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Judgment
P.K. Misra, J.—Heard Mr. K. Sridhar, learned Counsel appearing for the petitioners and Mr. S.M. Subramaniam, learned Counsel
appearing for respondent No. 1.
Respondent No. 1 was working under the present petitioners as an Industrial Worker in Class III. Admittedly, he had married one Sakuntala
and at the time of employment, he had nominated her as wife for the purpose of pensionary benefits. Subsequently, respondent No. 1 changed his
nomination and nominated Veni @ Krishnaveni and described that she was the wife. He had also nominated the children born through aforesaid
Krishnaveni.
Subsequently, when the Department discovered such anomaly and called upon Respondent No. 1 to explain, Respondent No. 1 wrote a letter
to the Department stating that he had divorced his first wife Sakuntala in accordance with village customs and had married Krishnaveni thereafter.
It was also pointed out by him in the said letter that a suit for declaration of divorce in respect of the first marriage was pending and necessary
documents would be forwarded to the Department after disposal of the said suit.
Thereafter, the departmental Authorities started departmental proceedings on the allegation that respondent No. 1 had entered into a bigamous
marriage without seeking any prior permission. In the departmental proceedings, the Enquiry Officer, after referring to all the materials on record,
came to the conclusion that the alleged divorce according to the village custom had not been proved and during the subsistence of the first
marriage, the delinquent had entered into a second marriage. The departmental Authorities came to the conclusion that the divorce case was still
pending in the Court and the delinquent was yet to obtain legal divorce and the delinquent, in various nominations, described Veni @ Krishnaveni
as his wife and therefore the plea that he had nominated Krishnaveni as his wife under the compulsion could not be accepted. On the basis of the
said conclusion, the department imposed the punishment of compulsory retirement. After exhausting the departmental remedy available to him, the
first respondent filed Original Application No. 1010 of 2004 before the Central Administrative Tribunal, Madras Bench.
The Tribunal accepted the contention raised by the present respondent No. 1, by observing that there was no evidence to hold that the
delinquent had entered into a contract of marriage with Krishnaveni though they might have been living together. The Tribunal further observed as
follows:
We are not concerned with what happened to the first marriage and whether the first marriage was dissolved by customary divorce. We are
concerned only with the charge that the applicant had contracted bigamous marriage. Admittedly, Krishnaveni is not having a spouse living. There
is no proof of a contract or a marriage of the applicant with Krishnaveni and, the evidence in this case and the finding is to the effect that no such
marriage had taken place.
The Tribunal further concluded as follows:
So far as Rule 21 of the Conduct Rules is concerned, entering into a contract of marriage with a person having a spouse is restricted and in this
case Krishnaveni is not having a spouse living besides it is not possible to accept the charge framed by the Department that the applicant had
entered into a bigamous marriage. In other words, the charge proceeds as though the marriage had taken place without legally divorcing the first
wife. This, we find is a basis infirmity in the charge as well as the findings of the Inquiry Officer which has been accepted without going into the legal
question raised by the applicant. The findings of the Inquiry Officer is perverse, illegal and cannot be sustained.
On the aforesaid basis, the punishment was set aside by the Tribunal. Such order is questioned in the present writ petition by the Department.
A perusal of the aforesaid reasoning of the Tribunal indicates that the Tribunal has not kept in view the scope of Rule 21 of the CCS (Conduct)
Rules, 1964, which is extracted hereunder:
Restriction regarding Marriage.- (1) No Government servant shall enter into, or contract, a marriage with a person having a spouse living; and
(2) No Government servant having a spouse living, shall enter into, or contract, a marriage with any person;
Provided that the Central Government may permit a Government servant to enter into, or contract, any such marriage as is referred to in clause(1)
or Clause (2) if it is satisfied that,:
(a) such marriage is permissible under the personal law applicable to such Government servant and the other party to the marriage; and
(b) there are other grounds for so doing.
A perusal of the aforesaid rule indicates that a person who is already married cannot enter into another marriage while the first marriage is
subsisting. It is of course true that the proviso contemplates regarding taking of permission. The question of taking of permission would arise only
where the personal law applicable to the concerned employee permits bigamous or polygamous marriage. Where the personal law does not permit
second marriage during subsistence of first marriage, the question of obtaining permission from the Department or otherwise is immaterial and a
person entering into bigamous marriage in violation of the personal law can be said to have committed a misconduct. Where bigamous marriage is
permitted under personal law, entering into such bigamous marriage would become a delinquency, if before entering into such bigamous marriage
permission of the Department has not been obtained. The rule similarly contemplates that a Government servant cannot marry another person who
is already married.
The Tribunal, in the present case, was laboring under the misconception that the marriage with Krishnaveni is of no consequence as Krishnaveni
is not having a spouse living at the time of marriage with the delinquent. The rule contemplates that an employee cannot enter into a bigamous
marriage and similarly an employee cannot enter into a marriage with anyone who is already married.
Learned Counsel appearing for the petitioners submitted that the delinquent himself had admitted in various correspondence including his forms
of nomination that he had married Krishnaveni. However, the Tribunal has completely lost sight of aforesaid documentary evidence, when the same
had been furnished by the delinquent himself.
The Tribunal also relied upon the decision of the Supreme Court in Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh (1950-51 annexed as
Annexure A-10), wherein the Supreme Court, while considering the proof of second marriage, observed that there must be strict proof of
solemnization of second marriage for imposing conviction relating to bigamy.
It is no doubt true, as has been held by the Supreme Court, a strict proof relating to the second marriage is required in order to sustain
conviction for bigamy. However, the principle of applying strict proof beyond reasonable doubt is not applicable to the departmental proceedings.
Therefore, the Tribunal has misdirected itself by placing reliance upon the Supreme Court, which dealt with a criminal case for bigamous marriage.
On the other hand, the Tribunal has lost sight of the delinquent''s admission regarding both the marriages. In the letter written by the delinquent,
he had claimed about the divorce of his first wife according to the village custom and thereafter, he married Krishnaveni. However, the delinquent
failed to adduce any evidence on record in support of existence of any such village custom as well as evidence relating to factum of divorce
according to village custom. It is not disputed that the civil suit filed by the present respondent No. 1 relating to alleged divorce has been dismissed.
In these circumstances, when the delinquent has failed to prove the divorce of the first wife and the delinquent himself has admitted the
marriage with Krishnaveni, there is no other alternative than to quash the findings rendered by the Tribunal. Hence, the order passed by the
Tribunal is set aside and the order passed by the Department is restored. The writ petition stands allowed. Consequently, the connected W.P.M.P.
is closed. No costs.