particular principle of natural justice would be applicable to a particular situation or the question whether there has been any infraction of the application of that principle, has to be judged, in the light of the facts and circumstances of each particular case. The basic requirement is that there must be fair play in action and the decision must be arrived at in a just and objective manner with regard to the relevance of the materials and reasons. We must reiterate again that the rules of natural justice are flexible and cannot be put on any rigid formula. In order to sustain a complaint of violation of principles of natural justice on the ground of absence of opportunity of cross-examination, it has to be established that prejudice has been caused to the appellant by the procedure followed."
The facts are admitted by the petitioner and therefore, no prejudice is caused to the petitioner in the non-supply of the letter of the District Magistrate, Kolar dated 26-12-1987 written to the authorities stating that the petitioner married one Anasuya about 1� years back which fact is admitted by the petitioner. Therefore, there is no violation of the requirements of Sub-rule (2) of Rule 14 of the Army Rules, 1954 for two reasons. (1) There is no report to be furnished to the petitioner along with the show-cause notice and (2) the fact of the second marriage is admitted and non-supply of the letter of the District Magistrate, Kolar dated 26-12-1987 along with the show-cause notice has not caused any prejudice to the petitioner. Therefore, the first contention has no substance and it is accordingly rejected.
The second contention raised by the petitioner is that as per Regulation 333 (C) (c) pendency of O.P.No. 301 of 1986 on the file of IInd Additional Judge, City Civil Court, Hyderabad ipso facto directs the authorities not to proceed with the enquiry and to await the decision of the Court in the said O.P. The relevant portion of the regulation is as follows:
" (b) A plural marriage solemnised, contracted or performed by any such person is null and void and may, on a petition presented to a court of law by either party thereto, be so declared by a decree of nullity. Not only is the plural marriage void but the offence of bigamy is also committed. This offence is however, triable only on a complaint made to the civil authority by an aggrieved party. The punishment for the offence of a bigamy is prescribed in Sections 494 and 495 of the Indian Penal Code.
(c) When it is found, on receipt of a complaint from any source whatsoever, that any such person has gone through a ceremony of plural marriage, no disciplinary action by way of trial by Court Martial or Summary disposal will be taken against him, but administrative action to terminate his service will be initiated and the case reported to higher authorities in the manner laid down in Sub-para (B) (C) above. In cases where cognisance has been taken by Civil Court of a competent jurisdiction the matter should be treated as sub judice and the decision of the Court awaited before taking any action".
What is contemplated in this regulation is that if a plural marriage is solemnized, contracted or performed by any such person , it is null and void and may, on a petition presented to a Court of law by either party thereto, be so declared by a decree of nullity. If such a proceeding is pending and taken cognisance by a civil court of a competent jurisdiction, the matter should be treated as sub judice and the decision of the Court awaited before taking any action in the disciplinary proceedings. The intention underlying the regulation is clear. A marriage solemnized between any two Hindus while any of the party to the marriage has a spouse living at the time of the marriage, it is a nullity, in view of provisions of Section 5(i) read with Section 11 of the Hindu Marriage Act. If either party to the marriage files an application u/s 11 for a declaration that the marriage is a nullity and the same is being considered by a competent Civil Court, no disciplinary proceedings should be proceeded with pending decision of the competent Civil Court on the validity of the said marriage. A marriage solemnized while one of the party to the said marriage has a spouse living at the time of the marriage, is in law no marriage at all being void ipso jure. It is as though the second marriage is never existed. If that is the situation, there will not be any plurality of marriages and, therefore, no disciplinary proceedings can be taken on that ground. It is precisely for this reason, Regulation 333, referred to above, states that if such a proceeding is pending for declaration that the marriage is a nullity in a competent Civil Court of law, the disciplinary proceedings should not be proceeded with and they should await the decision of the competent Civil Court. It is not the situation in the present case. The petitioner filed the O.P.No. 301 of 1986 on the file of IInd Additional Judge, City Civil Court, Hyderabad for dissolution of the marriage with the first wife on the ground of desertion. This is not a case where any application is pending in a court of law initiated by one of the parties to the second marriage for a declaration that it is a nullity. The regulation applies only if an application is filed for a declaration that the second marriage is a nullity This is very clear from the provisions of the regulations. Hence, the second contention raised on behalf of the petitioner has no legs to stand for the reasons mentioned above. No. O.P. is pending for a declaration that the second marriage is a nullity. Therefore, the authorities are entitled to proceed with the disciplinary proceedings and there is no prohibition from proceeding with the same. In my opinion, the authorities proceeded with the disciplinary proceedings in accordance with law and it is not vitiated, nor is it contrary to the Regulation 333 (c) (b) and (c) of the Regulations made under the Army Act.
In R.K. Pathik v. M.S. Pawar a Division Bench of the Allahabad High Court on a consideration of Section 19 of the Army Act and Rule 14 and Regulation 333 made under the Act held that the authorities were free to take such suitable action in the case of plural marriage.
It is stated by both the counsel that a mercy petition was also filed by the petitioner before the authorities. Taking into consideration that the petitioner is aged 33 years by the date of filing of the writ petition and taking into consideration the facts and circumstances, I have no doubt that the authorities will consider the mercy petition filed by the petitioner for allowing him to take voluntary retirement sympathetically.
For the reasons mentioned above, the Writ Petition is dismissed. No order as to costs.